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Litigation-the Art of
Strategy and Practice
Litigation-the Art of
Strategy and Practice

Allen Waiyaki Gichuhi

Published by
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© Allen Waiyaki Gichuhi Reprint 2018
© Allen Waiyaki Gichuhi 2017; LawAfrica

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 Table of Contents
Page
Preface........................................................................................................... xvii
Acknowledgment........................................................................................... xix
Table of Cases................................................................................................. xxi
Table of Statutes.............................................................................................. xxxvii
Chapter 1: Pleadings Without Tears- Tips In Civil Litigation...
1.1 Introduction........................................................................................... 1
1.2 Amendment of Pleadings........................................................................ 1
1.2.1 Indicate how the amendment was made....................................... 2
1.2.2 Is failure to show the endorsement as regards the amendment fatal? 3
1.2.3 Can a party amend a notice of motion?....................................... 3
1.2.4 The Court of Appeal may allow an amendment that cures the
defect in an application................................................................ 3
1.2.5 When the High Court declines the amendment of an application 4
1.2. 6 Always seek leave prior to amending an application..................... 5
1.2.7 Amending the Notice of Motion in Judicial Review Proceedings 7
1.2.8 Tips............................................................................................. 11
1.3 Extension of the validity of summons- the principles in the exercise
Stof judicial discretion............................................................................ 12
1.4 Suit abates if summons not collected within 30 days............................... 13
1.5 Laxity and laches defeat applications for extension of time...................... 14
1.6 Cases on extension of validity of summons post the 2010 constitution.... 15
1.7 Enlargement of time............................................................................... 20
1.8 Grounds for the exercise of Judicial Discretion in Extending the Validity of
Summons............................................................................................... 21
1.8.1 Good Reasons for Extensions...................................................... 22
1.8.2 Bad Reasons for Extensions......................................................... 22
1.9 Substituted service.................................................................................. 22
1.10 Tips....................................................................................................... 23
1.11 Preliminary objections............................................................................ 24
1.11.1 Do not raise preliminary objections not set out in the defence..... 26
1.11.2 A preliminary objection must fail if evidence must be led............ 28
1.11.3 Tips............................................................................................. 31
1.12 The lawyer’s eternal saving grace- the oxygen principles and the inherent
power of the court................................................................................. 31
1.12.1 The Overriding Objective............................................................ 33
1.12.2 Various instances where courts apply the oxygen principles.......... 34
 Allen Gichuhi
vi Litigation-The Art of Strategy and Practice

1.12.3 The Position Post The 2010 Constitution – Article 159 of the
Constitution- Not A Panacea for Ignoring Rules and Statutory
Constraints.................................................................................. 35
1.12.4 Lack of a Notice of Appeal cannot confer jurisdiction on the Court
of Appeal.................................................................................... 36
1.12.5 The Overriding Objectives- vis a vis Article 159
of the Constitution...................................................................... 37
1.12.6 Duty of an Advocate in furthering the overriding objectives by getting
on with the case.......................................................................... 38
1.12.7 Article 159 will not shield one from indolence and sloppiness...... 39
1.12.8 Disobedience of Court orders will not be cured by the oxygen
principles..................................................................................... 40
1.12.9 Tips............................................................................................. 44
1.13 Admissions in pleadings-the necessity for precision and clarity in pleadings 44
1.13.1 An allegation of fact unless traversed is admitted.......................... 47
1.13.2 Tips............................................................................................. 49
1.14 Arrest a judgment or ruling.................................................................... 49
1.14.1 Tips............................................................................................. 54
1.15 Notice of withdrawal or discontinuance of a suit.................................... 54
1.15.1 Distinction between discontinuance and a withdrawal.................. 54
1.15.2 General circumstances when a party opts to discontinue or withdraw a
suit.............................................................................................. 55
1.15.3 When does a notice of withdrawal take effect?............................. 56
1.15.4 Subsisting injunctive orders collapse when suit is withdrawn
or discontinued........................................................................... 57
1.15.5 Do contempt proceedings survive a suit that has been withdrawn
or discontinued?.......................................................................... 58
1.15.6 New suit may be stayed if costs not paid in the discontinued suit.. 60
1.15.7 Discontinuing a suit does not destroy the undertaking as to damages 60
1.15.8 Tips............................................................................................. 61
1.16 Liquidated demands............................................................................... 62
1.16.1 Do not apply for default judgment by way of a letter................... 63
1.16.2 A liquidated demand must not require investigation beyond mere
investigation................................................................................ 65
1.16.3 Only final judgment is envisaged when applying for judgment on a
liquidated demand....................................................................... 66
1.16.4 Tips............................................................................................. 67
1.17 Lifting The Veil Of Incorporation........................................................... 67
1.17.1 Scenario 1................................................................................... 67
1.17.2 Scenario 2................................................................................... 70
1.17.3 The court can summon any officer of the company..................... 76
Allen Gichuhi
Table of Contents vii

1.17.4 Tips............................................................................................. 78
1.18 Garnishee Proceedings – The Illegality of Attaching a Bank’s Property.... 80
1.18.1 An account subject to a lien by way of legal charge cannot be
garnisheed if the charge debt has not been paid............................ 84
1.18.2 Can you garnishee money deposited in court?............................. 87
1.18.3 Tips............................................................................................. 89
1.19 Limitation – Does A Decree or Order For Eviction Become Time-Barred? 90
1.19.1 Tips............................................................................................. 92
1.20 Payment of Auctioneers’ Fees upon Proclamation/Attachment-
Should they Be Based on Value of Goods Attached or the Decretal Sum? 93
1.21 Review.................................................................................................. 94
1.21.1 Failure to extract the decree or order not fatal to
an application for review............................................................. 95
1.12.2 Tips............................................................................................. 97
1.22 Instituting Legal Proceedings On Behalf Of Companies-
Challenges A Lawyer Faces when Confronted with applications to
Strike Out Suit For Lack Of Resolution................................................. 98
1.22.1 The new precedent set by the Court of Appeal............................. 102
1.22.2 Is there need for a Resolution to File Affidavit and Instruct an
Advocate?.................................................................................... 103
1.22.3 Tips............................................................................................. 104
1.23 Arbitration Clause In A Contract- Where the is no Dispute
the Matter should not be Referred to Arbitration................................... 105
1.23.1 Admitted debt should not be referred to arbitration...................... 108
1.23.2 Tips............................................................................................. 113
1.24 Challenges to Affidavits- Shutting Pandora’s Box.................................... 115
1.24.1 Court should not strike out Affidavits suo moto........................... 117
1.24.2 A court should not condemn a party unheard.............................. 118
1.24.3 Mode of exhibiting documents in Affidavit not fatal.................... 119
1.25 Injunctions............................................................................................. 121
1.25.1 What is the object of an interlocutory injunction?........................ 122
1.25.2 Tips............................................................................................. 122
1.26 The Perils of Perjury When Swearing False Affidavits.............................. 123.
1.26.1 The case of the duplicitous Plaintiff............................................. 124
1.26.2 Police may be directed to investigate a litigant over perjury.......... 124
1.27 Mandatory Injunction............................................................................ 130
1.28 An application for a mandatory injunction is made under section 3A of the
Civil Procedure Act................................................................................ 134
1.28.1 The danger of omitting the prayer for “permanent injunction” may
leave you in tears......................................................................... 135
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viii Litigation-The Art of Strategy and Practice

1.28.2 Does an injunctive order lapse if not served within three days?..... 136
1.28.3 Tips............................................................................................. 136
1.28.4 When a court rigidly applies the three-day rule........................... 137
1.28.5 Courts have departed from the stringent three-day rule................ 137
1.29 Duty of parties to obey court orders....................................................... 139
1.30 A purchaser at a public auction must be made a party to the suit............. 142
1.31 An ex-parte injunctive order is only valid for 14 days.............................. 143
1.32 Knowledge of court orders..................................................................... 143
1.33 Material non-disclosure- the bane of the secretive client......................... 145
1.33.1 Courts Set Aside Ex-parte Orders Obtained through Material
Non-Disclosure........................................................................... 146
1.34 Undertaking as to damages..................................................................... 148
1.34.1 What is the object of the undertaking as to damages?................... 148
1.34.2 Courts should be vigilant and order undertakings to be given...... 149
1.34.3 The Australian case of Love v Thwaites – beware of seeking an
injunction and suffering an award of damages thereafter............... 150
1.35 Can the court issue an injunction pending appeal once the main
injunction has been dismissed?................................................................ 152
1.35.1 What time limit should the injunction remain in force under the
Erinford principles?..................................................................... 153
1.35.2 Lapse of injunction if not determined within one year................. 154
1.35.3 Apply for extension of time if the injunction order is about
to lapse........................................................................................ 159
1.35.4 Tips............................................................................................. 163
Chapter 2: Trial Advocacy in the Civil Cases – Vanquishing
the Shackles of Legal Complacency...................................... 165
2.1 Preparation of witness statements, documents and submissions under
the Civil Procedure Rules, 2010............................................................ 165
2.1.1 Introduction................................................................................ 165
2.1.2 Court in the driving seat............................................................. 165
2.1.3 Benefits of case management....................................................... 165
2.1.4 Court retains power to strike out pleadings.................................. 166
2.1.5 Issues for determination prior to trial........................................... 166
2.1.6 Court can penalize party with costs for obstructing justice........... 166
2.1.7 Determination of old cases.......................................................... 166
2.1.8 Striking out Pleadings on Technicalities vis a vis
Oxygen principles....................................................................... 166
2.1.9 Application of Overriding Principles must have backing of facts
and law........................................................................................ 167
2.1.10 Parties must not abuse court process............................................ 167
Allen Gichuhi
Table of Contents ix

2.2 The Overriding Principles...................................................................... 167

2.2.1 The court’s duty to further the overriding objective..................... 168
2.2.2 Duty of Advocate to further the overriding objective................... 168
2.3 Documents to accompany suit................................................................ 168
2.3.1 Order of production of documents.............................................. 169
2.3.2 Preparation of the Bundle of Documents..................................... 169
2.4 The case of privileged documents and without prejudice
correspondence...................................................................................... 171
2.4.1 Should an employee be permitted to rely on illegally obtained
or privileged evidence in support of his suit for termination of
employment?............................................................................... 171
2.4.2 Documents may be struck out..................................................... 182
2.5 List of Witnesses to be called at the trial.................................................. 182
2.5.1 Fluency of witnesses.................................................................... 183
2.5.2 Written statements signed by the witnesses excluding
expert witnesses........................................................................... 183
2.5.3 Format of the witness statement................................................... 184
2.5.4 Content in Witness Statement...................................................... 184
2.5.5 Sample Witness Statement........................................................... 186
2.5.6 Analysis....................................................................................... 188
2.5.7 Summary of the contents of a Witness Statement......................... 188
2.5.8 Evidence in Chief....................................................................... 189
2.5.9 There is no property in a witness................................................. 189
2.5.10 Adverse inference........................................................................ 190
2.5.11 Expert Witnesses.......................................................................... 191
2.5.12 An expert must establish his credibility........................................ 193
2.5.13 Expert’s opinion not binding on Court........................................ 194
2.5.14 Only an expert can rebut another expert’s opinion....................... 196
2.6 Submissions............................................................................................ 198
2.6.1 Written persuasion provides the best opportunity to persuade
a judge........................................................................................ 199
2.6.2 Your writing style can affect all three classical
persuasion processes..................................................................... 199
2.6.3 Advocacy experts suggest some specific tips................................. 200
2.6.4 Other Golden Rules.................................................................... 202
2.7 Authorities............................................................................................. 207
2.7.1 List of authorities......................................................................... 207
2.8 Conclusion............................................................................................. 208
 Allen Gichuhi
x Litigation-The Art of Strategy and Practice

Chapter 3: Practice Directions - The Golden Guides towards

Improving Efficiency in Court............................................... 209
3.1 Introduction........................................................................................... 209
3.2 Practice directions- what is their role and purpose?................................. 209
3.3 List of Practice Directions and Rules since 1961 to date.......................... 210
3.4 Decisions on Practice Directions............................................................ 211
3.5 Which court has jurisdiction when the statutory power of sale by a bank
is being challenged?................................................................................ 217
3.6 Courts can share concurrent jurisdiction in matters over land................. 218
3.7 Shareholders dispute over company that owns land................................. 218
3.8 Issuance of Status Quo orders................................................................. 219
3.9 Analysis of the Practice Directions issued in 2014 and 2015.................... 220
3.10 Challenges in Implementing the Practice Directions............................... 220
3.11 Court of Appeal Directions on Submissions............................................ 221
3.11.1 Written Submissions:................................................................... 221
3.11.2 At the Case Management Conference.......................................... 222
3.11.3 Authorities.................................................................................. 222
3.11.4 Costs Sanctions may be imposed for lengthy submissions............. 222
3.12 Cases on Incivility in Submissions and Pleadings..................................... 224
3.13 Cases can be disposed of by written submissions..................................... 227
3.14 Conclusion............................................................................................. 228
Schedule A............................................................................................. 229
Schedule B............................................................................................. 235
Appendix A............................................................................................ 238
Appendix B............................................................................................ 240
Schedule C............................................................................................ 242
Annex A................................................................................................. 248
Annex B................................................................................................ 248
Annex C................................................................................................ 248
Annex D................................................................................................ 249
Annex E................................................................................................. 249
Annex F................................................................................................. 249
Annex G................................................................................................ 250
Annex H................................................................................................ 250
Annex J.................................................................................................. 250
Chapter 4: A Litigator’s Guide to Topical Constitutional
Issues-Simplicity in Demystifying the Complex........................ 253
4.1 Preamble................................................................................................ 253
4.2 The Bill of Rights.................................................................................. 255
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Table of Contents xi

4.2.1 The Bill of Rights can be enforced against private citizens........... 256
4.2.2 Persons obligated to observe the Bills of Rights........................... 256
4.3 What are conservatory orders?................................................................ 257
4.4 The Constitution of Kenya (Protection of Rights and
Fundamental Freedoms) Practice and Procedure Rules, 2013.................. 257
4.4.1 Form of the Petition.................................................................... 258
4.4.2 Response to the Petition............................................................. 259
4.4.3 Hearing of Petition...................................................................... 259
4.4.4 Consolidation of Pending Petitions.............................................. 260
4.5 The High Court.................................................................................... 261
4.6 When does one seek an uneven number of judges to hear a constitutional
petition?................................................................................................. 262
4.7 Do not file a Constitutional Petition where other remedies lie................ 263
4.7.1 Petition dismissed as remedy provided for in the
Political Parties Act, Act No. 11 of 2011....................................... 265
4.7.2 If statute provides for an appeal before a tribunal,
exhaust your remedy there before moving to the High Court...... 266
4.8 Only apply to join in a suit if you have a genuine interest in the outcome 267
4.9 Right to a fair trial and due process........................................................ 267
4.9.1 Does the right to a fair trial extend to disciplinary hearings instituted
by the employer?......................................................................... 267
4.9.2 Duplex charge sheets................................................................... 268
4.9.3 When will a court interfere with a criminal investigation?............ 269
4.9.4 When will the Court stop the criminal process?........................... 271
4.10 Duty of public officers to follow judicial decisions.................................. 275
4.11 Protection of Right to Property............................................................. 275
4.11.1 The case of irregular/back door acquisition of land without
compensation.............................................................................. 276
4.11.2 Right to property and due process............................................... 277
4.11.3 Breach of fundamental rights if property compulsorily acquired by
customs officials........................................................................... 278
4.11.4 Taxation laws must not deprive citizens of their property............. 279
4.11.4 The law on restitution and interest payable on ultra vires and illegal
demand by tax authority.............................................................. 279
4.12 Article 159 of the Constitution – Not a panacea for ignoring rules and
statutory constraints................................................................................ 280
4.12.1 Lack of a Notice of Appeal cannot confer jurisdiction on
the Court of Appeal..................................................................... 281
4.12.2 The Overriding Objectives- vis a vis Article 159
of the Constitution..................................................................... 281
4.12.3 Lack of a Practising Certificate- will Article 159 offer redemption? 282
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xii Litigation-The Art of Strategy and Practice

4.12.4 Article 159 will not shield one from indolence and sloppiness...... 289
4.12.5 Observe the timelines when granted leave to file the
Notice of Motion in judicial review proceedings......................... 290
4.12.6 Rules of Evidence must be observed............................................ 290
4.12.7 Article 159 promotes use of Alternative Dispute Resolutions
mechanisms................................................................................. 291
4.12.8 Avoid Forum Shopping............................................................... 291
4.13 is there a time bar on enforcement of fundamental rights........................ 292
4.14 Equality and freedom from discrimination.............................................. 292
4.14.1 Discrimination defined................................................................ 293
4.14.2 Private clubs must observe rules of natural justice......................... 294
4.14.3 Disclosure of Medical Condition is breach of right to dignity...... 294
4.14.4 Exemplary damages for discrimination......................................... 296
4.15 Conclusion............................................................................................. 297
Schedule................................................................................................ 298
Chapter 5: Court Mandated Mediation- The Final Solution to
Expeditious Disposal of Cases............................................... 309
5.1 Introduction........................................................................................... 309
5.2 Why embrace alternative dispute resolution mechanisms?....................... 309
5.3 Mediation – what is it?........................................................................... 311
5.4 Mediators – who are they?..................................................................... 311
5.5 Mediation- what are the benefits?........................................................... 311
5.6 When does mediation work?.................................................................. 311
5.7 The stakeholders.................................................................................... 312
5.8 Sources of inspiration............................................................................. 313
5.9 Comparative analysis of other jurisdictions that embraced mediation....... 314
5.9.1 Canada........................................................................................ 314
5.9.2 The United States........................................................................ 316
5.9.3 The English System..................................................................... 317
5.9.4 Cost Sanctions on Refusal to Mediate......................................... 320
5.10 Other than mediation – court mandated arbitration referred to the
Deputy Registrar may be heard in public................................................ 321
5.11 Amendments to the Civil Procedure Act................................................ 324
5.12 The Mediation (Pilot Project) Rules, 2015............................................. 327
5.13 Evaluation of Past Pilot Schemes in Other Jurisdictions.......................... 341
5.14 Conclusion............................................................................................. 342
Chapter 6: Principles of Taxation: Procedures and Law.......... 343
6.1 Introduction........................................................................................... 343
Allen Gichuhi
Table of Contents xiii

6.2 What happens when new Legal Notices delete Schedules and inserts new
ones?...................................................................................................... 344
6.3 Part IX of The Advocates Act.................................................................. 344
6.3.1 Agreements with respect to remuneration.................................... 344
6.3.2 Liberty of Advocate to Elect Schedule V- Only Applies to Non-
Contentious Matters.................................................................... 345
6.3.3 Invalid Agreements...................................................................... 346
6.4 Jurisdiction of Taxing Masters Where Parties Have Recorded a Consent under
Section 45 of the Advocates Act.............................................................. 351
6.5 Retainer – Does Not Have to Be Exhibited as it is Simply a Set of
Instructions............................................................................................ 352
6.6 Retainers and Local Authorities/Government Bodies – Where Public Money
will be Expended................................................................................... 353
6.7 Taxing Officer........................................................................................ 354
6.8 What is Taxation?................................................................................... 354
6.8.1 Bill of Costs................................................................................ 354
6.8.2 Powers of Taxing Officer............................................................. 354
6.8.3 Discretion of Taxing Officer........................................................ 355
6.8.4 Taxation of costs in contentious and other matters....................... 356
6.8.5 Criminal Cases – Costs Taxed Under Schedule V......................... 356
6.8.6 Taxation in the Industrial Court.................................................. 357
6.8.7 Instruction fee............................................................................. 357
6.8.8 Value of the subject matter refers to claim in prayers
against litigants............................................................................ 359
6.8.9 Determination of subject matter when suit has not been
concluded or suit has been dismissed where a sum inclusive
of interest is claimed.................................................................... 361
6.8.10 Speculative Claims....................................................................... 361
6.8.11 Defamation Cases........................................................................ 362
6.8.12 Judgment entered for sum with specified interest rate................... 362
6.8.13 Suit for Specific Performance...................................................... 363
6.8.14 When value of subject matter cannot be ascertained.................... 363
6.8.15 Duty of taxing officer to set out the basic instruction fee............. 364
6.8.16 Basic fee where claim settled for a less sum than the sum claimed. 366
6.8.17 Public Interest Litigation – Constitutional Petitions and Judicial
Review Applications.................................................................... 366
6.8.18 When suits are consolidated there should be an
apportionment of costs including the instruction fees.................. 368
6.8.19 Getting Up Fees.......................................................................... 369
6.9 Arbitration matters................................................................................. 372
 Allen Gichuhi
xiv Litigation-The Art of Strategy and Practice

6.9.1 Residual scale fees apply in application to enforce, set aside arbitral
award or refer a matter to arbitration............................................ 373
6.10 Costs – ordinary or higher scale.............................................................. 375
6.10.1 Costs of Interlocutory Applications.............................................. 375
6.11 Notice of taxation.................................................................................. 376
6.12 Attendances............................................................................................ 377
6.13 Folio...................................................................................................... 377
6.14 Witness Expenses................................................................................... 377
6.15 Unreasonable costs/expenses may not be allowed.................................... 378
6.16 Change of Advocates.............................................................................. 380
6.17 When can a party be deprived of costs?.................................................. 382
6.18 Thrown Away Costs............................................................................... 383
6.19 VAT is not payable on party and party costs............................................ 383
6.20 Registrar to record consent order as to costs........................................... 384
6.21 Costs in the High Court may be restricted to subordinate courts’ scale.... 384
6.22 Reasons contained in the ruling – no need to ask for reasons.................. 384
6.23 Advocate-Client Bills of Costs................................................................ 385
6.23.1 Success or failure not a consideration in Advocate-Client Bills of Costs
................................................................................................... 386
6.24 Certificate of Taxation is Final................................................................ 386
6.25 Taxation in succession matters – instruction fees should be based on the
beneficiary’s entitlement to the estate and not the gross value of the estate.
.............................................................................................................. 386
6.26 Schedule 11- Costs of Proceedings before Tribunals other than those under
Schedules 8 and 9 of this order Except Where otherwise Prescribed
under the Act Setting Up the Tribunal.................................................... 387
6.27 Bills of Costs should be filed within 6 years............................................ 389
6.27.1 Tips............................................................................................. 395
6.28 Do not File a Reference when a Bill of Costs is Pending Taxation.......... 396
6.29 Conclusion............................................................................................. 397
Chapter 7: When the Criminal Process is Abused.................... 399
7.1 Introduction........................................................................................... 399
7.2 Right to A Fair Trial and Due Process..................................................... 400
7.3 Case Study 1:Duplex Charge Sheets Defined - The Case of
Kengeles Holdings Ltd v Republic.............................................................. 400
7.4 Case Study 2: The Food Drugs and Chemical Substances Act-
Republic v Fairview Hotel.......................................................................... 402
7.5 Case Study 3: Criminal Process Being Used in A Coercive Manner to Collect
Revenue-Republic v Nairobi City Council & 2 others Ex-Parte Barclays Bank of
Kenya Limited......................................................................................... 407
Allen Gichuhi
Table of Contents xv

7.6 Case Study 4: Public Health Act-Non-Disclosure of Offence or Non-Existent

Offence-Barclays Bank of Kenya v City Council of Nairobi.......................... 408
7.7 Case Study 5: Non-Existent Offences Under Traffic Act......................... 412
7.8 Case Study 6: To Speed or not to Speed – What does the Traffic Act Say? 413
7.8.1 When the attendance of an accused may be dispensed with.......... 413
7.8.2 Speed limits and the penalties imposed – the great deception where
illegal fines are imposed............................................................... 414
7.8.3 Tips............................................................................................. 421
7.9 Analysis of case law on when courts intervene to quash charges.............. 423
7.9.1 Charge brought for collateral purpose.......................................... 423
7.9.2 Breach of rules of natural justice – not following due process....... 424
7.9.3 When will a court interfere with a criminal investigation?............ 424
7.9.4 It is the duty of an advocate to object to a duplex charge sheet.... 424
7.9.5 When the landlord uses the criminal process to evict tenants........ 431
7.10 Conclusion............................................................................................. 435
 Preface
Since High School, I knew that I wanted to be become a litigator. I now live my
dream. I believe in reform and have always strived to bring about positive change.
This book is a compilation of the various training papers that I presented to
advocates and judicial officers since 2005. My famous lecture “Pleadings Without
Tears” (delivered in 2005) has been expanded from the original 19 pages to about 200
pages and forms the first chapter.
Every time I presented a paper at any training, I made sure that I researched on
case law to address topical legal issues. After presentation of the paper, I would add in
the various useful commentaries and contributions from the audience and thus enrich
the paper further. Over the years many colleagues would consult me on various legal
issues. I never forgot those questions and have incorporated them in the book.
My zeal for practice matters made me realize the frustrations shared by the bar
and the bench in the lack of a quick reference guide to topical legal issues. I realized
that there is a dearth of books on litigation practice. I hope that this book will partly
fill that lacuna. I have strived to address various aspects of practice with a view to
improving the expeditious disposal of cases.
The book is not meant to be the final solution to all practical legal problems but
rather seeks to provide a quick reference to the common topical issues the litigator
faces in court. I have set out various tips and strategies- some that I have successfully
employed over the years. Litigation is all about strategy and preparation.
My next book in the pipeline will deal with various topical legal issues surrounding
land law, banking, money laundering and any other useful topic that I research on.
Finally, all errors and omissions for all sections remain my responsibility.
The law in this book is that applicable in Kenya as at the end of November 2016.

Allen Waiyaki Gichuhi C.Arb.

December 2016
 Acknowledgment
I am proud to have participated in the drafting of various Practice Directions, Court
Mandated Mediation Rules and Advocates Remuneration Orders over the years and
truly appreciate the wonderful contribution from all my colleagues and the judicial
officers who sacrificed time and effort to improve the practice of law. Many colleagues
do not realise the hard work that goes in research and preparation of any Practice
Direction by the few dedicated members of the profession. They are the silent and
unsung heroes whose quest to make practice better constantly goes unnoticed. I
dedicate my book to them and to all the judges and deputy registrars in the Court
of Appeal and the High Court who were involved in the drafting of various Practice
Directions. Truly we moved mountains!
I have drawn inspiration from countless colleagues in the legal profession.To them
I say asante sana for your words of wisdom.
To all my mentees out there- this is book is dedicated to you.You make me proud
when you succeed. May this book be your constant companion in practice.
My immense gratitude goes to the team at LawAfrica. For years, they encouraged
me to write after I first broached the idea of publishing a book. I finally took up the
gauntlet in July 2016 and updated all my past papers in less than two months. From an
initial 200 pages, I increased my research to over 500 pages.
I also thank all my colleagues in my firm for their support when I decided to
write the book.You are all truly special and appreciated. My partner Charles has been
wonderful in encouraging me to write this book and his words of encouragement
inspired me to soldier on.
Finally, no man is complete without the love and support of his family.To my wife,
Naomy and our two wonderful children Antonio and Nella, who suffered my absence
on account of the long hours I spent writing this book, your love and support made
this possible. My thirst for reading was fueled at a tender age by my mum. Mum- I
thank you for the years of sacrifice and love
 Table of Cases

A
A.S. Sheikh Transporters Ltd v Barclays Bank of Kenya Ltd [2010] eKLR.............. 65
Abdul Aziz Juma v Nikisuhi Investment and 2 Others [2013] EKLR....................282
Abdulraz ak Khafan and another v Supersonic Travel and Tours Ltd and another
[2005] eKLR................................................................................................206
Abincha and CoAdvocates v Trident Insurance Co Ltd [2013] eKLR...................390
Abok James Odera T/A A.J Odera and Associates v John Patrick Machira T/A
Machira and Co. Advocates [2013] eKLR..............................................34,36,37
Abok James Odera T/A A.J Odera and Associates v John Patrick Machira T/A
Machira and Co. Advocates [2013] EKLR.....................................................281
Abraham Kaisha Kanzika v Governor Central Bank of Kenya and others
[2006] eKLR................................................................................................263
Abraham Mwangi v S. O Omboo and others,
High Court Civil Case No. 1511 of 2002......................................................118
Adams v Cape Industries Plc [1990] 1 Ch 433...................................................... 68
African Safari Club Ltd v Safe Rentals Ltd (CA) [2010] eKLR............................167
Agnes Mukami and 5 others v Ngewaji Co. Ltd [2005] eKLR.............................. 28
Ahmed v R [1957] EA 523..................................................................................194
Ahmednasir Abdikadir and Company Advocates v National Bank of Kenya Limited
[2006] 1 EA 5...............................................................................................385
Ahmednassir Abdikadir & Co. Advocates v National Bank of Kenya Ltd
[2006] 1 EA 5 (CCK)...................................................................................346
Al Yusra Restaurant Limited v Kenya Conference of Catholic Bishops and another
[2014] eKLR................................................................................................257
Alexander Ward and Co. Ltd v Samyang Navigation Co. Ltd
[1975] 2 All ER 424...................................................................................... 99
Amosam Builders Developers Ltd v Betty Ngendo Gachie and others
[2009] eKLR...............................................................................................195
Anne Augusta M Lusaka v Ruth Awinja,
Nairobi (Milimani) HCCC No. 1404 of 2001..............................................362
Arnacherry Limited v Attorney General [2014] eKLR.........................................277
Arthi Highway Developers Limited v West End Butchery Limited and 6 others
[2015] eKLR................................................................................................104
Arthur v Nyeri Electricity Underwriters [1961] EA 492......................................365
Asea Brown Boveri v Bawaz ir Glass Works Ltd and another [2005] 1 EA 17........369
Associated Provincial Pictures v Wednesbury Corporation (1948) 1 KB, 223.........411

B
Bank of New Zealand v Harry M. Miller and Co. Ltd (1992) 26 N.S.W.L.R. 48... 86
Bank voor Handel en Scheepvaart N.V. v Slatford [1953] 1 Q.B. 248 at 278.......... 71
Barclays Bank of Kenya Limited v Patrick Njuguna Kubai [2014] eKLR............... 17
 Allen Gichuhi
xxii Litigation-The Art of Strategy and Practice

Barclays Bank of Kenya Ltd v Kepha Nyabera and 191 others and another
[2013] eKLR................................................................................................. 84
Barclays Bank of Kenya v City Council of Nairobi [2005] eKLR.........................273
Baseline Architects Limited v and others v National Hospital Insurance
Fund Board Management [2008] eKLR........................................................174
Beijing Industrial Designing and Researching Institute v
Lagoon Development Limited [2015] eKLR.................................................. 55
Beijing Industrial Designing and Researching Institute v
Lagoon Development Limited...................................................................56,58
Bekya Floriculture Limited v Gimalu Estates Limited [2016] eKLR.....................139
Bhag Bhari v Mehdi Khan Civil Case No. 96 of 1960..........................................369
Bhagwanji Premchand and others v J M Gomes and others
(1956) 23 EACA 296....................................................................................354
Bhagwanji Premchand and others v J. M. Gomes and others
(1956), 23 E.A.C.A. 296................................................................................380
Biguzzi v Rank Leisure [1999]1 WLR 1926.........................................................166
Bi-mach Engineers Limited v James Kahoro Mwangi [2011] eKLR...................... 39
Black-Clawson International Ltd v Papierwerke Waldhof –
Aschaffenberg AG 1975 AC 591....................................................................264
Brampton Investment Limited v Attorney General and 2 others [2013] eKLR......368
Bugerere Coffee Growers Ltd v Sebaduka and another [1970] EA 147..........101,103
Burchell v Burchell, Case No. 364/2005............................................................... 58
Butt v Rent Restriction Tribunal [1982] KLR 417..............................................152

C
C.O.M. v Standard Group Limited and another [2013] eKLR..............................294
Caltex Oil Limited v Evanson Wanjihia................................................................. 35
Caltex Oil Limited v Evanson Wanjihia,
Nairobi civil application number 190 of 2009 (unreported)............................ 42
Castanho v Brown and Root (Uk) Ltd and another
[1981] 1 All ER 143...................................................................................... 59
CB Richard Ellis, Inc. v American Environmental Waste Management
1998 US Dist. LEXIS 20064.........................................................................316
CD De Souz a v Sharma (1953) 26 EACA 41......................................................194
Charles Lukeyen Nabori and others v the Hon. Attorney General and others
Nairobi HCCP No. 466 of 2006...................................................................254
Charles Ray Makuto v Almakony Limited and another [2016] eKLR................... 70
Cherere s/o Gukuli v Republic (1955) 22 EACA 478..........................................269
Cherere s/o Gukuli v Republic (1955) 22 EACA 478..........................................401
Chilanga David Mwenda and others v Commissioner of Lands and others
2009/HK/569............................................................................................... 49
China Sichuan Corporation for International Techno-Economic Co-operative
(Sietco) v Kigwe Complex Limited [2013]eKLR..........................................108
Choice Investments Ltd v Jeromnimon [1981] QB 149 at 154-155....................... 82
Allen Gichuhi
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Christopher Ndarathi Murungaru v Standard Limited and others [2012] eKLR...254

Chunilal v Mehta v Century Spinning and Manufacturing Co.
AIR 1962 SC 1314.......................................................................................262
Church Road Development Co. Ltd v Barclays Bank of Kenya Ltd and others
[2006] eKLR................................................................................................. 60
City Chemist (NB1) Mohamed Kasabuli suing for and on behalf of the Estate of
Halima Wamukoya Kasabuli v Orient Commercial Bank Limited, Nairobi civil
application number 302 of 2008 (UR.199/2008)........................................... 34
City Council of Nairobi v Barclays Bank of Kenya Limited [2013] eKLR............409
Coach Safaris Limited v Gusii Deluxe Limited [1997] eKLR................................ 66
Commerce Bank Ltd v Paradiso Court Ltd (2000) LLR 2681 (CCK)..................115
Commissioner of Income Tax v Westmont Power (K) Ltd
[2006] 1 EA 54 (CAK)..................................................................................397
Commissioner of Income Tax v Westmont Power (K) Ltd Nairobi Income Tax
Appeal No. 626 of 2002................................................................................279
Communications Commission of Kenya and 5 Others v Royal Media Services
Limited and 5 others [2014] EKLR...............................................................263
Communications Commission of Kenya and others v Royal Media Services Limited
and 7 others [2014] EKLR............................................................................259
Corporate Insurance Co. Ltd v Savemax Insurance Brokers Ltd
[2002] 1 EA 41(CCK)................................................................................... 73
Corporate Insurance Co. Ltd v Savemax Insurance Brokers Ltd and another, High
Court Civil Case No. 125 of 2002................................................................. 77
Corporate Insurance Company v Loise Wanjiru Wachira [1996] eKLR.................113
Corporate Insurance Company v Loise Wanjiru Wachira......................................110
County Council of Bureti v Kennedy Nyamokereri t/a Nyamokereri and
Company Advocates Kericho High Court Misc. Appeal No. 102 of 2005......353

D
D N Njogu and Company Advocates v Kenya National Capital Corporation,
Misc. Civil App. No. 21 of 2005....................................................................361
Daniel Musinga T/A Musinga & Co. Advocates (sic) v Nation Newspapers Limited
[2006] EKLR...............................................................................................296
Danish Mercantile Co. Ltd v Beaumont and another [1951] 1 All ER 925............. 98
David Ngugi Mwaniki v Republic [2001] EKLR................................................424
Deepak Kamani v Kenya Anti-Corruption Commission (CA) [2010] eKLR........166
Deepakc Manlal Kamami and another v Kenya Anti- Corruption and 3 others,
civil application number 152 of 2009............................................................. 34
Derby & Co Ltd and others v Weldon and others [1990] 3 ALL ER 672..............179
Diamond Trust Bank (K) Ltd v Garex (K) Ltd & 2 Others,
Milimani HCCC No. 1474 of 2001 (unreported).........................................115
Dick Omondi Ndiewo T/A Ditech Engineering Service v Cell Care Electronics
[2015] eKLR................................................................................................196
Doyle v Kaufman [1877] 3 Q.B.D 7..................................................................... 21
Dr.Peter Malande Olindo and another v Diamond Trust Bank Kenya Ltd,
 Allen Gichuhi
xxiv Litigation-The Art of Strategy and Practice

High Court Civil Case No.1230 of 1999 (UR).............................................. 96

Dubai Aluminium Co Ltd v Al-Alawi [1999] 1 WLR 1964..................................177
Duncan Mwangi Kiora v Valley Bakery Limited and others [2011] eKLR.............. 21
Dunnet v Railtrack [2002] 2 All E.R 850............................................................320
Dunnett v Railtrack [2002]1 WLR 2434..............................................................166

E
East African Safari Air Limited v Anthony Ambaka Kegode and another
[2011] eKLR................................................................................................100
East African Safari Air Limited v Anthony Ambaka Kegode and another
[2006] eKLR................................................................................................100
Edward Mwaniki Gaturu and another v Attorney General and others
[2013] eKLR................................................................................................212
Eiden Enterprises Limited and 2 others v Paradise Mombasa Marketing Limited
and others [2010] EKLR................................................................................ 57
Elegant Colour Labs Nairobi Limited v Housing Finance Company (K) Limited
and others [2010] eKLR................................................................................ 18
Elijah arap Bii v Kenya Commercial Bank (ur) HCCC number 200 of 2000........136
Ellis Mechanical Services Ltd v Wates Construction Ltd (Note)
[1978] 1 Lloyd’s Rep 33................................................................................112
Emfil Limited v Attorney General and 424 others [2015] eKLR...........................137
Ephantus M. Kagomo and others v Industrial and Commercial Development
Corporation [2012] eKLR............................................................................. 67
Erick Kimingichi Wapang’ana and another v Equity Bank Limited and another
[2015] eKLR................................................................................................161
Erinford Properties Ltd.v Cheshire County Council 1974) 2 All ER 448.............152

F
Fenwish v East London Railway, (1875) L.R. 20 Eq. 544......................................141
First American Bank of Kenya Ltd v Shah [2002] 1 EA 64...................................370
First American Bank of Kenya v Shah and others [2002] 1 EA 64 (CCK).............364
Fitz Patrick v Batger and Company Ltd [1967] 2 All ER 657...............................161
Florence Ngosia Masieyi (suing for and on behalf of the estate of the late Fredrick
Masieyi Shitonda v George Gitau Mungai and 2 others [2015] eKLR............ 18
Floris Pierro and another v Giancarlo Falasconi (as the administrator of the estate of
Santuz za Billioti alias Mei Santuzza [2014] eKLR.......................................... 39
Floris Pierro and another v Giancarlo Falasconi [2014] eKLR..............................289
Francis v Francis and Dickerson [1956], pages 87, 95............................................380
Fredrick Mwangi Nyaga v Garam Investments & another..................................... 12
Fredrick Mwangi Nyaga v Garam Investments and another [2013] eKLR............... 4
Fredrick Mwangi Nyaga v Garam Investments and another [2013] eKLR............117
Fubeco China Fushun v Naiposha Company Limited and 11 others
[2014] eKLR.........................................................................................103,104
Allen Gichuhi
Table of Cases xxv

G
Gancio De Sa v Arin (1931) 1 EACA 13..............................................................194
Garthwaite v Sherwood [1976] 1 WLR 705.........................................................379
George Orango Orago v George Liewa Jagalo and 3 others [2010] eKLR............161
Giella v Cassman Brown and Company Limited [1973] E.A 358..........................122
Gilbert v Endean (1878) 9 Ch. D 259..................................................................121
Gilbert v Smith, (1976) 2 C.D. 686....................................................................... 46
Gilford Motor Co. v Horne (1933) Ch. 935.......................................................... 73
Giro Commercial Bank Ltd v Sam Nyamweya,
High Court civil case number 1391 of 2000..................................................... 3
Giro Commercial Bank v Director of Public Prosecutions and 3 others
[2014] eKLR................................................................................................427
Giro Commercial Bank v Director of Public Prosecutions and others
[2014] eKLR................................................................................................270
Githunguri v Republic [1986] KLR 1.................................................................429
Glencore Energy U.K Limited v Kenya Pipeline Co. Limited [2011] eKLR ........174
Govindji Popatlal v Narshidas M Bhudhdeo Miscellaneous Civil Case No. 1960..380
Grace Wairimu Mungai v Catherine Njambi Muya [2014] eKLR......................... 15
Grace Wangui Ngenye v Wilfred Kiboro & another [2013] eKLR........................368
Groia v The Law Society of Upper Canada 2015 ONSC 686...............................224
Gulam & Ano. v Jirongo (2003) LLR 2592 (CCK)...............................................115
Gulamhusein M. Jivanji and another v Ebrahim M. Jivanji and another 81............. 95

H
Halki Shipping Corpn v Sopex Oils Ltd [1998] 1 WLR 726................................112
Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ. 576...................320
Hashim Mohamed Kher and another v Gulf African Bank Limited [2015] eKLR......
226
Henry Ndungu Kinuthia v Barclays Bank of Kenya and another [2014] eKLR.....155
Herta Elizabeth Charlotte Naz ari v Herta Elizabeth Charlotte Nazari [1984] eKLR.
45,47
Hirji v Modessa [1967] E.A 724...........................................................................190
Holman v George Elliot and Co. Ltd [1944] 1KB 591........................................... 21
Holman v Johnson (1775) 1 Cowp 341................................................................350
Homi Dara Adrinwalla v Jeanne Hogan and another [1966] EA 290.....................375
Hon. Basil Criticos v The Hon. Attorney General and 8 others [2012] eKLR.......143
Hon. Lady Justice Nancy Makokha Baraza v the Judicial Service Commission and
others Constitutional Petition No. 23 of 2012...............................................254
Hunker Trading Company Limited v Elf Oil Kenya Limited [2010] eKLR............ 40
Hunker Trading Company Ltd v Elf Oil Kenya Ltd (CA) [2010] eKLR................167
Hunter Trading Company limited v ELF Oil Kenya Limited, Nairobi civil
application number 6 of 2010 (UR) (2010).................................................... 35
 Allen Gichuhi
xxvi Litigation-The Art of Strategy and Practice

I
In the matter of Maina Njenga and Company Advocates v National Bank of Kenya..
49
Inland Revenue v Scottish Central Company [1931] 15 TC 761..........................397
International Air Transport Association v Akarim Agencies Company Ltd [2014]
eKLR...........................................................................................................206
Investments and Mortgages Bank Limited (i & m) v Commissioner of Police and the
Director of Criminal Investigations Department and DPP; and 2 others [2013]
eKLR...........................................................................................................271
Isaac Ngugi v Nairobi Hospital and 3 others, Nairobi Petition No. 407 of 2012,213..
256

J
J Astaphan and Co. Ltd v Comptroller of Customs and another [1999] 2 LRC 569...
278
J. H. Jumani and another v Municipal Council of Mombasa [2008] eKLR............434
Jacob Zedekiah Ochino and another v George Aura Okombo CA 36 of 1989.....144
Jairo A. Okonda v Kenya Commercial Bank Milimani HCCC No. 3089 of 1996
(unreported)................................................................................................... 15
James Juma Muchemi and Partners Limited v Barclays Bank of Kenya Ltd [2011]
eKLR...........................................................................................................153
James Kariuki Nganga t/a Ndarugu Merchants v Joseph Ngae Njuguna & another
[2004] eKLR................................................................................................125
Jan Bolden Nielsen v Herman Philipus Steyn and 2 others [2013] eKLR.............. 95
Jane Wambui Ngeru v Timothy Mwangi Ngeru [2015] eKLR.............................218
JB Kohli & others v Bachulal Popatlal [1964] EA 219..........................................128
Joachimson v Swiss Bank Corpn [1921] 3 KB 110................................................ 83
Joachimson v Swiss Bank Corpn [1921] 3 KB 110................................................ 84
John Gitau Mungai v Stephen Kabebe and others [2014] EKLR............................. 2
John Maina Mburu T/A John Maina Mburu and Co. Advocates v George Gitau
Munene (Sued as Administrator of the Estate of Samuel Gitau Munene) and 3
others [2015] EKLR.....................................................................................351
John Muritu Kigwe and another v Agip (Kenya) Limited Milimani HCCC No.
2382/99.......................................................................................................145
John Njenga v Bata Shoe Company Limited, Nairobi High Court Civil Case No.
2332 of 1993................................................................................................. 70
John Ochanda v Telkom Kenya Ltd SC APP. No. 25 OF 2014............................... 55
Johnson v Grant, 1923 SC 789 at 790................................................................... 58
Johnson v Walton (1990) 1 FLR 350....................................................................138
Jones and another v Lipman and another [1962] 1 WLR 833................................ 69
Joreth Ltd v Kigano [EALR 2002] 93..................................................................362
Joreth Ltd v Kigano and Associates [2002] 1 EA 88..............................................358
Joseis Wanjiru v Kabui Ndegwa Kabui and another [2014] eKLR.........................292
Joseph Vitalis Odero Juma v Chief Justice of Kenya and 6 others [2010] eKLR.....293
Allen Gichuhi
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Judicial Service Commission v Gladys Boss Shollei and another [2014] eKLR......268
Judicial Service Commission v Speaker of the National Assembly and another,
Petition No. 518 of 2013...............................................................................257
Juja Coffee Exporters Limited and Others v Bank of Africa Limited and another
[2016] eKLR................................................................................................117
Julius Njoroge Muira v Harrison Kiambuthi Mburu [2011] eKLR........................ 18
Justus Wanjala Kisiangani and 2 others v City Council of Nairobi and 3 others
[2008] eKLR................................................................................................145

K
Kangethe & Co. Advocates v Kenya Pipeline Company Ltd [2001] eKLR............373
Karangi Coftea Ltd v Philomena Ndanga and another [2015] eKLR....................218
Kariuki and others v Minister for Gender, Sports, Culture and Social Services and
others [2004] I KLR 588..............................................................................144
Kariuki Network Limited & another v Daly & Figgis Advocates, Nairobi civil
application number 293 of 2009..................................................................... 34
Karuna s/o Kaniu v Reginam [1995] All ER.......................................................179
Kassim v Habre International Ltd [2001] 1 EA 98................................................370
Kasyoka v Republic [2003] KLR 406..................................................................268
Kasyoka v Republic [2003] KLR 406..................................................................401
Keeka v Damji [1968] EA 91...............................................................................357
Kengeles Holdings Ltd v Republic [2009] EKLR.................................................268
Kengeles Holdings Ltd v Republic, Criminal Revision No. 36 of 2008................273
Kengeles Holdings Ltd v Republic, Criminal Revision No. 36 of 2008................407
Kenindia Assurance Company Ltd v Patrick Muturi (Civl Appeal No. 87/93)
(Unreported)................................................................................................115
Kenya Breweries Ltd and 2 others v Washington Okeyo [2002] eKLR..................130
Kenya Commercial Bank Limited v Ann Kajuju Magondu and others
[2012] eKLR................................................................................................. 21
Kenya Commercial Bank Ltd v Kenya Planters Co-operative Union [2013] 1EA.. 19
Kenya Commercial Bank v Kenya Planters Co-operative Union Nairobi, civil
application number 85 of 2010 (UR)62 of 2010............................................ 35
Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi – Chairman,
Samuel Njuguna – Secretary, Joseph Kimiri – Treasurer) and others v Cabinet
Secretary for Transport and Infrastructure and 5 others [2014] eKLR.............. 31
Kenya Orient Insurance Limited v Oraro and Company Advocates [2014] eKLR.393
Kenya Ports Authority v E.A.P. and Lighting Company Ltd [1982] KLR 40............ 6
Kenya Power and Lighting Company v Chris Mahinda T/A Nyeri Trade Centre
[2005] 1KLR 753.........................................................................................283
Kenya Tea Growers Association v Francis Atwoli & 5 others,
Petition No. 64 of 2010................................................................................144
Kenya Wildlife Services v Associated Construction Co. Ltd
[2002] 2 EA 420 at 421.................................................................................362
Kenya Wildlife Services v Associated Construction Co. Ltd [2002] 2 EA 420........374
 Allen Gichuhi
xxviii Litigation-The Art of Strategy and Practice

Khader v Aziz [2010] EWCA Civ 716, [2010] 1 W.L.R. 2673..............................223

Kibwana Ali Karisa & another v Said Hamisi Mohamed and 3 others
[2015] eKLR................................................................................................215
Kihara v Barclays Bank of Kenya (2001) 2 EA 420 (CCK)....................................135
Kihonge Nganga and others v Kenya Commercial Finance Company Ltd,
C.A N. NAI 309 of 1997.............................................................................. 16
Kihuni v Gakunga and another [1986] KLR 572.................................................... 6
kima Masimba v Kishen Singh and Des Raj Sharma (1950) 24 (1) KLR at 39......354
Kimani Waweru and 28 others v Law Society of Kenya and 12 others
[2014] eKLR................................................................................................260
Kimatu Mbuvi T/A Kimatu Mbuvi and Bros v Augustine Munyao Kioko
[2007] 1 EA 139 (CAK)................................................................................194
Kimotho v Kenya Commercial Bank [2003] 1 EA 108.........................................191
Kipkorir, Titoo & Kiara Advocates v June Nduta Kinyua & another
[2012] eKLR................................................................................................386
Kipkorir, Titoo and Kiara Advocates v Postal Corporation of Kenya
[2005] eKLR................................................................................................362
Kiprotich v Gathua and others, [1976] K.L.R. 87..............................................46,47
Kisimani Holdings Limited and another v Fidelity Bank Limited [2013] eKLR....217
Kitangila Limited v Keziah Mumbi Paul and 5 others [2014] eKLR.....................157
Kiwanuka & Co v Walugembe [1969] 1 EA 660 (HCU)......................................129
Kobil Petroleum Limited v Almost Magic Merchants Limited,
High Court civil case number 1970 of 2000 (UR)........................................348
Kobil Petroleum Limited v Almost Magic Merchants Limited,
High Court Civil Case No. 1970 of 2000......................................................385
Konway v Limmer [1968] 1 All ER 874...............................................................180
Kuria & 3 others v Attorney General [2002] 2 KLR 69........................................426

L
Lamb and Sons Ltd. v Rider [1948] 2 All E.R. 402................................................ 92
Law Society of Kenya v Centre for Human Rights and Democracy and 12 others
[2014] EKLR...............................................................................................260
Lawi Duda and 21 others v Bamburi Cement Company Ltd [2015] eKLR..........227
Leland I. Salano v Intercontinental Hotel [2013] eKLR........................................171
Leonard Digler Employee Representative Council and others v. Leonard Digler
(Pty) Ltd and others (1997) 11 BLLR 1438 LC.............................................295
Litein Tea Factory Company Limited & another v Davis Kiplangat Mutai and 5
others [2015] eKLR......................................................................................119
Liverpool Borough Bank v Turner [1861] 30 L. J. Ch. 379....................................120
Locabaill International Finance Ltd. v Agroexport [1986] 1 All ER 901................132
Lochab Transport Ltd v Kenya Arab Orient Insurance Ltd [1986] eKLR..............182
London and Country Banking Co. v Lewis, (1882) 21 CH. D. 490.......................141
Love v Thwaites and another [2014] VSCA 56......................................................150
Allen Gichuhi
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M
M/s Behan and Okero v Pan African Insurance Company Kisumu High Court
Misc. Case No. 229 of 2003..........................................................................386
M’kiara v M’ikiandi [1984] KLR 170..................................................................322
Macfoy v United Africa Ltd [1961] 3 All ER........................................................143
Macfoy v United African Limited [1961] 3 All ER 1169....................................... 18
Machira and Company Advocates v Arthur Magugu and another
[2002] 2 EA 428 (CCK)...............................................................................381
Madara Evans Okanga Dondo v Housing Finance Company of Kenya
[2005] eKLR................................................................................................124
Magunga General Stores v Pepco Distributors Ltd [1988-1992] 2 KAR 89..........206
Makumbi and another v Sole Electrics (U) Ltd [1990-1994] EA 306....................388
Malakwen arap Maswai v Paul Kosgei Civil Appeal No. 230 of 2001..................... 91
Mary Wambui Kamau and 2 others v Richard Kirimi Kinoti [2015] eKLR..........159
Mat v Elcombe [1988] 3 All E.R. 188..................................................................141
Matex Hospital Supplies Limited v Kenya Ports Authority [2015] eKLR............... 63
Mauroux v Sociedade Comercial Abel Pereira da Fonseca SARL
[1972] 2 All ER 1085...................................................................................129
Mehuba Gelan Kelil and others v Abdulkadir Shariff Abdirhim and others
[2015] eKLR................................................................................................. 29
Meixner and another v Attorney General [2005] 2 KLR 189...............................270
MG Sharma v Uhuru Highway Development Ltd [2001] 2 EA 530.....................354
Michael Kyambati v Principal Magistrate, Milimani Commercial Courts,
Nairobi and another [2016] eKLR................................................................. 74
Michael N. Muigai Kenyatta and another v Barclays Bank of Kenya Ltd and others
(HCCC No. 385 of 2010 Milimani)..............................................................158
Midgulf International Limited v Groupe Chimique Tunisien
[2010] EWCA Civ 66, [2010].......................................................................223
Miller v Miller [1988] KLR 555..........................................................................322
Minister of Health and others v Treatment Action Campaign and others
[2002] 5 LRC 216........................................................................................254
Mitchel Cotts (K) Limited v Amboseli Estate Limited,
Nairobi HCCC No. 5426 of 1992...............................................................344
Mitchell and Hobbs (U.K.) Ltd v Mill [1966] 2 BCLC 102..................................101
Mohammad Abayomi Babatunde v Pan Atlantic Shipping and Transport Agencies
Ltd and others SC 154/2002.......................................................................... 55
Mohan Galot and another v Attorney General and 4 others [2014] eKLR............262
Morris and Co. Ltd v Kenya Commercial Bank [2003] 2 EA 605 (CCK)......134,135
Mradula Suresh Kantaria v Suresh Nanallal Kapnaria,
civil appeal number 277 of 2005.................................................................... 42
Muchangi Nduati and Co. Advocates v Francis P. Kiranga [2005] eKLR...............359
Mugah v Kunga [1988] KLR 748........................................................................220
Mugenyi and Company Advocates v the Attorney General [1999] 2 EA 199.....68,75
 Allen Gichuhi
xxx Litigation-The Art of Strategy and Practice

Mugo Njogu v Mary Githinji [2010] eKLR......................................................... 38

Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
[1969] EA 696............................................................................................... 29
Mukisa Biscuits Co v West End Distributors Ltd................................................... 24
Mumias Sugar Company Limited v Option two Limited and another
[2014] eKLR................................................................................................148
Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others
[2013] eKLR................................................................................................258
Municipal Council of Embu v Postal Corporation of Kenya [2014] eKLR............ 19
Murgor and Murgor v Central Bank of Kenya and another,
Nairobi HCCC No. 694 of 1998.................................................................360
Murgor and Murgor v Central Bank of Kenya and another Nairobi HCCC No. 694
of 1998..................................................................................................375,382
Murri v Murri and another 1 EA 212..................................................................205
Muthoga Gaturu and Company v Fidelity Commercial Bank Ltd Milimani HCCC
No. 570 of 2000............................................................................................385
Mutiso v Mutiso [1984] eKLR............................................................................118
Mutitika v Baharini Farm [1982-88] 1 KAR, 863................................................. 58
Mutonyi & another v Republic [1982] eKLR......................................................193
Mutuku and others v United Insurance Ltd [2002] 1 KLR 251............................... 3
Mwangi Wangondu v Nairobi City Commission CA 95/1988.............................144
Myers v Elman (1)[1939] 4 All ER................................................................128,129
Mylward v Weldon (1596) Tothill 102, 21 ER 136................................................223

N
Nairobi Golf Hotels (Kenya) Limited v Lalji Bhimji Sanghani Builders and
Contractors [1997] eKLR.............................................................................110
Nairobi Law Monthly and another v Kengen eKLR [2013].................................177
Nanyuki Esso Service v Touring and Sports Cars Ltd [1972] EA 500.............362,365
Nathan Cheasang Moson & 2 others v Community Uplift Ministries
[2013] eKLR................................................................................................... 5
National Bank of Kenya Limited v Anaj Warehousing Limited [2015] eKLR........283
National Bank of Kenya Limited v Peter Kipkoech Korat and another
[2005] eKLR................................................................................................. 28
National Bank of Kenya v Mahesh Manubhai Patel (Mombasa), miscellaneous civil
application number 583 of 2003....................................................................347
National Cereals and Produce Board v Dubai Bank of Kenya Ltd
[2005] 1 EA 331 (CCK).................................................................................. 3
National Industrial Credit Bank Limited v S.K Ndegwa,
Nairobi Civil Appeal No. 195 of 2004............................................................ 94
National Industrial Credit Ltd v Mindi Estates Ltd and others [2002] eKLR......... 87
National Outdoor Advertisement Contractors Association & 7 others v Uganda
National Roads, Kampala H.C. Misc. Application No. 3 of 2015; [2015]
UGHCCD 93................................................................................................. 8
Nazlin Umar Fazaldin Rajput v Attorney General and 3 others [2014] eKLR......257
Allen Gichuhi
Table of Cases xxxi

Ndarua v Republic [2002] 1 EA 205...................................................................274

Ndarua v Republic [2002] 1 EA 205...................................................................423
Ndolo v Ndolo [1995] LLR 390..........................................................................195
Ndyanabo v Attorney General [2001] 2 EA 485...................................................263
New Zealand Shipping v Societe Des Ateliers Et Chantiers De France
[1919] AC 1................................................................................................... 59
Newcomen v Coulson (1878) 7 CHD 764........................................................... 61
Ngomeni Swimmers Limited v Katana Chara Suleiman [2014] eKLR.................128
Nguruman Limited v Kenya Civil Aviation Authority and 3 others [2014] eKLR.371
Nguruman Limited v Shompole Group Ranch and another [2014] [ EKLR].......281
Nguruman Limited v Shompole Group Ranch and another [2014] EKLR........... 36
Niazons (K) Ltd v China Road & Bridge Corporation Kenya [2001] KLR 12.....372
Nicholas Kiptoo arap Korir Salat v IEBC and others,
SC APP. NOo. 16 OF 2014............................................................................ 56
Nikken Kosakusho Works v Pioneer Trading Co [2005] EWCA Civ 906.............165
Njogu & Company Advocates v National Bank of Kenya Limited
[2016] eKLR................................................................................................350
Njogu and Co. Advocates v National Bank of Kenya Ltd [2007] 1 EA 296...........348
Njuguna v Njau [1981] KLR 225......................................................................... 92
Noowa Company Limited v Athi Holdings Ltd and another,
Nairobi HCCC No. 4214 of 1991...............................................................344
Ntarangwi Ikiara v Commissioner of Lands and others [2014] eKLR.................... 57
Nuru Ibrahim Amrudin v Amir Mohamed Amir,
civil appeal number 23 of 1998 (UR)............................................................. 37
Nyutu Agrovet Limited v Airtel Networks Limited [2015] eKLR.........................105

O
O’Donnel v Reichand Supreme Court [1975] VR 916........................................191
Odhiambo Owiti and Company Advocates v National Housing Corporation
HCCC Misc. No. 109 of 2007......................................................................360
Ohaga v Adopt a Light Limited [2008] 1 EA 295.................................................352
Ohaga v Akiba Bank Limited [2008] 1 EA 300....................................................353
Okiya Omtatah Okoiti and others v Attorney General and others [2014] EKLR .175
Olivia da Ritta Siqueira E Facho and another v Siquiera, Rodrigues and Ribero
(1933) 15 KLR 34 at 36................................................................................. 44
Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation
Limited and 2 others [1998] eKLR, [1993] LLR 2525 (CAK)......... 139,142,143
Opa Pharmacy Ltd v Howse and McGeorge Ltd [1972] EA 233..........................376
Oraro v Mbaja [2005] 1 KLR 141........................................................................ 29
Orion East Africa Ltd v Ecobank Kenya Ltd and another [2015] EKLR...............146
Owino Okeyo and Company Advocates v Mike Maina and another
[2005]eKLR.................................................................................................353
 Allen Gichuhi
xxxii Litigation-The Art of Strategy and Practice

P
Parsi Anjumani v Mushin Abdulkarim Ali............................................................. 37
Patel and others vs Dhanji and others [1975] EACA 301......................................294
Patel v Singh and another [1956] EACA 209........................................................ 20
Patrick Mbau Karanja v Kenyatta University [2013] eKLR...................................264
Patrick Thinguri & 1,006 others v Kenya Tea Development Agency Co. and another
(unreported).................................................................................................120
Paul Imison v Attorney General & 3 others, Nbi HCMCA No. 1604 of 2003......429
Paul Partoire Ole Kaika v Orange Democratic Movement [2014] eKLR..............265
Pender v Lushington (1877) 6 Ch.D 70................................................................ 98
Pepco Construction Company Limited v Carter & Sons Limited, Nairobi civil
appeal number 80 of 1979 (UR).................................................................... 36
Peter K. Waweru v Republic [2006] eKLR...........................................................293
Peter M. Echaria v Priscilla N. Echaria [1998] eKLR............................................... 3
Peter O. Ngoge T/A O P Ngoge and Associates v Ammu Investment Company
Limited [2012] eKLR.................................................................................... 74
Pharmaceutical Manufacturing Co. v Novelty Manufacturing Ltd
[2001]2 EA 521............................................................................................. 48
Philip Kipchirchir Moi v Attorney General and another [2012] eKLR.................213
Power Technics Limited v the Hon. Attorney General and 2 others [2012] eKLR.275
Premchand and Raichand v Quarry Services (No. 3) 1972 EA 162...............355,364
Premchand and Raichand v Quarry Services 1972 ..............................................343
Presentaciones Musicales SA v Secunda and another [1994] 2 All ER 737............. 99
President of RSA and another v Modderklip Boerdery (Pty) Ltd and others
[2006] 2 LRC 38..........................................................................................276
Pritchard v Westminster Bank Ltd [1969] 1 All ER 999, [1969] 1 WLR 547.......... 84
Pritchett v English and Colonial Syndicate [1899] 2 QB 428 at 433...................... 82
Puruse Pty Limited v Council of The City of Sydney [2007] Nswlec 163.............. 43
Pyramid Motors Limited v Langata Gardens Limited [2015] eKLR......................383

Q
Queen v Department of the Environment and another ex parte Belize Alliance of
Conservation Non-Governmental Organizations (BACANGO)....................... 9

R
R & T Thew Ltd v Reeves (No 2) [1982] 3 All ER 1086 at 1089.........................129
R v Attorney General ex p Kipngeno Arap Ngeny, High Court Civil Application
No. 406 of 2001............................................................................................427
R v Attorney General ex p Kipngeno Arap Ngeny, High Court Civil Application
No. 406 of 2001............................................................................................428
R v Attorney General ex parte Kipngeno Arap Ngeny, High Court Civil Application
No. 406 of 2001.......................................................................................... 430
Allen Gichuhi
Table of Cases xxxiii

R v Chief Magistrates Court Mombasa Ex- Parte Ganijee & another [2002] 2 KLR
703...............................................................................................................408
R v DPP and others Ex parte Qian Guo Jun & another [2013] eKLR.................429
R v Gilbert Okoth [1999] eKLR.........................................................................425
R v Gombos [1965] 1 All ER 229........................................................................ 53
R. v The Judicial Commission into the Goldenberg Affair and 2 Others ex parte
Saitoti HC Misc Appl. 102 of 2006........................................................427,431
Rainbow v Moorgate Properties Ltd [1975] 2 All ER 821, [1975] 1 WLR 788...... 84
Rajani v Thaithi.................................................................................................... 15
Ranjanbala daughter of Nathalal Sachdev v Jayantilal Bhagwanji Madvani and 2
others Civil Case No. 142 of 1961................................................................377
Rastin v British Steel [1994] 1 WLR 732.............................................................165
Rastin v British Steel [1994] 1 WLR 732.............................................................210
Re Atlantic Pipe Corp.........................................................................................316
Re Ratanshaw Bejonji Sutaria’s Application [1960] EA 656, 658..........................379
Re the Matter of the National Lands Commission Under Article 163(6) of The
Constitution of Kenya...................................................................................292
Re the Matter of the National Lands Commission Under Article 163(6) of The
Constitution of Kenya...................................................................................292
Re Tuck Murch v Loose More (1906) Ch. 692....................................................144
Republic v Chief Land Registrar and 9 others ex-parte James Njoroge Njuguna
[2016] eKLR................................................................................................... 8
Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee and another
[2002] 2 KLR 703........................................................................................271
Republic v Commissioner of Lands and 2 others ex-parte Jimmy Mutinda Nairobi
H.C. JR ELC No.9 of 2012............................................................................. 8
Republic v Deputy Commissioner for Labour and 2 others Ex-Parte Kevin Ashley
and 2 others [2016] eKLR............................................................................426
Republic v Director of Public Prosecutions and 2 others ex-parte Praxidis Namoni
Saisi [2016] eKLR........................................................................................428
Republic v Director of Public Prosecutions and another ex parte Job Kigen
Kangogo [2016] eKLR.................................................................................426
Republic v Fairview Hotel [2011] eKLR.............................................................269
Republic v Kabue Kigera [1986] eKLR...............................................................432
Republic v Kabue Kigera
[Nairobi HC CR Application No. 48 of 1986] (UR)....................................434
Republic v Minister for Agriculture and 2 others ex-parte Samuel Muchiri
W’Njuguna and 6 others [2006] eKLR.........................................................367
Republic v Minister for Agriculture and 2 others ex-parte Samuel Muchiri
W’Njuguna and 6 others..............................................................................388
Republic v Nairobi City Council and 2 others Ex-Parte Barclays Bank of Kenya
Limited [2011] eKLR...................................................................................272
Republic v Permanent Secretary, Ministry of Planning & National Development ex-
parte Mwangi S. Kimenyi [2006] eKLR........................................................... 8
 Allen Gichuhi
xxxiv Litigation-The Art of Strategy and Practice

Republic v Principal Registrar of Government Lands and others Ex-Parte John

Ngugi Gathumbi [2014] eKLR.....................................................................146
Republic v The Public Procurement Complaints, Review and Appeals Board and
another Ex Parte Jacorossi Impresse Spa Mombasa HCMA No. 365 of 2006... 31
Resley v Nairobi City Council [2002] 1 EA 241..................................................... 8
Robert Mwangi v Shepherd Catering Ltd and another [2012] eKLR...................213
Robert Tchenguiz & others v Vivian Imerman.....................................................176
Rockland Kenya Limited v Elliot White Miller [1994] EKLR..............................122
Rockland Kenya Ltd v Miller [1994] KLR 63......................................................149
Rookes v Bernard [1964] AC 1129......................................................................296
Rose Wangui Mambo and others v Limuru Country Club and 17 others
[2014] eKLR................................................................................................294
Roseline Awino Okwach & another v Pan Africa Insurance Company and others
[2016] eKLR................................................................................................. 76
Routestone Ltd. v Minories Finance Ltd. and another..........................................198
Royal Bank of Canada v Boussoulas, 2010 ONSC 4650 (CanLII)........................127
Russell Co. Ltd v Commercial Bank of Africa Ltd and another [1985] EKLR......153
Ryan Investments Ltd and another v the United States of America
[1970] EA 675............................................................................................... 31

S
Safaricom Limited v Ocean View Beach Hotel Limited and others [2010] eKLR......
32,372
Safaricom Limited v Ocean View Beach Hotel Limited and others [2010] eKLR.106
Salomon v A. Salomon & Company Ltd [1897] AC 22......................................68,69
Samuel Githitu and another v Duncan Kariuki Civil Appeal No. 157 of 1998......372
Samura Engineering Limited and 10 others v Kenya Revenue Authority [2012]
eKLR...........................................................................................................296
Sarah Chelagat Samoei v Musa Kipkering Kosgei and another [2016] eKLR........371
Senator Johnstone Muthama v Tanathi Water Services Board and 2 others [2014]
eKLR...........................................................................................................321
Shah and another v Shah and others [2003] 1 EA 290..........................................193
Shah v Resident Magistrate Nairobi and another [2000] 1 EA 208 (CAK)...........423
Sharma v Uhuru Highway Development Ltd [2001] 2 EA 530 (CAK).................396
Shell (U) Limited and others v Muwema, Mugerwa Advocates and Solicitors and
another [2014] 3 E.A 346.............................................................................345
Shepherd Homes Ltd v Sandahm [1971] 1 Ch. 34.........................................132,133
Smith v Buller [1875] LR 18 Eq 473, 475............................................................378
Société Eram Shipping Co Ltd and others v Compagnie Internationale de
Navigation [2003] 3 All ER 465.................................................................... 81
Solomon Omwega Omache & another v Zachary O Ayieko & 2 others [2016]
eKLR...........................................................................................................118
Sound Equipment Limited v Registrar of Titles and Commissioner of Lands........275
Southern Credit Bank v Kingsway Motors Ltd [2008] 1 EA 419..........................361
Allen Gichuhi
Table of Cases xxxv

Speaker of the Senate and another v Attorney-General and 4 others

[2013] EKLR...............................................................................................323
Ssemwogerere and others v Attorney General (3) [2004] 2 EA 247.......................214
Standard Bank PLC v Via Mat International Ltd [2013] EWCA Civ 490..............222
Standard Chartered Bank Kenya Limited v Intercom Services Limited & 4 others,
civil appeal number 37 of 2003 [2004] 2 KLR 183.....................................68,75
Standard Chartered Bank v Mechanical Engineering Plant Ltd and Others [2009]
EA 404.........................................................................................................283
Steel Construction Petroleum Engineering (EA) Limited v Uganda Sugar Factory
[1970] EA 141..............................................................................................365
Stephen Boro Githua v Family Finance Building Society & 3 others [2015] eKLR...
115
Stephen Kinini Wang’ondu v the Ark Limited [2016] eKLR................................196
Stephen Kipkebut t/a Riverside Lodge and Rooms v Naftali Ogola [2009] eKLR....
131
Stephen Onyango Achola and another v Edward Hongo Sule and another [2004]
eKLR............................................................................................................ 26
Stockman Rozen Kenya Ltd v Da Gama Rose Group Ltd [2002] 1 KLR 572;........ 3
Sucham Investments Ltd T/A Tiwi Beach Resort v Trident Insurance Company
Limited and another [2015] eKLR................................................................383
Sushilaben Ramniklal Shah v Vegetable Bargain Centre Ltd t/a Green House
Restaurant [2006] EKLR............................................................................... 57

T
Tatu Naiga & Emporium v Virjee Brothers Ltd, Civil Appeal number 8 of 2000...104
Technistudy v Kelland [1976] 1 WLR 1042.......................................................... 46
Teitinnang v Ariong [1987] LRC (Const.) 517.....................................................265
Telkom Kenya Limited v John Ochanda (Suing on his own Behalf and on Behalf of
996 Former Employees of Telkom Kenya Limited [2014] eKLR..................... 40
Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf
of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR...............289
Tera Waigwa Waihenya and another v Co-operative Bank of Kenya Limited [2005]
EKLR..........................................................................................................358
Thakur Persad Jaroo v Attorney General [2002] 5 LRC 258.................................278
The Centre for Human Rights and Democracy and others v The Judges and
Magistrates Vetting Board & others, Eldoret Petition No.11 of 2012..............257
The Matter of the Estate of George M’mboroki Meru HCSC No. 357................. 32
Theluji Dry Cleaners Ltd v Muchiri and others [2002] 2 KLR 764....................... 56
Thomas James Arthur v Nyeri Electricity Undertaking [1961] EA 492.................356
Three Rivers District Council v Bank of England [2001] 2 All ER 513................166
Throrpt v Holdsworth, (1976) 3 C.D 637............................................................. 48
Thugi River Estate Limited and another v National Bank of Kenya Limited and
others [2015] eKLR......................................................................................220
Timothy John Victor v Republic [2016] eKLR....................................................425
Tirop v Attorney General [2002] 2 KLR 165................................................274,424
 Allen Gichuhi
xxxvi Litigation-The Art of Strategy and Practice

Tombstone Limited v Raja [2008] EWCA Civ 1444............................................223

Trusted Society of Human Rights Alliance v Mumo Matemo and 5 others
[2014] EKLR...............................................................................................267

U
UAP Provincial Insurance Company Ltd v Michael John Beckett Civil Appeal No.
26 of 2007....................................................................................................110
Udaykumar C. Rajani and others v Charles Thaithi Nairobi Civil Appeal No. 85 of
1996 (unreported).......................................................................................... 14
Uganda v Commissioner of Prisons [1966] EA 514..............................................423
Uganda v Keneri Opidi [1965] E.A 614...............................................................274
Uganda v Keneri Opidi [1965] E.A 614...............................................................412
Uhuru Highway Development Limited v Central Bank of Kenya and others
Milimani HCCC No. 29 of 1995...............................................................95,96
Ultimate Laboratories v Tasha Bioservice Ltd Civil Case No. 1287 of 2000........... 73
Uncle Sam’s Githurai Ltd and another v Samuel Mureithi Muriuki and others...... 16
United Assurance Co. Ltd v Attorney General, SCCA No. 1 of 1998.............103,104

V
Valentine v Milton Keynes General NHS Trust [2003] EWCA Civ. 1274.............320
Vander Donckt v Tuelluson (1849) 8 C.B. 12........................................................195
Vania Investments Pool Limited v Capital Markets Authority and others [2014]
eKLR...........................................................................................................266
VdayKumar Chanulal Rajini and others v Charles Thaiti civil appeal number 85 of
1996.............................................................................................................. 19
Victor Mabachi and another v Nurturn Bates Ltd, civil appeal number 247 of 2005
[2013] eKLR................................................................................................. 72

W
Walker v Walker 23 QBD 335..............................................................................182
Wanga and Co. Advocates v Busia Sugar Company Limited [2004] 1 KLR 506....357
Williams v Spautz [1992] 66 NSWLR 585...........................................................431
Wilson Tanui Barno and 2 others v Jeniffer Kositany [2015] eKLR......................157
Woolwich Equitable Building Society v Inland Revenue Commissioners [1992] 3
WLR 366.....................................................................................................279

Z
Zakaria Somi Nganga v Kenya Commercial Bank Limited & 3 others [2008] eKLR.
18
 Table of Statutes
Acts
A
Advocates Act
s 9 .........................................................................................................282,284
s 27 ................................................................................................................282
s 60(4)............................................................................................................282
s 34(1)(a)........................................................................................................284
s 2 ................................................................................................................284
s 10 ................................................................................................................284
s 13 ................................................................................................................285
s 44 .................................................................................................. 286,343,382
s 34(1).....................................................................................................286,287
s 45 ................................................................................................................344
s 50(1)............................................................................................................345
s 46 .........................................................................................................346,350
s 36(2)............................................................................................................349
s 51(2).....................................................................................................386,393
s 48 .................................................................................................. 389,392,396
s 49 ................................................................................................................396
s 52 ................................................................................................................390

Advocates Remuneration Order

r 10 ................................................................................................................354
r 13A.......................................................................................................354,395
r 16 ................................................................................................................355
r 49 ................................................................................................................356
r 49A..............................................................................................................356
r 17 ................................................................................................................377
r 74A..............................................................................................................377
r 11(1)............................................................................................................381
r 53 ................................................................................................................382
r 57 ................................................................................................................384
r 58 ................................................................................................................384
r 11 .........................................................................................................384,385
r 12 .........................................................................................................388,395
r 13(3)............................................................................................................396
Appellate Jurisdiction Act
s 3A ................................................................................................................242
s 3B ................................................................................................................242
s 3(1)..............................................................................................................281
 Allen Gichuhi
xxxviii Litigation-The Art of Strategy and Practice

Arbitration Act
s 35(3)............................................................................................................104
s 37 ................................................................................................................104
s 10 ................................................................................................................105
s 35 ................................................................................................................105
s 17 .........................................................................................................106,372
s 6(1)(b)............................................................................................ 107,108,111
s 6(1)(b)...................................................................................................112,114
s 6(2).......................................................................................................372,373
s 10 ................................................................................................................374
s 17(6)............................................................................................................374
Auctioneers Rules, 1997
r 6 ................................................................................................................. 93
r 12 ................................................................................................................. 93
r 16 ................................................................................................................. 93
r 18 ................................................................................................................. 93
C
Civil Procedure Act1
s 3 ................................................................................................................... 4
s 3A ................................................................................................................... 4
s 100.................................................................................................................. 4
s 3A ......................................................................................31,44,60,73,134,140
s 34 ................................................................................................................. 76
s 38 ................................................................................................................. 76
s 1A ................................................................................................................. 76
s 1B ................................................................................................................. 76
s 2 ...................................................................................................... 4,325,359
s 100.................................................................................................................. 5
s 1A ................................................................................................................. 19
s 2A ................................................................................................................. 19
s 1A(3)............................................................................................................. 41
s 95 ................................................................................................................. 20
s 3A ................................................................................................................. 37
s 3B .............................................................................................................37,39
s 80 ................................................................................................................. 96
s 44(1)............................................................................................................126
s 95 ................................................................................................................137
s 1A ................................................................................................................162
s 1B ................................................................................................................162
,s 3A ..............................................................................................................162
s 63(e)......................................................................................................162.167
s 22 ................................................................................................................189
Allen Gichuhi
Table of Statutes xxxix

s 59 D.............................................................................................................234
s 59A..............................................................................................................328
s 59B..............................................................................................................328
s 81 (2FF)................................................................................................328,329
s 18(1)(b)........................................................................................................371
Civil Procedure Rules, 2010
Order 2, r 4..................................................................................................... 24
Order 2, r 5..................................................................................................... 25
Order 2, r 6..................................................................................................... 25
Order 2, r 10.................................................................................................... 25
Order 8............................................................................................................. 1
Order 8, r 1....................................................................................................... 1
Order 1,r 9........................................................................................................ 1
r 10 ................................................................................................................... 1
Order 24, r 3...................................................................................................... 1
r 4 ................................................................................................................... 1
r 5 ................................................................................................................... 1
r 6 ................................................................................................................ 1,5
Order 8, r 7(1)................................................................................................... 2
Order 8, r 5(i).................................................................................................... 4
r 7 ................................................................................................................... 4
r 8 ................................................................................................................... 4
Order 8, r 5....................................................................................................... 5
Order 53, r 1...................................................................................................... 7
Order 53 r 4................................................................................................... 7,9
Rule 6............................................................................................................... 9
Rule 6(2)......................................................................................................... 10
Order 8A r 1................................................................................................... 11
Order 8, r 2.................................................................................................11,12
Order 5, r 2.................................................................................................13,22
Order 5, r 5..................................................................................................... 20
Order 5, r (1) (6)................................................................................ 13,14,16,17
Order 5, r 1(1)................................................................................................. 19
Order 5, r 17(3)............................................................................................... 22
Order 50, r 6................................................................................................20,21
Order 49, r 5.................................................................................................... 20
Order XLI, rule 4(1) and Order L, rule 1......................................................... 28
Order 13, r 1.................................................................................................... 44
Order 13, r 2.................................................................................................... 44
Order XII, r 6.................................................................................................. 46
Order 6, r 9(3)................................................................................................. 47
O.VI r 9(4)...................................................................................................... 48
 Allen Gichuhi
xl Litigation-The Art of Strategy and Practice

Order X, rule 7................................................................................................ 48

r 8 ................................................................................................................. 48
Order 25, r 1.................................................................................................... 58
Order 40, r 3.................................................................................................... 59
Order 40, r 3(3)............................................................................................... 59
Order 25, r 4................................................................................................60,64
Order 10, r 4 (1).............................................................................................. 64
Order 11, r 3(1)..............................................................................................160
Order 25, r 3.................................................................................................... 61
Order 25, r 5.................................................................................................... 62
Order 10, r 4.................................................................................................... 62
Order 10, r 5.................................................................................................... 62
Order 10, r 6.................................................................................................... 63
Order 10, r 7.................................................................................................... 63
Order 9A, r 3...............................................................................................65,66
Order 9A, r 5................................................................................................... 65
Order 22, r 35...........................................................................70,72,74,76,77,80
Order 22, r 35(b)............................................................................................. 70
Order 23, r 1.................................................................................................... 80
Order 23, r 2.................................................................................................... 80
Order 23, r 3.................................................................................................... 81
Order 23, r 4.................................................................................................... 81
Order 21, r 74.................................................................................................. 93
Order 45, r 1................................................................................................94,96
Order 21......................................................................................................... 96
Order 4, r 1....................................................................................................104
Order 18, r 4...................................................................................................115
Order 18, r 7...................................................................................................120
Order 3, r 2....................................................................................................116
Order 40, r 1...................................................................................................121
Order 21, r 53(1)............................................................................................126
Order 39, r 2...................................................................................................135
Order 39, r 1...................................................................................................135
Order 40, r 4(3).......................................................................................136,138
Order 40, r 3(3).......................................................................................136,156
Order 50, r 8...................................................................................................137
Order 50, r 6............................................................................................138,160
Order XXXIX, r 3(1).....................................................................................141
Order 39 r 3(2)...............................................................................................143
Order 42, r 6(2)..............................................................................................154
Order 40, r 6........................................................................ 155,156,158,159,162
Order 40, r 7...................................................................................................157
Allen Gichuhi
Table of Statutes xli

Order 54, r 2............................................................................................158,159

Order 43........................................................................................................162
Order 3, r 2.............................................................................................168,182
Order 7, r 5....................................................................................................168
Order 2, r 2....................................................................................................169
Order 2, r 3....................................................................................................169
Order 11, r 3(2)(o)(iii).....................................................................................182
Order 16, r 1...................................................................................................189
Order 51, r 16..........................................................................................199,202
Order 11, r 3...................................................................................................232
Order 42, r 13.................................................................................................234
Order 53........................................................................................................290
Order 50, r 6...................................................................................................290
Order 46, r 20.................................................................................................325
Order L, r 15(2)..............................................................................................381
Order 3, r 2(d)................................................................................................382
Order 49, r 7(2)..............................................................................................391
City Council’s Foods, Drugs and Chemical Substances (General) Regulations
s 14 (e)...........................................................................................................400
s 36 ................................................................................................................401
Companies Act
s 31 ................................................................................................................. 71
s 107................................................................................................................ 71
s 130................................................................................................................ 71
Constitution of Kenya, 2010
Article 159(2)(d)...............................15,17,20,21,40,97,110,161,282,283,288,323
Article 159................................................................................35,39,76,115,281
Article 159(2)(c)............................................................................... 227,228,324
Articles 164(3)................................................................................................. 36
Article 27........................................................................................................ 76
Article 50(4)............................................................................................172,179
Article 35.......................................................................................................177
Article 22.......................................................................................................177
Article 162.....................................................................................................212
Article 162(2)..........................................................................................214,217
Article 162(3).................................................................................................214
Article 165(2)(d).............................................................................................213
Article 169.....................................................................................................213
Article 165(5).................................................................................................213
Article 169(1).................................................................................................214
Article 165(3).................................................................................................218
Article 161(2)(a)......................................................................................229,230
 Allen Gichuhi
xlii Litigation-The Art of Strategy and Practice

Article 161(2)(a).............................................................................................235
Article 165 (6)................................................................................................235
Article 23(3)...................................................................................................254
Article 22................................................................................................254,255
Article 20.......................................................................................................255
Article 24.......................................................................................................256
Article 260.....................................................................................................256
Article 22(3)...................................................................................................257
Article 23.......................................................................................................257
Article 165(3)(b).............................................................................................257
Article 165.....................................................................................................261
Article 144.....................................................................................................261
Article 165(4).................................................................................................262
Article 27(1)...................................................................................................264
Article 47.......................................................................................................264
Article 50................................................................................................267,272
Article 40.......................................................................................................275
Article 159..............................................................................................280,289
Article 163(4)(b).............................................................................................289
Article 159(c)..................................................................................................291
Article 27......................................................................................... 292,293,295
Article 23................................................................................................293,358
Article 50(8)...................................................................................................321
Article 50(1)............................................................................................322,323
Article 10(2)(c)...............................................................................................323
Article 162(2).................................................................................................357
Article 50.......................................................................................................400
Article 50(2)(n)...............................................................................................426
Court of Appeal Rules
r 42(1)............................................................................................................ 3,4
r 44 ................................................................................................................... 6
r 16 ................................................................................................................. 11
r 16(1)............................................................................................................... 6
r 16(3)............................................................................................................. 11
r 5(2)(b).......................................................................................................36,40
r 57(2)............................................................................................................. 36
r 85(1)............................................................................................................. 36
r 88 ................................................................................................................. 97
r 87(1) and (2)................................................................................................. 97
r 5(2)(b)..........................................................................................................154
r 5(2)(b)..........................................................................................................281
Allen Gichuhi
Table of Statutes xliii

Criminal Procedure Act

s 99 ................................................................................................................413
s 99(3)............................................................................................................414
Criminal Procedure Code
s 89 ................................................................................................................425

E
Environment and Land Court Act
s 24 ................................................................................................................213
s 24(2)............................................................................................................214
s 13(1).....................................................................................................214,216
s 13(4)............................................................................................................214
s 30 (1),(2)......................................................................................................229
s 3 ................................................................................................................229
s 13(2)............................................................................................................234

Evidence Act
s 5 ................................................................................................................173
s 23 ................................................................................................................173
s 139...............................................................................................................173
s 83 ................................................................................................................178
s 35 .........................................................................................................178,185
s 3 ................................................................................................................190
s 112...............................................................................................................190
s 48 .........................................................................................................192,193
s 108...............................................................................................................205
s 112...............................................................................................................205

F
Food, Drugs and Chemical Substances Act
s 30(7).....................................................................................................402,403
s 4 ................................................................................................................403
s 36(1).............................................................................................. 403,404,406
s 6 ................................................................................................................404
s 30(7)............................................................................................................407
s 118........................................................................................................409,411

I
Interpretation and General Provisions Act
s 72 ................................................................................................................120
s 57 ................................................................................................................136
s 66 ................................................................................................................400
 Allen Gichuhi
xliv Litigation-The Art of Strategy and Practice

J
Judicature Act
s 5(1)..............................................................................................................143
s 10 ................................................................................................................235
Judicial Service Act
s 2(c)..............................................................................................................213

L
Land Act
s 117...............................................................................................................151
Law Reform Act
s 8 ................................................................................................................423
s 9 ................................................................................................................423
Limitation of Actions Act
s 26 ................................................................................................................ 27
s 4 ................................................................................................................. 90
s 4(4)...........................................................................................................91,92
s 4(1)..........................................................................................389,390,393,394
Local Government Act
s 86A..............................................................................................................354

M
Matrimonial Property Act of 2013
s 17 ................................................................................................................218

O
Oaths and Statutory Declarations Act
s 6 ................................................................................................................119
Oaths and Statutory Declarations Rules
r 9 ................................................................................................................119
r 10 ................................................................................................................119

P
Penal Code
s 327................................................................................................................ 78
s 328................................................................................................................ 78
s 357(a)...........................................................................................................111
s 313...............................................................................................................111
s 108...............................................................................................................123
s 110...............................................................................................................124

Public Health Act

Allen Gichuhi
Table of Statutes xlv

s 119...............................................................................................................275
s 120................................................................................................. 275,424,433
Public Officers Ethics Act, 2003.
s 11(2)(c)........................................................................................................176
s 24 ................................................................................................................176
Public Procurement and Disposal Act
s 93 ................................................................................................................387

R
Repealed Constitution
s 77 ................................................................................................................408
s 77(2)(b)........................................................................................................406
s 77(4)............................................................................................................406
s77(8).............................................................................................................406
Registered Land Act
s 72(1)............................................................................................................140

T
Traffic Act, Cap. 403
s 58(1)............................................................................................................412
s 55(2)............................................................................................................412
s 117...............................................................................................................413
s 70(1A)..........................................................................................................414
s 42(4)............................................................................................................415
s 70(5A)(a)......................................................................................................419
s 70(5B)(1A)............................................................................................420,422
s 42 .........................................................................................................420.421

V
Value Added Tax Act, 2013
s 5(4)..............................................................................................................383
 Chapter 1

Pleadings Without Tears- Tips in Civil Litigation

1.1 Introduction
The Civil Procedure Act, Chapter 21 of the Laws of Kenya and the Civil Procedure
Rules, 2010 are the cornerstone of an advocate’s civil litigation practice. Simplicity
and accuracy in drafting of pleadings is achieved by understanding the precise section
or rule under which the application is brought. In addition, one must always be astute
by researching on the latest case law. A useful tip is to always craft the prayers in the
application in consonance with the wordings or spirit of the particular section or rule
of the legislation.
It is dangerous to simply copy and paste a precedent acquired from a colleague
as one may end up with either repeating a drafting mistake or applying the wrong
precedent.
I first presented a paper in 2006 called “Pleadings Without Tears’’ at a Law Society
of Kenya Continuous Legal Education training in Nakuru. At the time, the paper was
only 19 pages but advocates still fondly remembered it over more than 7 years later.
I have now redone the original paper and introduced various topical legal issues of
interest that bedevil the legal profession in practice.
In this chapter I have highlighted various problematic areas that I have encountered
on a frequent basis in practice. It is my sincere hope that this chapter will assist students
of law and advocates in practice as a quick guide towards eradication of some of the
common legal minefields encountered in every day practice. I extend my gratitude to
all my professional colleagues who have over the years consulted me on various topical
issues and in the process inspired me to address their queries in this book.
I have selected, at random, common areas where mistakes or oversights are
encountered in practice. Useful tips are shown to give guidance to avoid common
mistakes and omissions when drafting pleadings.

1.2 Amendment of Pleadings

Order 8 of the Civil Procedure Rules is concerned with the amendment of pleadings.
Pleadings may be amended as follows:
(a) A party may, without the leave of the court, amend any of his pleadings once at
any time before the pleadings are closed- Order 8, rule 1.
(b) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following
provisions of this rule, the court may at any stage of the proceedings, on such
terms as to costs or otherwise as may be just and in such manner as it may direct,
allow any party to amend his pleadings-Order 8, rule 1.
 Allen Gichuhi

2 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1.2.1 Indicate how the Amendment was Made

Many advocates will amend a pleading, whether a plaint, defence, petition or
originating summons or motion as follows:

“Amended Plaint’’
The problem with such an amendment is that it does not indicate if the amendment
was done with or without leave of the court.
In the case of John Gitau Mungai v Stephen Kabebe and others1 the court set out
the following general principles dealing with amendments of pleadings and how the
amendments should be set out.

Facts
The plaintiff made a formal application seeking leave to re-amend the amended Plaint
after he discovered that other fraudulent, illegal and unlawful actions were committed
by the defendants including the issuance of a consent by the in Lamu District Land
Control Board, a party that he sought to enjoin.
The application was opposed on the grounds that the intended amendments were
meant to delay the hearing of the main suit, the intended amendments were irregular
having been based on a Reply to Defence filed out of time and without the leave
of Court and that the Amended Plaint dated 18 July 2012 was filed out of time and
without the leave of the court. Justice O. A. Angote allowed the application and
“The defendants finally averred in their Notice of Preliminary Objection that the intended
Re-Amended Plaint annexed on the Notice of Motion cannot be granted because it is
premised on an Amended Plaint which was irregularly filed.
“Counsel relied on the case of Central Kenya Limited v Trust Bank Limited [2002] 2 EA 365
where the Court of Appeal held as follows:
“Amendments of pleadings and joinder of parties was aimed at allowing a litigant to
plead the whole of the claim he was entitled to make in respect of his cause of action.
A party would be allowed to make such amendments of pleadings as were necessary for
determining the real issue in controversy or avoid a multiplicity of suits provided (i) there
has been no undue delay (ii) no new or inconsistent cause of action was introduced (iii)
no vested interest or accrued legal right was affected (iv) the amendment could be allowed
without injustice to the other side.
Accordingly, all amendments should be freely allowed as at any stage of the proceedings,
provided that the amendment or joinder did not result in prejudice or injustice to the
other party that could not be properly compensated in costs. Neither the length of the
proposed amendments nor where delay was sufficient grounds for declining leave to
amend. The overriding considerations were whether the amendments were necessary for
the determination of the suit and whether the delay was likely to prejudice the opposing
party beyond compensation for costs.
After a pleading is amended, one common omission is the failure to comply with Order 8, rule 7(1)
of the Civil Procedure Rules. Order 8, rule 7 (1) provides as follows:

1 [2014] EKLR
Allen Gichuhi

Pleadings Without Tears- Tips in Civil Litigation 3

“Every pleading and other document amended under this Order shall be endorsed with the date of the
amendment and either the date of the order allowing the amendment or, if no order has been made, the
number of the rule in pursuance of which the amendment is made.” [Emphasis Mine].

1.2.2 Is Failure to Show the Endorsement as Regards the Amendment

Fatal?
In the case of National Cereals and Produce Board v Dubai Bank of Kenya Ltd2an issue
arose as to whether an amended plaint must contain an endorsement of the rule or
order under which the amendment was made and whether failure to contain such
an endorsement was a fatal defect. In a string of rulings, the High Court had held
that such failure would constitute a fatal defect. The applicant sought to amend his
amended plaint after discovering that it had omitted the required endorsement. The
court held:
1. Under the Civil Procedure Rules, an amended pleading shall be endorsed
with the date of the amendment and either the date of the order allowing the
amendment or if no order has been made the number of the rule in pursuance of
which the amendment was made.
2. Such failure has previously been held, upon applications to strike out, to be fatal
to the amended plaint. Mutuku and others v United Insurance Ltd [2002] 1 KLR
251; Stockman Rozen Kenya Ltd v Da Gama Rose Group Ltd [2002] 1 KLR 572;
Giro Commercial Bank Ltd v Sam Nyamweya High Court civil case number 1391
of 2000 considered, distinguished and disapproved.
3. However, in this case the applicant was filing an application to amend his plaint.
Once an irregularity is discovered in an application, the proper procedure is for
the offending party to seize the opportunity to apply for amendment.

1.2.3 Can a Party Amend a Notice of Motion?

There are instances when a party decides that owing to a new set of circumstances, the
original Notice of Motion ought to be amended. In such instances, many advocates
either apply to amend the application or simply, without consideration as to whether
leave of the court is required, simply file an Amended Notice of Motion.

1.2.4 The Court of Appeal may allow an Amendment that Cures the Defect
in an Application
Going back in time is the Court of Appeal decision of Peter M. Echaria v Priscilla N.
Echaria3where the Court considered whether an application was incurably defective
by reason of failure to state the grounds of the application. The court noted that rule
42(1) of the Court of Appeal Rules provides that “all applications to the Court shall
be by motion which shall state the grounds of the application”. In a short and succinct
Ruling the Court of Appeal allowed granted leave to amend the Notice of Motion
and held as follows:
“The respondent has applied that this appeal be struck out as incompetent. Dr. Kamau for
the appellant objected to the notice of motion as being incurably defective for failing to
comply with rule 42(1) of the Rules of this Court. That rule states that “all applications

2 [2005] 1 EA 331 (CCK)

3 [1998] eKLR
 Allen Gichuhi

4 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

to the Court shall be by motion, which shall state the grounds of the application”. He
submitted that this requirement being mandatory in its language it is not enough for the
grounds to be given only in the supporting affidavit.The respondent should know the case
he/she has to answer. Ms. Karua for the applicant/respondent submitted that the ground
is stated in the body of the application “as incompetent”, and if that is not sufficient she
asked to be granted leave to amend the application.
We agree that the Notice of Motion is defective but the defect is curable, and, for that
reason, and Ms. Karua having applied for leave to amend the Notice of Motion, we
grant leave for the respondent to amend the Notice of Motion so as to comply with the
requirements of rule 42(1) of the Rules of the Court.’’

1.2.5 When the High Court Declines the Amendment of an Application

In contradistinction to the Echaria case Justice Havelock in the case of Fredrick Mwangi
Nyaga v Garam Investments and another4 considered if a party could amend a notice of
motion.

Facts
At the hearing of the injunction application, the plaintiff ’s advocate pointed out that
the injunction application as drawn sought interim orders of injunction pending
(only) the hearing and determination of the said application and inadvertently
omitted to include a prayer for injunction relief pending the determination of the
suit. He therefore sought leave to amend prayer 2 of the said application so as to seek a
restraining Order pending not only the hearing of the application but also of the suit.
That oral application was opposed by both counsel for the first and second defendants
and the court then directed the plaintiff to file a formal application seeking leave to
amend the application.
The plaintiff later filed a Notice of Motion seeking leave to amend the Notice
of Motion under the provisions of Order 8, rules 5(i), 7 and 8 of the Civil Procedure
Rules as well as sections 3, 3A and 100 of the Civil Procedure Act. The defendants
opposed the application on, inter alia, the following grounds: according to section 2 of
the Civil Procedure Act a Notice of Motion is not a pleading before the eye of the
law and it is therefore not capable of being amended and that the plaintiff/applicant
should withdraw the Notice of Motion Application in its entirety and file a fresh one.
The judge disallowed the application and held as follows:
“Turning now to the plaintiff ’s counsel’s submissions in relation to Order 8 of the Civil
Procedure Rules, 2010. First of all, let me state that I do not consider a Notice of Motion
to be a pleading. As pointed out by counsel, section 2 of the Civil Procedure Act defines:
“pleading” as including “a petition or summons, and the statements in writing of the
claim or demand of any plaintiff, and of the defence of any defendant thereto, and of
the reply of the plaintiff to any defence or counterclaim of a defendant.”
On my part, I consider this definition to be absolutely clear as to what amounts to
a pleading and that is the process of instituting and defending a suit as provided for

4 [2013] eKLR
Allen Gichuhi

Pleadings Without Tears- Tips in Civil Litigation 5

under the Rules. In my opinion, it does not include what may be termed interlocutory
applications including Chamber Summonses and Notices of Motion. As a result, I do
not consider that the plaintiff herein can bring his application for amendment of the
Notice of Motion dated 14 June 2013 under Order 8, rule 3 or indeed, rule 4. That
leaves the general power to amend as envisaged not only in section 100 of the Civil
Procedure Act but also under Order 8, rule 5. That Rule reads as follows:
“5.(1) For the purpose of determining the real question in controversy between the
parties, or of correcting any defect or error in any proceedings, the court may
either of its own motion or on the application of any party order any document
to be amended in such manner as it directs and on such terms as to costs or
otherwise as are just.
(2) This rule shall not have effect in relation to a judgement or order.”
12. With respect, I do not consider that learned counsel for the second defendant
has read the above provision entirely correctly. The second sentence after the word
“or” allows the correction of any defect or error in any proceedings. In my view,
a Notice of Motion is part of the proceedings of a suit. I do not consider that the
power to amend a proceeding is confined solely for the purposes of determining the
real question of controversy between parties. As a consequence, I agree with counsel
for the plaintiff when he says that this provision of Order 8, rule 5 allows this Court
to consider an application for amendment to (in this case), the plaintiff ’s Notice of
Motion dated 14 June 2013. I believe that the decision of the Court of Appeal in the
Echaria v Echaria case (supra) is binding upon this Court with the slight reservation
that the application to amend the Notice of Motion before that Court was brought
under the Court of Appeal Rules and not the Civil Procedure Rules. However, I do
not consider that the provision under which the application is brought would make
any difference to my finding as above.’’

1.2.6 Always Seek Leave Prior to Amending an Application

At times a party will simply amend the Notice of Motion without leave of the court
under the illusion that the court will be sympathetic and allow the amended motion.
Usually a party may even proceed to enjoin parties in the application without leave.
This was the scenario in the Court of Appeal case of Nathan Cheasang Moson & 2
others v Community Uplift Ministries.5

Facts
During the pendency of an application for stay of execution and injunction pending
the hearing and determination of an intended appeal, the applicant filed an amended
Notice of Motion without leave of the court.
The amended Notice of Motion sought to introduce injunctive prayers against a
party who had not been enjoined in the proceedings.
The application was opposed and a preliminary objection was raised on the
grounds that the application was filed without leave of court contrary to rule 16(1) of
the Court of Appeal Rules and that the applicants had not sought or obtained leave to
enjoin the party named as the second respondent in the amended Notice of Motion.

5 [2013] eKLR
 Allen Gichuhi

6 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

The court dismissed the amended Notice of Motion dated 3 July 2012 having
found that it was irregularly filed without with the leave of court. The court held that
the applicant should have sought leave to amend.
The court held:
“It is not in dispute that the amended Notice of Motion was filed without the leave of the
court. The learned counsel for the respondent, Mr. Mokua, however submitted that the
court has wide powers under the Appellate Jurisdiction Act to deem the amended Motion
to be duly filed.”
We have duly considered the Preliminary Objection and the submissions of counsel for
both parties. Rule 44 of the Court of Appeal Rules stipulates as follows:
“Rule 44(1) Whenever a formal application is made to the Court for leave to amend any
document, the amendment for which leave is sought shall be set out in writing and, if
practicable, lodged with the Registrar and served on the respondent before the hearing of
the application or, if that is not practicable, handed to Court and to the respondent at the
time of the hearing.
(2) Where the Court gives leave for the amendment of any document, whether on a
formal or an informal application, the amendment shall be made or an amended version of
the document be lodged within such time as the Court when giving leave may specify and
if no time is so specified then within forty-eight hours of the giving of leave and on failure
to comply with the requirements of this sub-rule, the leave so given shall determine.”
Rule 16(1) of the Rules of this Court states:
Rule 16(1) where any person obtains leave to amend any document, the document itself
may be amended or, if it is more convenient, an amended version of the document may
be lodged.
It is implicit from these rules that amendments of any document must be by the leave
of court. Such leave must be sought through an application whether formal or informal
and the amendments for which leave is sought must be in writing and served on the
respondent prior to the hearing of the application for leave. Where leave is granted, the
amendment shall be made or an amended version of the document be lodged pursuant to
rule 44(2) (supra).
The applicant filed the amended Notice of Motion dated 3 July 2012 without seeking or
obtaining leave to do so.There is no freedom for any litigant to amend documents without
leave of the court under the Rules of this court. The applicant should have taken cue from
the decisions of this court which show that in the past, this court has emphasized the need
to bring applications to amend at the earliest convenience (see Kenya Ports Authority v
E.A.P. and Lighting Company Ltd [1982] KLR 40) and also pointed out that its discretionary
power to grant leave to amend documents will be given where there has been inadvertent
omission and where all the material necessary is before the court and there is no need for
further evidence to be taken (see Kihuni v Gakunga and another [1986] KLR 572).’’
Allen Gichuhi

Pleadings Without Tears- Tips in Civil Litigation 7

1.2.7 Amending the Notice of Motion in Judicial Review Proceedings

Order 53 of the Civil Procedure Rules addresses the procedure in detail from the time
leave is granted to institute judicial review proceedings to the point in time when
leave is sought to amend the proceedings.
The first step is encapsulated in Order 53, rule 1 that sets out the procedure for
applying leave to commence judicial proceedings. The Rule reads:
Applications for mandamus, prohibition and certiorari to be made only with leave [Order
53, rule 1.]
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless
leave therefor has been granted in accordance with this rule.

(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers,
and shall be accompanied by a statement setting out the name and description of the
applicant, the relief sought, and the grounds on which it is sought, and by affidavits
verifying the facts relied on.

(3) The judge may, in granting leave, impose such terms as to costs and as to giving security
as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable
institution.

(4) The grant of leave under this rule to apply for an order of prohibition or an order of
certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until
the determination of the application, or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the
application be served for hearing inter partes before grant of leave. Provided further that
where the circumstances so require the judge may direct that the question of leave and
whether grant of leave shall operate as stay may be heard and determined separately
within seven days.

After leave is granted and the Notice of Motion is filed, new circumstances arise or a
new advocate comes on record and discovers that it is necessary to amend the Notice
of Motion. However, judicial review proceedings are unique in that any amendment
to the Notice of Motion cannot be done in isolation without amending the Statement
and Affidavit.This is when an application to amend may be made under Order 53 rule
4 that reads:
Statements and affidavits [Order 53, rule 4.]
(1) Copies of the statement accompanying the application for leave shall be served with
the notice of motion, and copies of any affidavits accompanying the application for
leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule
provided, be relied upon or any relief sought at the hearing of the motion except the
grounds and relief set out in the said statement.
 Allen Gichuhi

8 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(2) The High Court may on the hearing of the motion allow the said statement to be
amended, and may allow further affidavits to be used if they deal with new matter arising
out of the affidavits of any other party to the application, and where the applicant intends
to ask to be allowed to amend his statement or use further affidavits, he shall give notice
of his intention and of any proposed amendment of his statement, and shall supply on
demand copies of any such further affidavits.
(3) Every party to the proceedings shall supply to any other party, on demand, copies of the
affidavits which he proposes to use at the hearing.

What happens when an application is made seeking to amend the Notice of Motion
after a delay of 7 years after filing the Notice of Motion? This was the scenario in the
case of Republic v Chief Land Registrar and 9 others ex-parte James Njoroge Njuguna.6

Facts
The application for amendment was opposed and one of the grounds was that the
law does not provide for amendment of the substantive Notice of Motion in judicial
review proceedings.
The court held that the applicant’s advocates overlooked the delay in filing the
application for amendment and found that it was only fair that the applicant be
granted an opportunity to present his case as he thinks best.The court found that
respondents and interested parties would not suffer any prejudice since they would
have an opportunity to respond to the ex-parte applicant’s amended Notice of Motion.
Justice Korir thus held:
“17. I addressed the question of amendment of the substantive notice of motion in
a ruling I delivered on 7 August 2013 in Nairobi H.C. JR ELC No.9 of 2012,
Republic v Commissioner of Lands and 2 others ex-parte Jimmy Mutinda. In that
case I reached the conclusion that a notice of motion could be amended.My
decision was supported by the decisions of Nyamu, J (as he then was) in Republic
v Permanent Secretary, Ministry of Planning & National Development ex-parte Mwangi
S. Kimenyi [2006] eKLR and that of Rawal, J (as she then was) in Resley v Nairobi
City Council [2002] 1 EA 241.
18. That position has since received support from the recent Ugandan case of
National Outdoor Advertisement Contractors Association & 7 others v Uganda National
Roads, Kampala H.C. Misc. Application No. 3 of 2015; [2015] UGHCCD 93 (3
September 2015) in which Stephen Musota, J observed:
“My reading of the rules as a whole seems to suggest that the general principle is
that as long as the application for Judicial Review has been filed in the prescribed
time, it can under rule 7 be amended any time or at the time of hearing and
this may be by adding grounds and/or reliefs being sought contrary to the view
advanced by learned Counsel for the respondent that allowing the amendment
would deprive them of the defence of limitation. The respondent can only take
advantage of the Statute of Limitation at the time of filing of the claim, if that
filing has been done outside the time of limitation. But as regards amendment,
there is nothing in the rules which says that the Notice of Motion must at the
time of filing be perfect and free from defects. Once the Notice of Motion is
amended then it speaks from the date on which it was originally filed and not

6 [2016] eKLR
Allen Gichuhi

Pleadings Without Tears- Tips in Civil Litigation 9

from the date of amendment. The defect is thereby cured and the actions brought
in time. It will not be barred by statute.”
19. A similar position was taken by the Supreme Court of Belize (Conteh, CJ)
in Queen v Department of the Environment and another ex parte Belize Alliance of
Conservation Non-Governmental Organizations (BACANGO) where it was stated
that:
22. It is worth noting that even with the promulgation of the new Civil Procedure
Rules, 1998 (CPR), which came into effect in England on 26 April, 1999, the
provisions of Order 53 remain substantially the same, and now form part of
Schedule 1 of the Civil Procedure Rules.
23. Thus ordinarily, although an applicant for judicial review is precluded at the
substantive hearing from relying upon any grounds or seek any relief other than
the relief or grounds set out in his Statement in support of his application at
the leave stage - paragraph (1) of rule 6 of Order 53, this prohibition is however,
often attenuated, and there is provision in rule 6(2), as I have pointed out earlier,
to overcome this by seeking leave to amend, whether by specifying different or
additional grounds or relief or otherwise - see also Lewis op. cit. at p. 253.
24. It is, I think, instructive in this connection to quote from the judgment of Watkins,
L.J. vis-à-vis the reliance on grounds at the substantive hearing other than those
which had formed the basis for the leave application:
“The practice as to reliance on grounds other than those which have formed the basis for
leave to move given by . the . . . judge to an applicant for judicial review needs
to be explained . . . It is this.Where an applicant has made an application for leave
to apply on a number of grounds and is given leave to move expressly on one of
them, for example, it is unnecessary for him to renew his application . . . for the
purpose of relying on the other grounds on which he has not specifically been
given leave to move provided, and this of the utmost importance, that he gives
notice to the respondent whoever he may be, and if there is more than one then
each of them, that he intends at the substantive hearing to rely on one or more of
the other grounds on which he has not expressly been given by the . . . judge leave
to move. That is so that the respondent shall have ample opportunity to consider
his position in respect of the other grounds on which the applicant seeks to rely”.
28. I will therefore, accordingly, allow the amendments sought as they do not, in
any event, occasion any prejudice to the respondents who have yet to file any
affidavits in answer to the applicant.
29. The applicant is also by the same notice of 11 April 2002 seeking leave of the
Court to use further affidavits, viz, one by Brian Holland, the other, a second
affidavit by Ambrose Tillett. Both were sworn to on 11 April 2002 and have been
served on both respondents.
30. Both respondents are resisting the grant of leave to use these affidavits. The basis
of their objection, I believe, is that these affidavits will introduce new elements or
fresh evidence and in any event they relate to issues that arose after the decisions
the applicant is seeking to impugn were taken.
31. Again, I believe the short answer to the respondents on this score is contained in
the combined operation of paragraphs (2) and (3) of rule 6 of Order 53. These
provide:
“(2) The Court may on hearing of the motion or summons allow the applicant to
amend his Statement whether by specifying different or additional grounds of relief
or otherwise, on such terms if any, as it thinks fit and may allow further affidavits
to be used by him”.
“(3) Where the applicant intends to ask to be allowed to amend his Statement or to
 Allen Gichuhi

10 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

use further affidavits he shall give notice of his intention and of any proposed
amendments to every other party”. (emphasis added)
32. Clearly, I think the rules permit the applicant to apply to the Court to be allowed
to use further affidavits provided it gives notice of its intention to every other
party. In the instant application, as I have mentioned, the applicant has given notice
of its intention and served copies of the further affidavits on the respondents.
33. Although Lewis op. cit. at p. 252 to 253 expresses the view that the provision in
Order 53, rule 6(2) is directed primarily at the applicant who may wish to respond
to matters raised in a respondent’s affidavit in reply, I do not think, however, that
this is an impediment in the way of the Court exercising its discretion to allow an
applicant to use further affidavits even if, as here, there is, as yet, no affidavits from
the respondents on the substantive hearing of the applicant’s motion.”
20. In ex-parte Jimmy Mutinda (supra) I summarized my views on the question of
the amendment of the substantive notice of motion as follows:
“What does a statement contain? It contains the name and description
of the applicant, the relief sought and the grounds on which it is sought.
If the rule allows for the amendment of the statement, then it means
that the relief sought can be amended. If the relief sought can be
amended, then it goes without saying that the substantive notice of
motion which contains the prayers can be amended. It would serve no
purpose for a statement to be amended without granting leave for the
amendment of the substantive notice of motion.
Ms Maina and Mr. Njuguna argued that no new prayer can be
introduced in a substantive notice of motion since no leave has been
granted to seek relief in terms of the new reliefs to be introduced by a
proposed amendment. It should be noted that the application for leave
is accompanied by a statement and affidavits verifying the facts relied
upon. The leave is granted on the basis of the contents of the statement
and affidavits. When a Court allows a statement to be amended, it
follows that it has granted leave for commencement of judicial review
proceedings in the terms of the amended statement. As such, if a relief
sought in the statutory statement is amended, then the substantive
notice of motion should be amended to take care of the amended relief
in the statement. Once the Court grants an applicant leave to amend
a statement and the substantive notice of motion, the court has, by that
act, granted leave for an order of mandamus, prohibition or certiorari in
the terms of the amended pleadings. I therefore agree with J. G. Nyamu,
J and Rawal, J that this Court has jurisdiction to allow an application for
amendment of the substantive notice of motion. In doing so, the Court
will consider whether the intended amendment would substantially
change the case before it. It would therefore be ideal that whenever an
applicant seeks to amend his pleadings, he should annex the proposed
amendments so that the Court can decide whether or not to allow the
amendment.”
21. An amendment that is aimed at aiding the court in reaching a just decision
should not be rejected. What the court only needs to ensure is that the
amendment does not prejudice the other parties”.
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Pleadings Without Tears- Tips in Civil Litigation 11

1.2.8 Tips
(a) The proper way is to indicate below the amended pleaing, the manner in which
the amendment was made.Was the amendment made without or with leave of the
court? This is how the amended should read:

Amended Plaint

(Pursuant to Order 8A rule 1 of the Civil Procedure Rules); or (Pursuant to

the Order of the Court of 14 July 2006)
(a) When amending, the traditional method has been to manually underline the
amendments as required by Order 8, rule 2 that reads:
(2) All amendments shall be shown by striking out in red ink all deleted words, but
in such a manner as to leave them legible, and by underlining in red ink all added
words.
(3) Colours other than red shall be used for further amendments to the same
document.
A preferable alternative is to simply use a colour printer that will beautifully reproduce
the amendments.
(c) Many advocates forget that rule 16 of the Court of Appeal rules concisely sets out
how amendments are dealt with when filing documents in the Court of Appeal.
The Rule provides as follows:
16.(1) Where any person obtains leave to amend any document, the document
itself may be amended or, if it is more convenient, an amended version of the
document may be lodged.
(2) Where any person lodges an amended version of a document, the person shall
show clearly—
(a) any words or figures deleted from the original, by including those words or
figures and striking them through with red ink, so that what was written
remains legible;
(b) any words or figures added to the original, by writing them in red ink or
underlining them in red ink.
(3) Where any record of appeal includes any amended document, the amendments
shall similarly be shown in each copy of the record of appeal.
The importance of rule 16(3) should be remembered when preparing the Record of
Appeal. Make sure that you copy all the amendments to pleadings that were filed in
the superior court using a colour copier.
(d) When faced with the opposing arguments that the application for amendment
was filed late seek solace in the case of Central Kenya Limited v Trust Bank Limited7
for the proposition that mere delay is not a ground for declining to grant leave and
that the policy of the law is that amendments to pleadings are to be freely allowed
unless prejudice or injustice which cannot be property compensated for in costs
would be occasioned to the opposite party.
(e) When seeking leave to amend a pleading, set out the draft of the intended
amended pleading . Remember that the purpose of setting out the particulars

7 [2000]2 EA 365
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12 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

of the intended amendments is to ensure that you will only file the pleading
or application in the exact form pursuant to the one that was shown to court.
Never proceed to file an amendment pleading with new amendments that are in
addition to the original draft otherwise an application will be made to strike out
the offending strange new amendments. Remember the power of the Court to
disallow an amendment is set out in Order 8 rule 2 that reads:
2. Application for disallowance of amendment [Order 8, rule 2.]
(1) Within fourteen days after the service on a party of a pleading amended under
rule 1(1), that party may apply to the court to disallow the amendment.
(2) When the court hearing an application under this rule is satisfied that if an
application to make the amendment in question had been made under rule 3
at the date when the amendment was made under rule 1(1) leave to make the
amendment or part of the amendment would have been refused, it shall order the
amendment or that part of it to be struck out.
(3) Any order made on an application under this rule may include such terms as to
costs or otherwise as the court thinks just.
(f) When faced with a fatally defective application, rather than seeking leave to amend
it simply consider the merits of withdrawing it and filing a fresh one. This will all
depend on the exigencies of the case.This is what Justice Havelock said in the case
of Fredrick Mwangi Nyaga v Garam Investments & another (supra):
“As I see it, his only option is to withdraw the same and file a fresh application. Further, as
I have refused the plaintiff ’s application to amend, I am of the opinion that the application
dated 14 June 2013, as currently drawn and presented to Court, does not support the
interim Orders sought therein and the same are lifted accordingly.’’
Bear in mind that withdrawing an application may attract the penalty of costs.

1.3 Extension of the validity of summons: the principles in the

exercise of judicial discretion

One of the numerous applications that are filed on a routine basis deals with the
extension of the validity of expired summons. Despite the fact the application is made
ex parte many advocates leave the courtroom crestfallen when their applications are
dismissed with costs.
This seemingly innocuous application has caused untold grief to many applicants
especially when:
1. Fresh suit has to be filed at great expense.
2. A fresh suit cannot be filed because the claim has become time barred.
One must appreciate the gist of Order 5 rules 1 and 2 that deal with the issue, duration
and renewal of summons. The two rules read:
1. Issue of summons [Order 5, rule 1.]
(1) When a suit has been filed a summons shall issue to the defendant ordering
him to appear within the time specified therein.
(2) Every summons shall be signed by the judge or an officer appointed by the
judge and shall be sealed with the seal of the court without delay, and in any
event not more than thirty days from the date of filing suit.
(3) Every summons shall be accompanied by a copy of the plaint.
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Pleadings Without Tears- Tips in Civil Litigation 13

(4) The time for appearance shall be fixed with reference to the place of
residence of the defendant so as to allow him sufficient time to appear:
Provided that the time for appearance shall not be less than ten days.
(5) Every summons shall be prepared by the plaintiff or his advocate and filed
with the plaint to be signed in accordance with subrule (2) of this rule.
(6) Every summons, except where the court is to effect service, shall be collected
for service within thirty days of issue or notification, whichever is later,
failing which the suit shall abate.
2. Duration and renewal of summons [Order 5, rule 2.]
(1) A summons (other than a concurrent summons) shall be valid in the first
instance for twelve months beginning with the date of its issue and a
concurrent summons shall be valid in the first instance for the period of
validity of the original summons which is unexpired at the date of issue of
the concurrent summons.
(2) Where a summons has not been served on a defendant the court may extend
the validity of the summons from time to time if satisfied it is just to do so.
(3) Where the validity of a summons has been extended under sub-rule (2)
before it may be served it shall be marked with an official stamp showing
the period for which its validity has been extended.
(4) Where the validity of a summons is extended, the order shall operate in
relation to any other summons (whether original or concurrent) issued in
the same suit which has not been served so as to extend its validity until the
period specified in the order.
(5) An application for an order under sub-rule (2) shall be made by filing an
affidavit setting out the attempts made at service and their result, and the
order may be made without the advocate or plaintiff in person being heard.
(6) As many attempts to serve the summons as are necessary may be made
during the period of validity of the summons.
(7) Where no application has been made under subrule (2) the court may
without notice dismiss the suit at the expiry of twenty-four months from
the issue of the original summons.
Order V, rule 1 provides a comprehensive code that deals with the duration and the
procedural aspects involved in the duration and renewal of summons.

1.4 Suit Abates if Summons not Collected Within 30 Days

One innocuous statement that may portend doom to the plaintiff is Order 5, rule (1)
(6) that reads:
“Every summons, except where the court is to effect service, shall be collected for
service within thirty days of issue or notification, whichever is later, failing which the
suit shall abate.’’ [emphasis added]
The time limit of 30 days is ordinarily not observed by many advocates especially
when they file injunction applications. On account of concentrating on the injunction
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14 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

application, many a times advocates inadvertently forget to collect the summons. The
consequences are disastrous when the patient opponent waits for one year to lapse and
then applies to strike out the suit.To avoid falling into this trap, ensure that your clerks
follow up on the issue of the summons expeditiously within 30 days of filing suit.
Abatement of action is defined by Black’s Law Dictionary8 as follows:
1. The act of eliminating or nullifying
2. The suspension or defeat of a pending action for reason unrelated to the merits
of the claim
The 6th Edition of Black’s Law Dictionary also defineds Abatement of Action as follows:9
“Abatement is an entire overthrow or destruction of the suit so that it is quashed and
ended.’’

1.5 Laxity and Laches Defeat Applications for Extension of Time

It is falsely assumed that an application for extension of validity of summons would be

routinely granted as a matter of course as it is made ex-parte. The euphoria is temporal
as many advocates discover to their consternation that their applications for extension
of the validity of summons are dismissed.
Prior to the Civil Procedure Rules, 2010 and the passing of the Kenyan
Constitution in 2010, the locus classicus case that considered the extension of validity of
summons was Udaykumar C. Rajani and others v Charles Thaithi.10 It has been following
and applied by various courts post the 2010 Constitution.

Facts
The summons were issued by the superior court on 2 April 1987. After the superior
court was dissatisfied with the mode of service, the summons were reissued on 27
March 1992. No formal application for the extension of the validity of summons
had been made. The reissued summons were served and an appearance was filed on 9
September 1992.
A preliminary objection was raised to the effect that there being no valid extension
of the first summons the suit ought to be dismissed. The superior court dismissed the
preliminary objection.
The Court of Appeal was asked to address the issue whether before the enactment
of Legal Notice No. 5 of 1996 the court had the power under Order 5, rule 1 to
extend the validity of summons beyond 24 months from the date of its issue.
The summary of the Court of Appeal’s findings are as follows:
(1) Order 5, rule 1 provides a comprehensive code for the duration and renewal of
summons and therefore the non-compliance with the procedural aspect caused
by the failure to renew the summons under this Rule is such a fundamental
defect in the proceedings that the inherent powers of the court under section 3A
of the Civil Procedure Act cannot cure.

8 10th Edition, 2014 Thomson Reuters

9 2nd Reprint 1992- West Publishing Co.
10 Nairobi Civil Appeal No. 85 of 1996 (unreported).
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Pleadings Without Tears- Tips in Civil Litigation 15

2. The court, before 1996, could only by order extend its validity from time to
time for such period not exceeding 24 months from the date of its issue if it was
satisfied that it was just to do so.
3. Since no application had been made to extend the validity of the original
summons, the court had no power to extend the validity of summons beyond
24 months, when in fact there was no valid summons in existence. It follows
therefore that the alleged service upon the defendants was ineffective and invalid
and so were the summons issued on 28 August 1992.
The Court of Appeal allowed the appeal and dismissed the suit.
Another vintage case that dealt with the issue of extension of validity of summons
is Jairo A. Okonda v Kenya Commercial Bank.11

Facts
The suit was filed on 15 June 1999. The Plaint and Chamber Summons were served
on the defendant. The summons though issued by the court on 4 February 1997 had
not been served on the defendant as a result of the mistake of the plaintiff ’s previous
advocate who failed to serve the same for undisclosed reasons. Consequently, the
summons expired on 3 February 1998. The defendant’s advocate raised a preliminary
objection to the effect that the suit had abated and no orders could be made.
The Court held that an application to extend the validity of summons had to
be made within the first 12 months. If the period expired and the summons’ validity
expired, then there was nothing to extend. The judge accepted the Court of Appeal’s
decision in the case of Rajani v Thaithi cited above.

1.6 Cases on Extension of Validity of Summons Post the 2010

Constitution
Having laid out the various decisions on the need to be vigilant and diligent, let us
now examine how some decisions have addressed the question of validity of summons
in various Rulings delivered post the 2010 Constitution.
Cases where the court declined to extend the validity of summons or struck out
a suit where no summons had been collected after 12 months
1. Grace Wairimu Mungai v Catherine Njambi Muya12. The defendant, by a Notice of
Motion application dated 22 August 2013, sought to have the entire suit struck
off with costs because no Summons to Enter Appearance were filed together
with the plaint or at all as required by law and about two years had passed since
suit was filed. The plaintiff had failed to follow up and collect the summons as
the court record showed that the Summons to Enter Appearance addressed to the
defendant were still held (unsigned) in the court file.
This case raised several interesting arguments that are lifted from the Ruling. The
Court considered the various opposing arguments which it set out in its Ruling
as follows:
“The plaintiff equated the failure to take out the summons and to effect service
to a procedural oversight and sought refuge under article 159(2)(d) of the

11 Milimani HCCC No. 3089 of 1996 (unreported).

12 [2014] eKLR
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16 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Constitution that enjoins courts to administer justice without undue regard

to procedural technicalities and further submitted the overriding objective of
the courts as embodied under sections 1A and 1B of the Civil Procedure Act
is to facilitate the just, expeditious proportionate, and affordable resolution of
civil disputes efficiently in order to achieve substantive justice to all litigants
without undue regard to technicalities.
The plaintiff referred the court to the decision by Honarable Justice Mutava in
the case of Uncle Sam’s Githurai Ltd and another v Samuel Mureithi Muriuki
and others to support the proposition that where a defendant had taken part in
a suit he is deemed to have notice of the suit notwithstanding that summons to
enter appearance may not have been served. Mutava, Judge in the case stated thus:
15. “In my view, the purpose of summons to enter appearance is to bring to
the notice of the defendants of the fact of the institution and to require
them to respond to the plaintiff ’s claim. Where therefore the defendants
on their own motion file appearances and defence to the claim, it
becomes superfluous to still insist that summons should be served upon
them……...”
The plaintiff further referred the court to the Court of Appeal ruling in the case
of Kihonge Nganga and others v Kenya Commercial Finance Company Ltd
C.A N. NAI 309 of 1997 where the Court of Appeal in exercise of its discretion
granted the applicant an extension of time to serve a Record of Appeal on the
respondent where owing to an oversight, service of the Record of Appeal was
out of time by a period of 7 days. The plaintiff thus urges this court to exercise
its discretion in favour of sustaining the plaintiff ’s suit arguing that no prejudice
will be suffered by the defendant.’’
The summary of Justice Mutungi’s Ruling delivered on 3 April 2014 is
summarized as follows:
(a) Pursuant to the provisions of Order 5, rule 1 subrules 3,5 and 6 an obligation
is placed on the plaintiff to ensure the summons are prepared and signed by
the court and thereafter to effect service of the summons on the defendant.
(b) Until the Defendant is served with the summons to enter appearance there
is no basis for him to answer to the suit. In the present suit the plaintiff
served the suit documents excluding the summons to enter appearance
and the Defendant’s Advocates filed a notice of appointment ostensibly to
defend the application for injunction that had been served and required to
be responded to. The defendant did not file an appearance and never filed
a defence since no summons had been served on her.
(c) The plaintiff ignored a ruling on the injunction application delivered on
17 December 2012 when the court directed the parties to prepare the suit
for trial as provided under order 11 and required that they do so within
40 days from the date of the ruling and take a date for pretrial conference
for pretrial directions on the hearing date. No party took any action until
the defendant’s application that was filed over 20 months from the date
of the ruling of 17 December 2012 which put to question the plaintiff ’s
commitment to the prosecution of the suit.
(d) Order 5, rules 1 and 2 set out a very elaborate procedure of how summons
are to be processed, issued and served and where there are difficulties of
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Pleadings Without Tears- Tips in Civil Litigation 17

serving within the prescribed time frames an equally elaborate procedure

for extending the validity of the summons is outlined.
(e) The judge was unable to accept that Order 5, rule 1 would fall to be
considered as providing a mere procedural technicality as suggested by
the plaintiff. He found that it substantively provided the procedure under
which a defendant is called to answer to a suit and is thus core to the
initiation of a suit as far as a defendant is concerned.
(f) Where no summons has been issued in accordance with Order 5 and
appropriately served on the defendant there cannot be a competent suit
against a defendant. The provisions of Order 5, rule 1 are couched in
mandatory terms and cannot be taken casually and/or lightly.
(g) Service of summons on a defendant is a vital step in initiating the litigation
against a defendant and until a summons is properly served on the defendant
there is no valid invitation to the defendant to defend the suit.
(h) The court proceeded to strike out the suit with costs as it found that no
summons had been served on the defendant within the prescribed period.
2. Barclays Bank of Kenya Limited v Patrick Njuguna Kubai.13 The plaintiff filed an
application seeking to review the court’s decision that has declined to extend
the validity of summons. The plaintiff ’s original application for extension of the
validity of the said summons was made over a month after the summons had
expired. The court dismissed the application for review on the following ground
summarized below.
(a) Courts have wide and unfettered discretion to enlarge time to allow parties
to do certain acts where time limitations have been given and to proceed
to determine matters without undue regard to technicalities as provided
for in article 159(2)(d) of the Constitution of Kenya, 2010. However,
courts have to be careful when balancing this discretion by considering
the consequences of certain acts which are not done within the stipulated
period in particular where there are express and clear provisions of the law
regarding those timelines.
(b) The Summons to Enter Appearance herein were to expire on 5 February
2013. It is therefore not lost to the court that the plaintiff ’s firm of advocates
was aware of the importance of extending the validity of the summons
before the same expired as its letter to the Deputy Registrar was written
before the said Summons to Enter Appearance to wit on 1 February 2013.
(c) This court was alive to the fact that the Summons to Enter Appearance
had expired and took the view that the same could not be extended as the
same were dead.They were non-existent by the time the Notice of Motion
application dated 13 March 2013 was filed and heard. This is still the same
position taken by the court even when considering the present application
to review its orders of 24 January 2014.
(d) The court was alive to the fact that the summons to enter appearance had
expired and took the view that the same could not be extended as the

13 [2014] eKLR
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18 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

same were dead. They summons were deemed to be non-existent by the

time the Notice of Motion application dated 13 March 2013 was filed and
heard.
3. Elegant Colour Labs Nairobi Limited v Housing Finance Company (K) Limited and
others14 , where the court held as follows:
“It seems to me proper and correct to say that extension of summons aforesaid can
only logically be made while the original summons is still valid. If the original
summons is left to expire, in my view it would be legally impossible to extend it
when it has so expired and therefore ceased to exist…the summons under the said
order which have capacity to be extended by the court on the application by the
plaintiff, are the summons that are still valid. This means an application to extend
can only be made within the duration of 12 months under rule 1 fore-cited or
under any duration allowed in the extension of original summons…”
4. Julius Njoroge Muira v Harrison Kiambuthi Mburu.15 The court considered expired
summons as beyond resurrection. It held:
“I shall thus without hesitation find that the Original Summons is not in existence
and all the efforts to revive the same by reissuance were null and void.The Original
Summons which has lost its life cannot be resurrected… I shall quote the passage
by Lord Denning in the case of Macfoy v United African Limited [1961] 3 All ER
1169 at 1172:
“If an act is void, then it is in law a nullity and not a mere irregularity. It is not only
bad but incurably bad…And every proceeding which is founded on it is also bad
and incurably bad. It will collapse.”
The non-compliance of the process of renewal is a fundamental defect which
cannot be cured by inherent powers.”
5. Zakaria Somi Nganga v Kenya Commercial Bank Limited & 3 others16 where the
court disallowed the application to extend expired summons and held as follows:
“The summons to enter appearance in this case expired 12 months from the
date of issue…it was not possible to revive them. That therefore means that the
plaintiff ’s suit lapsed for reason of non-compliance of Order V rule 1 of the Civil
Procedure Rules…”
6. Florence Ngosia Masieyi (suing for and on behalf of the estate of the late Fredrick Masieyi
Shitonda v George Gitau Mungai and 2 others.17 The court considered the impact
of the overriding objective vis-à-vis the application for extension of validity of
summons against other defendants who had not been served.The plaintiff sought
leave to serve Summons to Enter Appearance upon the 1st and 2nd defendants
by way of substituted service as they could not be traced for purposes of effecting
service.The 3rd respondent opposed the application on the main ground that the
summons sought to be served by way of substituted service were “stale” as they
had expired. In dismissing the application, the court’s findings are summarized as
follows:

14 [2010] eKLR
15 [2011] eKLR
16 [2008] eKLR
17 [2015] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 19

(a) The summons had expired and that there was no application made to
extend their validity. Order 5 of the Civil Procedure Rules (2010) provides
a comprehensive procedure for issuing, serving and generally dealing with
summons. However, those procedures have not been exhausted by the
applicant in relation to this suit. More specifically, the summons issued
herein expired on 15 May 2012 and its validity was not extended. As it is,
there are no valid summons before court. The plaintiff ’s suit has therefore
abated as regards the 1st and 2nd defendants.
(b) The applicant could not apply to extend validity of summons after they
have expired as there would be no valid summons to extend the suit having
abated. The court adopted the dicta in the case of VdayKumar Chanulal
Rajini and others v Charles Thaiti – civil appeal number 85 of 1996 where
the Court of Appeal held that the court did not have jurisdiction to extend
validity of summons beyond 24 months.
(c) Court declined to strike out suit against the 3rd defendant who had filed a
defence.
(d) The purpose for serving summons on a defendant is to bring to that party’s
attention the filing of a suit against him and calling on him/her to intimate
to the court whether he/she intends to defend the suit and if so file his/her
defence within a specified period. That is why Order 5, rule 1(1) is in the
following words;
“Where a suit has been filed a summons shall issue to the defendant
ordering him to appear within the time specified therein.”
(e) The 3rd defendant having filed a defence and raised a counter-claim suffered
no prejudice. The court held that dismissing the plaintiff ’s suit against the
3rd defendant would cause more injustice to the plaintiff than the prejudice,
if any, caused to the 3rd defendant by non-service of summons. The court
was minded of doing substantive justice than dismissing the plaintiff ’s suit
against a party who had filed a defence on a procedural technicality.
(f) The court held that with the introduction of the overriding Objective
Principle under sections 1A and 2A of the Civil Procedure Act, courts were
emboldened to be guided by a broader sense of justice, to achieve a fair,
just, speedy, proportionate, time and cost saving disposal of suits. And as
was observed by Nyamu, JA, in Kenya Commercial Bank Ltd v Kenya Planters
Co-operative Union [2013] 1EA, technicalities of procedure, non-compliant
precedents or the exercise of power in a manner that would defeat the
court’s core business of acting justly would have to give way.
7. Municipal Council of Embu v Postal Corporation of Kenya.18. The defendant applied
to dismiss the plaintiff ’s suit for want of prosecution and for failure to extend the
validity of summons. The defendant also complained that the plaintiff took no
steps to prosecute the suit after enjoying an injunction for more than one and a
half years. In an interesting turn of events the plaintiff blamed his advocate for not
serving the summons and for not fixing the matter for hearing and begged the

18 [2014] eKLR
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20 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

court not to punish him for the mistake of his advocate. However, the court noted
that the plaintiff had not demonstrated what steps he took to follow up his case
with a view to ensuring that summons were taken out and the matter was fixed for
hearing. The suit was dismissed and the court noted as follows:
(a) The plaintiff was guilty of negligence for not following up on his case and
that it was not enough for a party to simply blame his advocate without
showing tangible steps taken up by him to follow up his case.
(b) The objective of article 159(2)(d) of the Constitution of Kenya was not
to validate actions that are null and void but disguised as procedural
technicalities. The court further held that those provisions could not be
invoked by a party who had been indolent and fails to comply with the
laid down provisions of the law to ride on a ground of a mere irregularity
or procedural technicality.

1.7 Enlargement of Time

What if an application is made by the plaintiff seeking to enlarge time within which
to file an application for extension of summons that had expired?
Order 50, rule 6 of the Civil Procedure Rules provides:
“Where a limited time has been fixed for doing any act or taking any proceedings
under these Rules, or by summary notice or by order of the court, the court shall
have power to enlarge such time upon such terms (if any) as the justice of the case
may require, and such enlargement may be ordered although the application for the
same is not made until the expiration of the time appointed or allowed:
Provided that the costs of any application to extend such time and any order
made thereon shall be borne by the parties making such application, unless the
court orders otherwise.”
It must be pointed out that the jurisdiction to enlarge time can only be made under
Order 49, rule 5 of the Civil Procedure Rules and not section 95 of the Civil Procedure
Act.
Section 95 reads:
“Where any period is fixed or granted by the court for the doing of any act prescribed
or allowed by this Act, the court may, in its discretion, from time to time enlarge such
period, even though the period originally fixed or granted may have expired.”
This distinction has been pointed out in the case of Patel v Singh and another.19The
Court of Appeal at Nairobi in deciding an appeal from the Supreme Court of Kenya,
allowed an application that sought to extend the time for the filing of an application
seeking to set aside an arbitral award. The Court held that Order 5, rule 5 of the Civil
Procedure Rules applied. It, however, rejected the submission that the court also had
jurisdiction to extend the time under section 95 of the Civil Procedure Ordinance
(identical to section 95 of our Civil Procedure Act).
The Court held as follows:
“We do not think that this section can have any application to a case such as the present

19 [1956] EACA 209.

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Pleadings Without Tears- Tips in Civil Litigation 21

one. The expression “fixed or granted by the court “is, in our view, fatal to any submission
to the contrary. “Court “is defined in section 2 of the Ordinance as meaning “any civil
Court other than Muslim Subordinate Courts”. That definition seems clearly to envisage
a Court sitting in its judicial capacity and could not, we think, include the Supreme
Court of Kenya as a rule-making authority empowered by section 20 of the Arbitration
Ordinance.”
In the case of Holman v George Elliot and Co. Ltd,20the plaintiff had failed to serve
the writ within 12 months and the writ was rendered void. He filed an application
seeking the extension of the validity of the writ. The defendant’s advocate argued that
as there was no application to extend the writ within 12 months then the writ was
rendered void. They, however, conceded that the writ could be extended after the 12
months by seeking leave to enlarge time but that such renewal would not be granted
if the claim would become statute barred if the renewal was granted.
The Court held that there was no rule depriving a judge of his discretion to
extend the time for non-compliance of a procedural requirement and the court has
the discretion to extend the time.
The Court, however, cautioned that there was an accepted practice as laid down in
Doyle v Kaufman21where the court held:
“to extend the time for renewing a writ of summons when the claim would, in the
absence of such renewal, be barred by the Statute of Limitations.”
Kenya Commercial Bank Limited v Ann Kajuju Magondu and others22 dealt with the
question of extension of validity of summons and re-issue of summons. Leave to serve
the said summons by substituted service by way of advertisement in the Daily Nation
and the Standard Newspapers was granted. Justice Mabeya held that a court could
extend such summons before or after the expiry of the summons as it had power to
extend the time for doing something under Order 50, rule 6 of the Civil Procedure
Rules, 2010.
Duncan Mwangi Kiora v Valley Bakery Limited and others23was a case where the
court considered the question of extending the validity of the summons which had
expired for more than a year and had not served upon the defendant therein. While
appreciating that the plaintiff ’s advocate had been indolent, Justice Dulu extended the
validity of the summons by virtue of article 159(2) of the Constitution of Kenya, 2010.

1.8 Grounds for the exercise of Judicial Discretion in Extending

the Validity of Summons

The Supreme Court Practice, 1999 Edition Volume 1 has at pages 54 to 56 provided
various considerations that the court looks at when considering applications for the
extension of the validity of summons. The overriding principle is that the extension
of the validity of summons is not to be granted as of course on an application, which
is necessarily made ex parte. The courts require that good cause or sufficient reason
must be demonstrated.We shall borrow heavily from the cited pages to illustrate a few
20 [1944] 1KB 591
21 [1877] 3 Q.B.D 7 not
22 [2012] eKLR
23 [2011] eKLR
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22 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

instances of what the court considers in applications for the extension of the validity
of summons.

1.8.1 Good Reasons for Extensions

(a) A clear agreement with the defendant that service of the writ be deferred.
(b) Impossibility or great difficulty in finding or serving the defendant, more particularly
if he is evading service.

1.8.2 Bad Reasons for Extensions

(a) That negotiations are proceeding. In the absence of an actual agreement that service
be deferred, it is both incorrect and dangerous to defer service in the hope that
negotiations will succeed, too often a writ is forgotten until after the limitation
period has elapsed; offers may be withdrawn and the plaintiff left without remedy
save against his solicitors.
(b) That there is difficulty in tracing witnesses or obtaining expert or other evidence.
(c) Carelessness.
A court will always note if the plaintiff ’s advocate was aware of the importance of
extending the validity of the summons before the same expired whenever any letter
is written to the court registry seeking extension of the summons in the absence of
a formal application. This will always be held against the advocate and substantially
diminish the chances of success in having the summons extended.
Summons will not normally be renewed so as to deprive the defendant of the
accrued benefit of a limitation period (see page 55 of the Supreme Court Practice
which also has exceptions which are the same as the two grounds cited in “good
reasons for extensions” cited above).
Where application for renewal is made after the summons have expired and after
the expiry of a relevant period of limitation the applicant must not only show good
reason for the renewal, but must give a satisfactory explanation for his failure to apply
for the renewal before the validity of the summons has expired.
From the foregoing, it is clear that the court has discretion to entertain an
application brought under Order 50, rule 6 that seeks to enlarge the time to make
an application brought under Order 5, rule 2(2) of the Civil Procedure Rules. In
all instances the court then has to consider whether there has been a reasonable
explanation for the delay and the hardship that may be brought to both sides.

1.9 Substituted service

Instead of going through the grief of having to extend the summons, one should
consider the option of simply applying for substituted service under Order 5, rule
17(3) of the Civil Procedure Rules. The reason why most advertisements in the
newspapers are expensive is because we set out the full title of the court case which
is about half the cost of the advertisement. This method would be useful if you want
the advert to loudly proclaim to the whole world about the existence of the suit and
your client is prepared to foot the bill. Simply adopt the format set out in Appendix A
Form 5 of the Civil Procedure Rules that sets out the statutory format of the format
for substituted service.
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Pleadings Without Tears- Tips in Civil Litigation 23

Appendix A Form no. 5

Substituted Service by Advertisement
(O.5, r 17)
To: Artur Margarine
of P.O.Box 123 00700 Nairobi
Take notice that a plaint has been filed in the Chief Magistrates Court at Nairobi in Civil
Suit No.12121 of 2006 in which you are named as the 5th defendant. Service of summons
on you had been ordered by means of this advertisement. A copy of the summons and the
plaint may be obtained from the court at P.O. Box 44810 00100 Nairobi.
And further take notice that, unless you enter an appearance within 21 days, the case will
be heard in your absence.
Kamau Onyango Advocates
Pesa Plaza, 3rd Floor
P.O. Box 123
Nairobi
So the next time you have an elusive defendant who cannot be traced after several
attempts,do not grieve when the solution is staring you in the face. As a matter of
practice, the minute the defendant cannot be traced, simply apply for substituted
service during the validity of the summons and then obtain your default judgment.
You can then have the luxury of time to trace him after obtaining default judgment.

1.10 Tips
(a) When filing any injunction application always insist that the court signs the
summons immediately after directions are given on the urgency of the application.
As a matter of practice the court clerks must ensure that the summons are signed
and sealed and ready for collection on the same day.
(b) Be vigilant and follow up with your clerk to ensure that the summons are obtained
within days. As a reminder, mark in your diary a regular follow up schedule for
collection of the summons.
(c) When preparing summons that involve a borrower and a guarantor, ensure that the
correct amounts set out in the plaint are reflected in the summons to be served on
each defendant. At times the liability of the guarantor may be less than the principal
debt owed by the borrower. When that happens, the sums in the summons must
be set out differently and not cumulatively as that may on the face of it exceed the
pecuniary jurisdiction of the magistrates court, if suit was filed there.
(d) Vigilance pays and you may never have to apply for extension of summons ever
again.
(e) Before applying for substituted service ensure that you have set out the number of
attempts made in tracing the elusive defendant. Attach the process server’s affidavit
showing the attempts made and even an investigator report if available.
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24 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1.11 Preliminary Objections

A favourite tool tactically employed when the aim is to derail the hearing of the suit
leading to escalation of costs. A preliminary objection consists of a point of law which
has been pleaded, or which arises by clear implication out of the pleadings and which
if argued as a preliminary point may dispose of the suit. Examples are an objection to
the jurisdiction of the court, a plea of limitation, or a submission that the parties are
bound by the contract giving rise to the suit to refer the dispute to arbitration.24
A preliminary objection is in the nature of what used to be a demurrer. It raises
a pure point of law, which is argued on the assumption that all facts pleaded by the
other side are correct. It cannot be raised if any fact has to be ascertained or if what is
sought is the exercise of judicial discretion. The improper raising of points by way of
preliminary objection does nothing but unnecessarily increase costs and, on occasion,
confuse the issues. This improper practice should stop-per Mukisa Biscuits Co v West
End Distributors Ltd. 25
Careful thought must be given when raising vague preliminary objections whose
intent is shrouded in mystery that cannot be discerned from the pleadings. It is
insufficient to say that you will raise a point of law when that point is not apparent
from the body of the pleadings or set out precisely in the preliminary objection.26
Always be concise and specific when raising preliminary objection. Never use
vague words like ‘the suit is bad in law’’ without specifying why it is bad in law.
Many advocates still subscribe to trial by ambush when they file defences that
raise vague expressions of threat about purported substantive or procedural defects
in the plaint. Common place reiterations of such vague threats that do not allude to
specifics are:
The suit is an abuse of the court process;
The suit is bad in law.
The suit does not disclose a cause of action.
A preliminary objection will be raised on a point of law to strike out the suit.
Such pleadings are not only in bad taste but fall foul of the provisions of the Civil
Procedure Rules. Order 2 of the Civil Procedure Rules exhorts advocates to
particularise any specific objections to the opponent’s pleadings. Order 2 sets out the
following pertinent Rules:
4. Matters which must be specifically pleaded [Order 2, rule 4.]
(1) a party shall in any pleading subsequent to a plaint plead specifically any matter,
for example performance, release, payment, fraud, inevitable accident, act of
god, any relevant statute of limitation or any fact showing illegality—
(a) which he alleges makes any claim or defence of the opposite party not
maintainable;
(b) which, if not specifically pleaded, might take the opposite party by
surprise; or

24 [1969] EA 697 per Law, J at page 700 para D-

25 Per Sir Charles Newbold, P at page 701 paragraph B in Mukisa supra.
26 Per Ringera J in Agricultural Finance Corporation & Ano. v Kenya Alliance Insurance Company Ltd & Ano. [2002]
1 KLR 231 at 232.
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Pleadings Without Tears- Tips in Civil Litigation 25

(c) which raises issues of fact not arising out of the preceding pleading.
(2) Without prejudice to subrule (1), a defendant to an action for the recovery of
land shall plead specifically every ground of defence on which he relies, and
a plea that he is in possession of the land by himself or his tenant shall not be
sufficient. (3) In this rule “land” includes land covered with water, all things
growing on land, and buildings and other things permanently affixed to land.
5. Matter may be pleaded whenever arising [Order 2, rule 5.]
Subject to rules 3(1) and 6, a party may in any pleading plead any matter which has
arisen at any time, whether before or since the filing of the plaint.
6. Departure [Order 2, rule 6.]
(1) No party may in any pleading make an allegation of fact, or raise any new
ground of claim, inconsistent with a previous pleading of his in the same suit.
(2) Subrule (1) shall not prejudice the right of a party to amend, or apply for leave
to amend, his previous pleading so as to plead the allegations or claims in the
alternative.
9. A party may by his pleading raise any point of law.
10. Particulars of pleading [Order 2, rule 10.]
(1) Subject to subrule (2), every pleading shall contain the necessary particulars of
any claim, defence or other matter pleaded including, without prejudice to the
generality of the foregoing—
(a) particulars of any misrepresentation, fraud, breach of trust, wilful default
or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any person,
whether any disorder or disability of mind or any malice, fraudulent
intention or other condition of mind except knowledge, particulars of
the facts on which the party relies.
(2) The court may order a party to serve on any other party particulars of any
claim, defence or other matter stated in his pleading, or a statement of the
nature of the case on which he relies, and the order may be made on such
terms as the court thinks just.
(3) Where a party alleges as a fact that a person had knowledge or notice of some
fact, matter or thing, then, without prejudice to the generality of subrule (2),
the court may, on such terms as it thinks just, order that party to serve on any
other party—
(a) where he alleges knowledge, particulars of the facts on which he relies;
and
(b) where he alleges notice, particulars of the notice.
(4) An order under this rule shall not be made before the filing of the defence
unless the order is necessary or desirable to enable the defendant to plead or
for some other special reason.
(5) No order for costs shall be made in favour of a party applying for an order who
has not first applied by notice in Form No. 2 of Appendix B which shall be
served in duplicate.
(6) Particulars delivered shall be in Form No. 3 of Appendix A which shall be filed
by the party delivering it together with the original notice and shall form part
of the pleadings.
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26 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1.11.1 Do not Raise Preliminary Objections not Set out in the Defence
A good example where a party raised a preliminary objection without the same being
anchored in the defence is the case of Stephen Onyango Achola and another v Edward
Hongo Sule and another.27

Facts
The appellants alleged the tort of fraudulent misrepresentation against the two
respondents and when the matter came up before the High Court, the second
respondent took a preliminary objection to the claim, arguing that the suit brought
against it was time-barred as the tort alleged was said to have been committed in 1994
and the original plaint in the High Court was only filed in 1997. The High Court
upheld the objection and dismissed the suit leading to the appeal.
The Court of Appeal expressed the difficulty it found with the second respondent’s
preliminary objection based on limitation and which was upheld by the High Court.
The Court found that the defendant did not plead the defence of limitation but
instead pleaded in paragraph 15 of its defence that:
“The second defendant contends that this suit is completely tainted with malice and is
frivolous, vexatious and an abuse of the process of law.The second defendant further avers
that this suit does not disclose a cause of action and should be dismissed”.
The Court of Appeal allowed the appeal and set aside the ruling and order of the
High Court dismissing the appellants’ suit against the second respondent. The Court
substituted the order with one dismissing the preliminary objection raised by the
second respondent to the appellant’s claim and restoring the appellants’ suit against the
second respondent to be heard in the usual way.
The findings on this point by the Court of Appeal are as follows:
“The difficulty we find with the second respondent’s preliminary objection based on
limitation and which was upheld by Tanui, J is that in its defence filed in the High Court
on 22 September 1997, the second respondent did not plead the defence of limitation.
The second respondent pleaded in paragraph 15 of its defence that:
“The second defendant contends that this suit is completely tainted with malice and is
frivolous, vexatious and an abuse of the process of law.The second defendant further avers
that this suit does not disclose a cause of action and should be dismissed”.
but it was never stated why the suit did not disclose a cause of action. Certainly nowhere
in that defence was it specifically pleaded that the claim was time-barred under the
provisions of the Public Authorities Limitation Act.
Order VI, rule 4(1) and (2) of the Civil Procedure Rules is in these terms:
“4(1) A party shall in any pleading subsequent to a plaint plead specifically any matter,
for example performance, release, payment, fraud, inevitable accident, act of God,
any relevant statute of limitation or any fact showing illegality:

27 [2004] eKLR. The Court of Appeal delivered its decision on 30th day of April 2004 based on Order VI rule
4 (1) and (2) of the Civil Procedure Rules that was repealed but retained in Order 2, rule 4 of the Civil
Procedure Rules 2010.
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Pleadings Without Tears- Tips in Civil Litigation 27

(a) which he alleges makes any claim or defence of the opposite party not
maintainable; or
(b) which, if not specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues of act not arising out of the preceding pleadings.
(2) Without prejudice to sub-rule (1), a defendant to an action for the recovery of land
shall plead specifically every ground of defence on which he relies, and a plea that
he is in possession of the land by himself or his tenant shall not be sufficient.”
The claim by the two appellants was for recovery of land. The second respondent
was relying on the provisions of a statute, that is, Act No. 5 of 1974 to defeat that
claim. The provisions of Order VI, rule 4(1) and (2) required him to specifically
plead the statue on which provision he relied to defeat the appellants’ claim.
Support for Order VI, rule 4 (1) and (2) is to be found in Halsbury’s Laws of England,
4th Edition,Volume 36 at paragraph 48, page 38 headed:
“Matters which must be specifically pleaded: The defendant must in his
defence plead specifically any matter which he alleges makes the action not
maintainable or which, if not specifically pleaded might take, the plaintiff
by surprise, or which raises issues of fact not arising out of the statement of
claim. Examples of such matters are performance, release, any relevant statute
of limitation, fraud or any act showing illegality. Other matters which must be
so pleaded are the Statute of Fraud, and the provision of the Law of Property
Act, 1925 which requires contracts for the sale or disposition of land to be
in writing, and, it seems, any ground of objection to the jurisdiction of the
Court.”
Mr Onsongo, the learned Counsel for the second respondent, simply raised the
issue of limitation by way of a preliminary objection. Under Order VI, rule 4 (1)
and (2) the respondents were obliged to specifically plead limitation based on
statute, that is, Act No. 5 of 1974, before being allowed to sue it as the basis of
their preliminary objection, Had they done so, the appellants could have probably
answered that even though the fraudulent misrepresentation alleged and relied
on by them was perpetrated in 1994, they did not discover the fraud until much
later on and we presume the appellants would then have been bound to disclose
the date when they had discovered the fraud. Section 26 of the Limitation of
Actions Act provides that in cases of fraud, the period of limitation only starts
to run from the time the fraud is discovered or ought to have been discovered if
reasonable diligence had been applied. Mr Onsongo contended that the date on
which the fraud was discovered was part of the factual issues which would show
whether or not the appellants’ claim disclosed a cause of action, and ought to have
been pleaded. We do not think that is correct. A plaintiff is not bound to plead in
his plaint issues which would negate possible defences such as limitation, fraud,
mistakes and so on long before such issues are raised. He can only deal with such
defences if and when they are actually raised in the defence. That must be why
Order VI rule 4(1) starts:
“A party shall in any pleading subsequent to a plaint….”
The second respondent having failed to specifically plead the issue of limitation
in its defence it was not entitled to rely on that issue and base its preliminary
objection on it; nor will the second respondent be entitled to rely on that defence
during the trial of the suit unless it amends its defence. It is trite law that cases
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28 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

must be decided on the issues pleaded and we need not cite any authority for that
proposition. It is equally not to be forgotten that a party who is entitled to rely on
the defence of limitation is perfectly entitled to waive such defence and thus let
the suit proceed to trial on its merit.’’
Another case where the High Court deprecated the improper raising of vague
preliminary objections which do not inform the opposite party and the court what
exactly is intended to be argued is the case of Agnes Mukami and 5 others v Ngewaji Co.
Ltd.28

Facts
The applicants filed an application by way of a Notice of Motion under Order XLI,
rule 4(1) and Order L, rule 1 of the Civil Procedure Rules seeking an order of stay of
execution of implementation of adoption of and all consequential orders arising out
of the decision of the Business Premises Rent Tribunal Cases.
Before the said application was heard, the respondent filed a notice of preliminary
objection and stated that the application was misconceived, bad in law and incompetent
and that the application was procedurally improper before the court. I must pause here
and state that I deprecate the practice of raising vague preliminary objections.
Justice Musinga (as he then was) dismissed the preliminary objection with costs
and held as follows:
“Since a valid preliminary objection may have serious ramifications to a suit or an
application including striking out of the suit or summary dismissal thereof, a preliminary
objection should be sufficiently clear and informative so that the party against whom
it is raised can either concede to the same or prepare appropriately to oppose it instead
of leaving the opposite party guessing as to what may have caused the proponent of the
preliminary objection to state that the suit or application is misconceived, bad in law
and incompetent. A clear and well taken preliminary objection may expedite disposal of
matters before a court but on the other hand a vague preliminary objection often causes
delay in determination of matters.’’

1.11.2 A Preliminary Objection Must Fail if Evidence Must be Led

In the case of National Bank of Kenya Limited v Peter Kipkoech Korat and another29 the
defendant raised a preliminary objection to the effect that the defendant’s advocate
had in the past also represented the plaintiff in the professional capacity as an advocate.
The objection was dismissed and the court held
“Mr Kuloba, learned Counsel for the bank was however of the view that the Preliminary
Objection is not sustainable, as the issues of conflict of interest cannot be raised by way of
a Preliminary Objection. I am inclined to agree with him as the legal position regarding
Preliminary Objection was well laid down in the case of Mukisa Biscuit Manufacturing Co.
Ltd v West End Distributors [1969] EA 696, in which Law, JA, stated that:

28 [2005] eKLR
29 [2005] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 29

‘…a Preliminary Objection consists of a point of law argued as a preliminary point

may dispose of the suit….’ It is clear to me that the issue raised by the defendants
pertaining to representation of these parties, would require evidence and in which
case they cannot be entertained by way of Preliminary Objection as relations cannot
be inferred and on that ground alone, this objection cannot be sustained.”
Mehuba Gelan Kelil and others v Abdulkadir Shariff Abdirhim and others.30
The respondent raised Preliminary Objections that were contested and which the
court found to be blurred with factual details and evidence that would require intense
investigation by the court. The court dismissed the preliminary objection and Justice
Gikonyo held as follows:
“6. I need not re-invent the wheel. It is trite law that a preliminary objection should
be based on pure points of law which do not require copious probing of evidence
in order to ascertain. See the opinion by Law, JA on this point in the case of Mukisa
Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 when he
rendered himself thus:
“So far as I’m aware, a preliminary objection consists of a point of law which has
been pleaded, or which arises by clear implication out of pleadings, and which if
argued as a preliminary point may dispose of the suit. Examples are an objection to
the jurisdiction of the Court, or a plea of limitation, or a submission that the parties
are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
7. Similarly Sir Charles Newbold in the same case stated that:
“The first matter relates to the increasing practice of raising points, which should
be argued in the normal manner, quite improperly by way of preliminary objection.
A preliminary objection is in the nature of what used to be a demurrer. It raises a
pure point of law which is argued on the assumption that all the facts pleaded by
the other side are correct. It cannot be raised if any fact has to be ascertained or if
what is sought is the exercise of judicial discretion.The improper raising of points by
way of preliminary objection does nothing but unnecessarily increase costs and, on
occasion, confuse the issue. This improper practice should stop.”
8. In Oraro v Mbaja [2005] 1 KLR 141 Ojwang, J (as he then was) expressed himself as
follows on preliminary objections:
“A preliminary objection consists of a point of law which has been pleaded or which
arises by clear implication out of pleadings, and which if argued as a preliminary
point may dispose of the suit. Examples are an objection to the jurisdiction of the
court, or a plea of limitation, or a submission that the parties are bound by the
contract giving rise to the suit to refer the dispute to arbitration. The first matter
relates to increasing practice of raising points, which should be argued in the normal
manner, quite improperly by way of preliminary objection. A preliminary objection
is in the nature of what used to be a demurrer. It raises a pure point of law, which
is argued on the assumption that all facts pleaded by the opposite side are correct. It
cannot be raised if any fact is to be ascertained or if what is sought is the exercise of
judicial discretion. The improper raising of points by way of preliminary objection
does nothing but unnecessarily increase costs and, on occasion confuse issues and this
improper practice should stop… The principle is abundantly clear. A “preliminary

30 [2015] eKLR
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30 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

objection” correctly understood, is now well defined as, and declared to be, a point
of law which must not be blurred with factual details liable to be contested and in
any event, to be proved through the processes of evidence. Any assertion, which
claims to be a preliminary objection, yet it bears factual aspects calling for proof, or
seeks to adduce evidence for its authentication, is not, as a matter of legal principle,
a true preliminary objection which the court should allow to proceed. Where a
court needs to investigate facts, a matter cannot be raised as a preliminary point…
Anything that purports to be a preliminary objection must not deal with disputed
facts, and it must not itself derive its foundation from factual information which
stands to be tested by normal rules of evidence..................”
9. This is the test in determining whether an objection raised by parties is a true
objection in the sense of the law. Does the 2nd respondent’s preliminary objection
satisfy the requirements set out above? I have meticulously looked at and considered
the five points which have been raised in the Preliminary Objection. It contests the
jurisdiction of this court to hear the application dated 16 July 2014 to the extent
that the reliefs sought are against persons not party to the suit. It again argues that
this court also lacks jurisdiction to issue an order that would quash and/or compel a
public officer such as the Land Register to cancel an entry against a Title that is not
subject to the Decree. The other objections are that; there was no Notice issued to
the Registrar in terms of Order 52, rule 2 of the Supreme Court of England before
filing of the application dated 14 July 2014; and there was no service upon Eco Bank
Limited of any order issued by the Court on 22nd September to warrant the taking
out of the contempt proceedings. That is not all; they have raised an objection based
on estoppel, for the application dated 16 July 2013 is a collateral attack on Orders
issued by the Court of Appeal and the representations made to the said Court.
10. These objections are a mix of facts and law. They are not free from and are indeed
entangled in factual details. They require much probing of evidence in order to
determine them. The fact that a person was not a party in the initial proceedings
may look very powerful, and a false impression may be created that it is a simple and
straight forward matter. But wait until you fathom that the law of contempt captures
even persons who are not parties in the suit. And that brings to bear one important
reality; that the court has to evaluate the entire circumstances under which such party
is accused of contempt; whether the person had been served with or had knowledge
of the order in question. All these endeavours involve probing of evidence and factual
details in the matter. The moment that is course of things, the objection loses the
character of a true preliminary objection and rends itself to be tried in the trial. The
issue of Notice to the Registrar inasmuch as is a legal requirement, the fact of actual
giving or service of the Notice is a factual matter which will need to be established
through evidence. The same position applies to the objection that the application
dated 16 July 2014 by the applicants is a collateral attack on the orders that were
issued by the Court of Appeal. The said Orders must be presented to this court and
arguments must be made by parties in order for the court to determine whether the
application is a collateral attack as alleged. Further on the issue of whether the Court
has jurisdiction or not to issue an Order to compel the 4th respondent to cancel
an entry against a Title not subject to the Decree is a contested issue and is tied to
allegations that the Registrar of Lands was aware of the entry of the prohibitory
order which was already entered in the title documents except that the Registrar
fraudulently decided to sign it and later on ignored its presence and ramifications
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Pleadings Without Tears- Tips in Civil Litigation 31

in registering the charge. In those circumstances, the issue stops being as simple and
clear as suggested by the 2nd respondent. It will need the careful examination and
analysis of facts and evidence to unravel and this is possible only after hearing the
application.”

1.11.3 Tips
(a) Avoid raising a preliminary objection which is not part of the pleadings.
(b) Don’t be vague-just get to the point and be precise on the objection you are raising.
(c) Raising futile preliminary objections may simply lead to delays and when the matter
succeeds on appeal you may expose your client to costs. It is necessary to advise
your client on the chances of success when raising a preliminary objection. There
are instances when the objection may be borderline and it would be in your client’s
interest to get on with the case.
(d) If you have set out the preliminary objection with precision, then you must consider
filing a formal application at the outset after close of pleadings seeking to strike
either the whole suit or part of the suit that your objection is focussed on.

1.12 The Lawyer’s Eternal Saving Grace - the Oxygen Principles

and the Inherent Power of the Court

The general rule is that the inherent powers of the court should not be invoked if
there is specific rule dealing with the issue at hand. Section 3A reads:
“3A. Saving of inherent powers of court.
Nothing in this Act shall limit or otherwise affect the inherent power of the
court to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the court.’’
The expanse of the court’s inherent power was discussed by Justice Odunga in the
case of Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi – Chairman,
Samuel Njuguna – Secretary, Joseph Kimiri – Treasurer) and others v Cabinet Secretary for
Transport and Infrastructure and 5 others. 31 The Court held:
36. It is moreover recognised that the court has inherent powers to make such orders
as may be necessary for the ends of justice. Inherent power, it must be stressed is
not donated by section 3A of the Civil Procedure Act. In Ryan Investments Ltd and
another v the United States of America [1970] EA 675 it was held that section 3A of
the Civil Procedure Act is not a provision that confers jurisdiction on the court but
simply reserves the jurisdiction which inheres in every court.The court has inherent
jurisdiction not created by legal provisions, but which only manifests the existence
of such powers.
37. Dealing with the same powers, it was held in Republic v The Public Procurement
Complaints, Review and Appeals Board and another Ex Parte Jacorossi Impresse Spa
Mombasa HCMA No. 365 of 2006 that the Court has power under its inherent
jurisdiction to make orders that may be necessary for the ends of justice and to
enable the Court maintain its character as a court of justice and that this repository
power is necessary to be there in appreciation of the fact that the law cannot make
express provisions against all inconveniences.

31 [2014] eKLR
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32 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

38. Similarly, in The Matter of the Estate of George M’mboroki Meru HCSC No. 357 of
2004, Ouko, J (as he then was) expressed himself inter alia as follows:
“It is accepted that the court retains certain intrinsic authority in the absence of
specific or alternative remedy, a residual source of power, which the court may draw
upon as necessary whenever it is just or equitable to do so, in particular to ensure
the observance of the due process of law, to prevent abuse of its process, to do justice
between the parties and to secure a fair trial between them.”
The Court of Appeal in the case of Safaricom Limited v Ocean View Beach Hotel Limited
and others32 addressed the concept of inherent jurisdiction. Justice Nyamu (J.A), in
his powerful dissenting Ruling, held that the court has jurisdiction when faced with
jurisdictional issues, including nullities. He reasoned as follows:
“The first reason why this Court cannot fold its hands and decline to intervene in the
face of a plain nullity perpetrated by the High Court staring at it, is that as the final
Court it does in my opinion, retain a “residual” “or inherent jurisdiction” in respect
of jurisdictional issues and nullities. By virtue of its position, I hold that this Court has
jurisdiction to deal with jurisdictional issues including nullities as and when raised in
the interest of the enforcement of the rule of law because, if this role is not undertaken
by the highest court, the rule of law is likely to be undermined as aggrieved parties are
unlikely to find any other avenue of redress in the courts hierarchy. Thus, I.H. Jacob, The
Inherent Jurisdiction of the Court (1770) Current Legal Problems had this to say concerning
the juridical basis of inherent jurisdiction: -
“On what basis did the superior courts exercise their powers to punish for contempt
and to prevent abuse of process by summary proceedings instead of by ordinary
course of trial and verdict? The answer is, that the jurisdiction to exercise these
powers was derived not from statute or rule of law but from the very nature of the
court as a superior court of law, and for this reason, such jurisdiction has been called
“inherent.” This description has been criticized as being “metaphysical” but I think
nevertheless that it is apt to describe the quality of this jurisdiction. For the essential
character of a superior court of law necessarily involves that it should be invested
with a power to maintain its authority and to prevent its process being obstructed and
abused. Such a power is intrinsic in a superior court; it is its very lifeblood, its very
essence, its immanent attribute. Without such a power, the court would have form
but would lack substance. The jurisdiction which is inherent in a superior court of
law is that which enables it to fulfil itself as a court of law. The juridical basis of this
jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil
the judicial function of administering justice according to law in a regular, orderly and
effective manner.”
In my view, this Court would lose both form and substance if it were to shy away from
enforcing the rule of law. It is the highest Court in the land and since the Constitution
itself turns on the axis of the rule of law it would be serious abdication to decline to
intervene.
In the circumstances of the matter before the Court, it is quite clear that the superior
court has stepped out of its jurisdiction and unless such a step is stopped, this Court’s
process is likely to be bogged down with matters which ought not to have come to it in
the first place under any of this Court’s rules. We therefore have a responsibility to make
declarations on nullities either suo moto or as and when moved by an aggrieved party as

32 [2010] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 33

in this case. In my view, the High Court should have confined itself to the issue of either
granting the interim measure or refusing to grant it without delving into the merits. The
usurpation of the arbitrator’s jurisdiction by the superior court also contravened section
17 of the Arbitration Act and for these reasons, this Court cannot, in our view, condone
this state of affairs as the final Court in the land because it we did not do so, who would?
Moreover, the superior court’s plainly illegal decision was likely in turn lead to the filing
of unmerited appeals to this Court thereby resulting in abuse of this Court’s process
because I have in this ruling also stated that, in arbitration matters all courts including this
Court’s intervention is restricted to a facilitative role as specifically provided under the
Act. Any other intervention outside the provisions of the Act is, with respect, unnecessary
baggage on this Court as well and for this reason, this Court has the inherent power
to reject the extra baggage and re-order things as provided in the applicable law. This
explains why I must not fail to invoke this power to strike out the application and to set
aside the superior court ruling and in its place give the interim measure of protection in
terms of section 17 of the Arbitration Act and at the same time direct the parties to have
recourse to the Arbitral process within a reasonable time as contemplated in sections 7
and 17 of the Arbitration Act. By dealing with the matter contrary to sections 7 and 17 of
the Arbitration Act the superior court clearly lacked jurisdiction and therefore its decision
constituted a nullity.”

1.12.1 The Overriding Objective

With the advent of the Civil Procedure Rules, 2010 and the Appellate Jurisdiction
Act, the essence of the overriding objectives [popularly referred to as “the oxygen
principles’’] were introduced as follows:

Civil Procedure Act

1A. Objective of Act

(1) The overriding objective of this Act and the rules made hereunder is to facilitate
the just, expeditious, proportionate and affordable resolution of the civil disputes
governed by the Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation
of any of its provisions, seek to give effect to the overriding objective specified in
subsection (1).
(3) A party to civil proceedings or an advocate for such a party is under a duty to
assist the Court to further the overriding objective of the Act and, to that effect,
to participate in the processes of the Court and to comply with the directions and
orders of the Court.
[Act No. 6 of 2009, Sch.]

1B. Duty of Court

(1) For the purpose of furthering the overriding objective specified in section 1A, the
Court shall handle all matters presented before it for the purpose of attaining the
following aims—
(a) the just determination of the proceedings;
(b) the efficient disposal of the business of the Court;
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34 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(c) the efficient use of the available judicial and administrative resources;
(d) the timely disposal of the proceedings, and all other proceedings in the Court,
at a cost affordable by the respective parties; and
(e) the use of suitable technology.
[Act No. 6 of 2009, Sch.]

The Appellate Jurisdiction Act

3A. Objective of Act

(1) The overriding objective of this Act and the rules made hereunder is to facilitate the
just, expeditious, proportionate and affordable resolution of the appeals governed by
the Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation
of any of its provisions, seek to give effect to the overriding objective specified in
subsection (1).
(3) An advocate in an appeal presented to the Court is under a duty to assist the Court
to further the overriding objective and, to that effect, to participate in the processes
of the Court and to comply with directions and orders of the Court.
[Act No. 6 of 2009, Sch.]

1.12.2 Various Instances Where Courts Apply the Oxygen Principles

The Court of Appeal in the case of Abok James Odera T/A A.J Odera and Associates v
John Patrick Machira T/A Machira and Co. Advocates33 went into detail to explain how
the oxygen principles are applied by the courts. The court made references to various
cases that defined the extent of the applicability of the oxygen principles as follows:
“On the applicability of the overriding objective principle in the appellate jurisdiction,
we wish to draw guidance from case law.The principle confers on the courts considerable
latitude in the exercise of its discretion in the interpretation of the law and rules made
thereunder. (See the case of City Chemist (NB1) Mohamed Kasabuli suing for and on behalf
of the Estate of Halima Wamukoya Kasabuli v Orient Commercial Bank Limited, Nairobi civil
application number 302 of 2008 (UR.199/2008); 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. (See the case of Kariuki Network Limited & another v Daly
& Figgis Advocates, Nairobi civil application number 293 of 2009); that 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
(See the case of Kariuki (Supra); 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 (See the case of Deepakc Manlal Kamami and another v Kenya Anti-
Corruption and 3 others, civil application number 152 of 2009); that 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. (See the case of Dorcas Indombi Wasike v Benson Wamalwa,Eldoret civil application
number 87 of 2004); that the overriding objective principle is intended to re-energize

33 [2013] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 35

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 thereunder are
“02” compliant (see the case of Hunter Trading Company limited v ELF Oil Kenya Limited,
Nairobi civil application number 6 of 2010 (UR) (2010); that 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 (See the case
of Caltex Oil Limited v Evanson Wanjihia, Nairobi civil application number 190 of 2009
(UR). And, lastly, that 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 (See the case of Kenya
Commercial Bank v Kenya Planters Co-operative Union Nairobi, civil application number 85
of 2010 (UR)62 of 2010.’’

1.12.3 The Position Post the 2010 Constitution – Article 159 of the
Constitution - not a Panacea for Ignoring Rules and Statutory
Constraints
Article 159 is the centrepiece when considering how judicial power is exercised. It
states:
159. Judicial authority
(1) Judicial authority is derived from the people and vests in, and shall be exercised
by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the
following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution mechanisms
shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural
technicalities; and
(e) the purpose and principles of this Constitution shall be protected and
promoted.
(3) Traditional dispute resolution mechanisms shall not be used in a way that—
(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are
repugnant to justice or morality; or
(c) is inconsistent with this Constitution or any written law.
It has become fashionable for advocates to hide behind article 159, wave it in your face
and proclaim that justice abhors technicalities.We learnt in Science that nature abhors
a vacuum but does that hold true when a pleading is substantially defective or there
has been a substantive procedural lapse?
The courts have come up with various pronouncements on article 159 that shall
now be addressed.The list is not exhaustive but merely demonstrates that a fallback on
article 159 will not always be the legal panacea one would have expected.
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36 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1.12.4 Lack of a Notice of Appeal Cannot Confer Jurisdiction on the Court

of Appeal
The Court of Appeal in the case of Nguruman Limited v Shompole Group Ranch and
another34 addressed the question of its jurisdiction to grant orders of stay of execution-
whether a stay of execution could be issued against a decree concerning which there
was no Notice of Appeal but on the basis of a Notice of Appeal issued against a
later decision in the same suit. The court considered if it had power to do so under
articles 159 and 164(3) the Constitution and the Appellate Jurisdiction Act (Chapter
9), section 3(1) and Court of Appeal Rules, rule 5(2)(b). The court dismissed the
application and held as follows:
“Questions of jurisdiction were not technicalities and it was the Notice of Appeal that
would donate jurisdiction to the Court of Appeal.The overarching principle of substantive
justice, as provided for in article 159 of the Constitution of Kenya 2010, would not allow
the Court of Appeal to ignore clear rules of procedure.
The Court of Appeal’s jurisdiction was fully circumscribed and it could not be enlarged.
Without an appeal or a Notice of Appeal, the Court lacked jurisdiction to grant any
orders. The power of the Court of Appeal, under rule 5(2)(b) of the Court of Appeal
Rules, to order a stay of execution, an injunction or a stay of further proceedings was only
exercisable where a notice of appeal had been lodged.’’
As long as there was no appeal on record, the Court’s hands were tied and it could not
under the guise of administering justice grant any order.
The grant of orders without the existence of an appeal or intended appeal would amount
to a violation of both article 164(3) of the Constitution of Kenya 2010 and section 3(1)
of the Appellate Jurisdiction Act (Chapter 9). Once the Court realized that there was no
Notice of Appeal, it ought to have struck out the application.
In the circumstances, concerning the question as to whether the Court of Appeal had
the jurisdiction to review a Court of Appeal decision, rule 57(2) of the Court of Appeal
Rules was applicable. Under that rule an order made pursuant to an application made to
the Court of Appeal could be rescinded by the Court of Appeal.’’
The importance of the Notice of Appeal was discussed by the Court of Appeal
in the case of Abok James Odera T/A A.J Odera and Associates v John Patrick Machira
T/A Machira & Co. Advocates.35 The Court held, inter alia, that the Notice of Appeal
conferred jurisdiction and that an appeal can only be against a decree or an order not
against a Judgment or ruling. The relevant part of the decision is as follows:
With regard to lack of competence or otherwise of this appeal, we wish to refer to the
case of Pepco Construction Company Limited v Carter & Sons Limited, Nairobi civil appeal
number 80 of 1979 (UR) wherein the Court of Appeal made observation that:
“A notice of appeal is what gives this court jurisdiction in any appeal. It is a primary
document in terms of rule 85(1) of the Rules. A record of appeal must contain a valid
copy of the notice of appeal. The omission to include a valid copy renders the appeal
incompetent….; the case of Joseph Limo & 86 others v Ann Merz, civil application

34 [2014] EKLR
35 [2013] EKLR
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Pleadings Without Tears- Tips in Civil Litigation 37

number 295 of 1998 Omollo, JA made observation that:-“A notice of appeal is the
document which initiates an appeal, it indicates who is aggrieved by the decision or
part of the decision of the Superior Court and is or are therefore appealing. In the case
of Parsi Anjumani v Mushin Abdulkarim Ali, Nairobi civil application 328 of 1998 (UR)
there was observation that:-“a notice of appeal is a primary document within the
meaning of rule 85(1) of the rules …; and lastly Nuru Ibrahim Amrudin v Amir Mohamed
Amir, civil appeal number 23 of 1998 (UR) the Court of Appeal ruled that “an appeal
can only be against a decree or an order not against a Judgment or ruling…”

1.12.5 The Overriding Objectives- vis a vis Article 159 of the Constitution
As set out above, both the Civil Procedure Rules and the Appellate Jurisdiction Act
introduced the concept of overriding objectives in the dispensation of justice.
The Court of Appeal in the case of Abok James Odera T/A A.J Odera and Associates v
John Patrick Machira T/A Machira and Co. Advocates36defined the goals of the overriding
objective.

Facts
The respondent’s counsel opposed the appeal on the grounds, inter alia, that the notice
of appeal on which the appeal is premised was defective; that the record of appeal
was invalid for non-inclusion of a primary document, namely, a memorandum of
appearance. Therefore, the omission was not curable under sections 3A and 3B of the
Appellate Jurisdiction Act as these have no retrospective effect to cure defects in an
appeal filed before they came into force. The Court overruled the objection to this
appeal on the grounds of incompetence and ruled that the appeal was competent and
it would proceed to dispose it off on its own merits. The relevant part of the decision
is as follows:
“On the basis of the above assessment of principles of case law, we find it perfectly in
order to invoke these principles and apply them to the rival arguments herein to breathe
life into this appeal, for purposes of ameliorating the harshness of the consequences of
the appellants’ non-compliance with this court’s directive in the ruling of 20 April 2000
and 24 May 2002, with regard to the appellants failure to cure the defect in the notice of
appeal on the basis of which the appeal is premised and secondly excuse the appellants
failure to include the memorandum of appearance, a primary document in the record of
appeal.
Our reasons for finding so, are that case law interpreting application of the overriding
objective principles to appellate litigation, illustrated above tend to indicate clearly that
these were applied in proceedings filed before sections 3A and 3B,(Supra) came into
force. On this footing they are applicable to this litigation notwithstanding that this appeal
was filed long before the said sections 3A and 3B (Supra) came into effect. A ruling in
favour of sustaining the appeal will therefore be in line with the overriding objective
principle because if the appeal is struck out on account of incompetence, the striking
out order will not finally determine the issues in controversy as between the parties. It
will simply restore the parties to the pre-appeal stage before the alleged offending notice

36 supra
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38 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

of appeal was filed. The net effect of this restoration will be that the appellant will be at
liberty to reinitiate the appellate process afresh, premised on a Form D compliant notice
of appeal. Such an action is likely to lead to a delay in the disposal of the real issues in
controversy as between the appellant and the respondent. There will also be considerable
costs to be borne by both parties both for these proceedings and the proceedings to be
reinitiated. This will also result in the clogging of the justice system as the reinitiated
appeal will have to be re-presented to this same Court based on the same set of facts and
as soon as it is presented it will start competing for time for disposal.
It is our considered opinion that, such a move will not guarantee justice and fairness to
the parties on equal arms (footing) considering that the defect in the notice of appeal is
not misleading as found by this Court in the two rulings of 20 April 2000 and 24 May
2002. This is borne out by the fact that the respondent has not pointed out any prejudice
or injustice he may have suffered as a result of the said defect in the notice of appeal, as the
case the respondent is expected to meet herein, is clearly set out in the grounds of appeal
contained in the memorandum of appeal contained in the record of appeal, served on the
respondent and to which the respondent has responded ably and thoroughly both in their
written as well as oral submissions to this court.
As for lack of inclusion of the memorandum of appearance in the record of appeal,
though we agree that this is the correct position, we note that the respondent is however
raising this issue belatedly for the first time during the submissions at the hearing of this
appeal. We also do not see how the lack of inclusion of the memorandum of appearance
in the record of appeal can be used to fault the entire record of appeal considering that
entry of appearance or lack of it was not one of the issues in controversy in the High
Court nor in this appeal, as neither the High Court nor this Court was and or has been
invited to make a determination on the appellant’s appearance filed in the High Court. In
the premises, we find that that defect is not fatal as it does not go to the root of the issues
in controversy in this appeal. More so when it is not being disputed that the appellant
entered appearance to the respondents’ claim in HCCC No. 183 of 1998. We think such
an omission cannot be held to be so fundamental as to oust and or override the need to
do justice to the parties by disposing off this appeal on its merits. We therefore overrule
the objection to this appeal on the grounds of incompetence and rule that the appeal is
competent and we shall proceed to dispose it off on its own merits.’’

1.12.6 Duty of an Advocate in Furthering the Overriding Objectives by

Getting on with the Case
The very essence of filing a suit is to expedite its conclusion in a just manner. Delay
defeats equity and the very spirit of the Constitution and Overriding Objectives.
The Court of Appeal in the case of Mugo Njogu v Mary Githinji37determined an
application filed in the Court of Appeal seeking extension of time to file a Notice
of Appeal. There was a delay of 17 months in making the application. The court
dismissed the application and held
‘With the overriding objective in place, it is no longer acceptable in my view for the court
to automatically excuse the mistakes and lapses of counsel. Counsel have a role and duty
to assist the Court in realizing the overriding objective and incompetency of lapses of

37 [2010] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 39

counsel derogate from the objective.... Thus the unexplained delay in this particular case
does not in my view assist in the just, expeditious, proportionate and affordable resolution
in this appeal...’

Bi-mach Engineers Limited v James Kahoro Mwangi.38

The application sought extension of time to appeal against the judgment of the court.
The court dismissed the application and held, inter alia
‘The applicant had a duty to pursue his advocates to find out the position on the litigation
but there is no disclosure that the applicant bothered to follow up the matter with his
erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform
as if there is no duty on the client to pursue his matter. If the advocate was simply
guilty of inaction, that is not an excusable mistake which the court may consider with
some sympathy. The client has a remedy against such advocate. There must be an end to
litigation and the 12-year delay in concluding the litigation is sufficiently prejudicial to
the respondent.’

1.12.7 Article 159 will not shield one from indolence and sloppiness
With time on account of pressure of work, we tend to overlook certain procedural
requirements that are fundamental. We later rue the oversight and then whimper that
substantive justice cannot be sacrificed at the altar of procedural technicalities.
Take the example of a surgeon. Could he go ahead and operate straightaway
without first ensuring that the patient’s medical history is before him, verify that his
vital signs can sustain the trauma of surgery and contingency plans are set out in case
of any emergency? We must start developing the mentality of legal surgeons. Always
listen to your sixth sense and when in doubt consult a colleague. Even if a client comes
to you with an urgent application, you will have time to ensure that the basic precepts
of substantive and procedural law are applied.
Floris Pierro and another v Giancarlo Falasconi (as the administrator of the estate of
Santuzza Billioti alias Mei Santuzza)39was the case where the Court of Appeal struck
out an appeal where the appellant, not having originally included the certified copy of
the Order, filed it in a Supplementary Record outside the 15-day window. The court
proceeded to observe as follows:
“Article 159 of the Constitution of Kenya, enjoins courts to administer justice without
undue regard to procedural technicality. Failure to include in the record of appeal a
primary document or to formally apply to court for leave to file a supplementary record
to include the same cannot be wished away as a procedural technicality. Otherwise
there will be no orderly conduct of business in this Court. Nor was that article in the
Constitution meant to be a panacea for advocates negligence or casual approach in
dealing with appeals to this Court. Nor can it be said that such blatant omissions should
be relegated to the periphery in pursuit of the Overriding Objective Principle under
sections 1A and 1B of the Civil Procedure Act and sections 3A and 3B of the Appellate
Jurisdiction Act. Similarly, these provisions were not meant or aimed at camouflaging the

38 [2011] eKLR
39 [2014] eKLR
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40 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

indolence and or negligence of parties to the appeal. Neither were they meant to throw
out of the window the well-known rules of this Court.’’
The Court of Appeal in the case of Telkom Kenya Limited v John Ochanda (Suing on his
own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited)40 reiterated
that rules of procedure had to be followed.
“The respondents are seeking umbrage under article 159(2) (d) of the Constitution
which provides that justice shall be administered without undue regard to procedural
technicalities. It does not avail them. We are content to state that the constitutional
provision is not meant to whitewash every procedural failing and it is not meant to place
procedural rules at naught. In fact, what has befallen the respondents is proof, if any
were needed, that there is great utility in complying with the rules of procedure. Such
compliance is neither anathema nor antithetical to the attainment of substantive justice.
As has been said before, the rules serve as handmaidens of the lady Justice.”

1.12.8 Disobedience of Court Orders will not be Cured by the Oxygen

Principles
The celebrated case of Hunker Trading Company Limited v Elf Oil Kenya Limited41was the
first to consider the import of the oxygen principles. The Court of Appeal considered
the application unique at the time because it was the first application which was
grounded on the new provisions of the Appellate Jurisdiction Act, namely, sections 3A
and 3B of the Act in addition to being brought under rules 5(2)(b) and 42 of the Court
of Appeal Rules.

Facts
Following the entry of judgment by Justice Lessit against the defendant for KShs
10,031,358/15 with interest, the defendant filed a notice of appeal and later formally
applied before the High Court for a stay of execution of the judgment and decree
pending the hearing of the intended appeal.
Justice Koome (as she then was) granted a stay of execution on condition that
the defendant deposited a sum of Kenya shillings 5 million in an interest earning
account to be opened in the joint names of the plaintiff ’s advocates and the defendants
advocate within 30 days. The court further ordered that failure to comply with the
above condition, the order of stay would lapse. Without filing a notice of appeal from
the Ruling granting a stay, the defendant subsequently filed an application in the
Court of Appeal based on the Notice of Appeal in respect of the judgment of Justice
Lessit. The Court of Appeal dismissed the application mainly for disobedience of a
court order that was intended for the same purposes being pursued by the applicant
in the Court of Appeal. The Court held as follows:
“As stated above, no notice of appeal has been lodged in this Court against the order
of stay of execution on terms given by (Koome, J.) which order although granted on
different grounds to those applicable to an application for stay of execution in this Court
and the order has since lapsed, this is a factor which this Court cannot fail to take into

40 [2014] eKLR
41 [2010] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 41

account because the non-compliance with the order has a bearing on the provisions of
section 3A of the Appellate Jurisdiction Act. Moreover, the disobedience of the order in
our view has an impact on the management of the Court resources. Sections 3A and 3B
of the Appellate Jurisdiction Act and also in the context of the High Court sections 1A
and 1B of the Civil Procedure Act, have in the recent past generated what appears to have
the makings of enlightened jurisprudence touching on the management of civil cases and
appeals and therefore as the sections have been extensively reproduced in many recent
decisions we need not reproduce them here except the material part in the Act because
the two sets of sections are in pari materia. Section 1A (3) of the Civil Procedure Act reads:
“A party to civil proceedings, or an advocate for such party is under a duty to assist the
Court to further the overriding objective of the Act and, to that effect, to participate
in the processes of the Court and to comply with the direction and, orders of the
Court.”
As the applicant has admitted having failed to comply with the order of stay by (Koome,
J.) we find that it is in breach of section 1A (3) of the Civil Procedure Act and also section
3A (3) of the Appellate Jurisdiction Act. We do not think that the fact that the order has
since lapsed has in any way eroded the relevance of the disobedience of the order to the
operation of the overriding objective. The thrust of the applicant’s application to this
Court under section 3A is substantially to seek similar orders to those he was granted
in the superior court and failed to obey. Under section 1A (3) the applicant has a duty
to obey all court processes and orders. In our opinion, coming to us having abused the
process in the superior court violates the overriding objective (which in another case
has been baptized the (double “O” principle”) and in this case, we have chosen to call it
(“the O2 or the oxygen principle”) because it is intended to re-energise the processes of
the courts and to encourage good management of cases and appeals. The violation arises
from the fact that this Court is again being asked to cover almost the same points although
using different rules and this is a waste or misapplication of this Court’s resources (time)
and also an abuse of its process. The fact that the notice of appeal under rules 5(2)(b) and
74 is directed at the judgment of (Lesiit, J.), would still not take the matter outside the
provisions of section 3A which is a provision of an Act of Parliament.
As the applicant did not appeal against the order of stay on terms and has not challenged
it in any way, for example, demonstrating that it was onerous or unjust but just ignored
the order, in our view, the application falls outside the provisions of rule 5(2)(b) and
section 3A and is therefore incompetent. The order of stay of execution on terms was
subsequent to the decree. In the circumstances, we find that the exercise by us of any
original jurisdiction would be inappropriate where, as in this case, the lower court has
exercised a parallel jurisdiction, it must be demonstrated to this Court that the jurisdiction
of the lower court has not been properly exercised, otherwise we would be encouraging
duplication of effort and poor management of the available resources.
The applicant is seeking the same orders it declined to obey. We think that we have the
jurisdiction to stop it in its tracks in order to attain or further the “O2” principle. We
would act unjustly if we were to allow it another chance in this Court to defeat the cause
of justice by failing to obey an important order of the superior court.
Perhaps, it is appropriate for us to observe that litigants and their advocates should note
that in “O2 principle”, they have a powerful ally where they are advancing its aims and a
powerful adversary where they are bent on subverting its aims. As stated severally now, in
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42 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

some of our recent decisions the “O2 principle” is the hub upon which the objectives of
the two Acts, their provisions and the rules made thereunder turn. It is a requirement of
“O2 principle” that the exercise of any power under the Act or the rules must be exercised
in line with its principal aims. Similarly, the interpretation of any provision in the Acts and
the rules has to be “O2” compliant.
In the case of Mradula Suresh Kantaria v Suresh Nanallal Kapnaria, civil appeal number 277
of 2005 (unreported) this Court observed:
“In this regard we believe one of the principal purposes of the double “OO principle”
is to enable the Court to take case management principles to the center of the Court
process in each case coming before it so as to conduct the proceedings in a manner
which makes the attainment of justice fair, quick and cheap.”
The applicant cannot be allowed to invoke the “O2 principle” and at the same time abuse
it at will as has happened in this matter.
Again in this Court’s decision which was cited by the applicant’s counsel, namely, Caltex
Oil Limited v Evanson Wanjihia, Nairobi civil application number 190 of 2009 (unreported)
this Court delivered itself as under: -
“Before we set out the terms of the conditional stay it is important to state that in
our view, the powers of this Court have recently been enhanced by the incorporation
of an overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act,
Chapter 9 and sections 1A and 1B of the Civil Procedure Act, Chapter 21 following
the amendment of the Statute Law (Miscellaneous Amendment Act No. 6 of 2009).
The overriding objective provides that the purpose of the two Acts and the rule
is to facilitate the just, expeditious, proportionate and affordable resolution of civil
disputes.Although the overriding objective has several aims the principal aim is for the
Court to act justly in every situation either when interpreting the law or exercising
its power. The Court has therefore been given greater latitude to overcome any past
technicalities which might hinder the attainment of the overriding objective.”
As stated above, it would be unjust for the applicant to violate the “O2 principle” in
the superior court and again purport to invoke it in this Court.
In conclusion, we wish to observe that the “O2 principle” which must of necessity
turn on the facts of each case is double faced and for litigants to thrive under its
shadow they must place themselves on the “right side”. In the circumstances of this
matter, the applicant is clearly on the “wrong side” and for this reason the principle
must work against it.
The advent of the “O2 principle” in our opinion, ushers in a new management culture of
cases and appeals in a manner aimed at achieving the just determination of the proceedings;
ensures the efficient use of the available judicial and administrative resources of the courts;
and results in the timely disposal of the proceedings at a cost affordable by the respective
parties. That culture must include where appropriate the use of suitable technology. It
follows therefore that all provisions and rules in the relevant Acts must be “O2, compliant
because they exist for no other purpose.The “O2 principle” poses a great challenge to the
courts in both the exercise of the powers conferred on them by the two Acts and rules
and in interpreting them in a manner that best promotes good management practices
in all the processes of the delivery of justice. In our view this challenge may involve the
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Pleadings Without Tears- Tips in Civil Litigation 43

use of an appropriate summary procedure where it was not previously provided for in
the rules but the circumstances of the case call for it so that the ends of justice are met.
It may also entail our redesigning approaches to the management of the court processes
so that finality and justice are attained and decisions that ought to be made today are not
postponed to another day.
The “O2 principle” is certainly not going to be a magic potion capable of solving all
our problems in the civil justice system. Instead it is a challenge to every court in every
matter that comes up before it. The best design for each matter will be determined on a
case to case basis; and above all the attainment of the objective at least in the short term
will depend on the skills, innovativeness and the commitment of the courts including the
Rules Committee, which in our view has a special role in assisting the courts attain the
objective by, for example, undertaking a continuous review of the rules so as to retain
those that would serve the interests of the objective and shed off those that hinder the
objective. In the long term, we believe that best practices and precedents will emerge for
use and improvement by future generations.
It seems to us that in the exercise of our powers under the “O2 principle,” what we
need to guard against is any arbitrariness and uncertainties. For that reason, we must
insist on full compliance with past rules and precedents which are “O2 compliant” so
as to maintain consistency and certainty. We think that the exercise of the power has
to be guided by a sound judicial foundation in terms of the reasons for the exercise of
the power. If improperly invoked, the “O2 principle” could easily become an unruly
horse. For this reason, we would like to reiterate here what this Court observed in the
case of Mradura Suresh Kantaria v Suresh Nanalal Kantaria (supra):
“While the enactment of the of the “double OO principle” is a reflection of the
central importance the court must attach to case management in the administration
of justice we wholly endorse the holding in the Australian case of Puruse Pty Limited
v Council of The City of Sydney [2007] Nswlec 163 where the Court underscored that
in exercising the power to give effect to the principle, it must do so judicially and
with proper and explicable foundation.”
In the Kantaria case we observed:
“The overriding principle will no doubt serve us well but it is important to point out
that it is not going to be the panacea for all ills and in every situation. A foundation
for its application must be properly laid and the benefits of its application judicially
ascertained.”
We trust that in the matter before us we have walked the talk.   Disobedience of a
court order that was intended for the same purposes being pursued by the applicant
in this Court is a clear violation of the “O2 principle” as demonstrated above and we
hereby invoke the power vested in us under section 3A to dismiss the application.’’

1.12.9 Tips
There are, however, instances when the court’s inherent jurisdiction will be invoked.
However, bear in mind that disobedience of a court order would be a violation of the
“O2 principle”.
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44 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

When lodging an application for stay in the Court of Appeal, always ensure that
you are relying on the Notice of Appeal from the decision that you seek to stay.
The following are summaries of when the inherent powers are invoked to aid the
litigant.42 The summaries are not exhaustive.
(a) To stay proceedings where the ends of justice so required or to prevent an abuse of
the process of the court; but where the circumstances of the particular case do not
call for such exercise, the court will not exercise this power.43
(b) To stay execution. The court had inherent power, ex debito justitiae, to order a stay
of execution pending the determination of an application for leave to appeal out
of time and subsequent determination of the appeal.44 The writer has used this
effectively when a record of appeal was struck out. Another instance is when the stay
of execution had expired while the application for stay in the Court of Appeal had
been listed for hearing outside the expired stay period.
(c) Where a judgment is not regularly obtained the power to set it aside may stem from
the court’s inherent jurisdiction.
(d) A mandatory injunction can only be brought under section 3A and not Order 39.45
(e) The inherent powers will be used when lifting the corporate veil at the execution
stage.46

1.13 Admissions in Pleadings - The Necessity for Precision and

Clarity in Pleadings
At the stage of filing suit, be precise and set out the particulars of admission of the debt.
This particularity in pleading will assist you when filing an application for judgment
on admission. Order 13, rules 1 and 2 of the Civil Procedure Rules deals with the
aspect of admissions and states:

Order 13 – Admissions
1. Notice of admission of case [Order 13, rule 1.]
Any party to a suit may give notice by his pleading, or otherwise in writing, that he
admits the truth of the whole or part of the case of any other party.
2. Judgment on admissions [Order 13, rule 2.]
Any party may at any stage of a suit, where admission of facts has been made, either
on the pleadings or otherwise, apply to the court for such judgment or order as upon
such admissions he may be entitled to, without waiting for the determination of any
other question between the parties; and the court may upon such application make
such order, or give such judgment, as the court may think just.

42 As extracted from Judicial Hints on Civil Procedure Volume 1 by R Kuloba 1984 at pages 35-36.
43 Sir Newham Worley,V-P in Jasdva Karsan v Harnam Singh Bhogal (1953) 20 EACA 74 AT 76. See also Nganga v
Kimani [1969] EA 67. The court held that the court had inherent power to grant a stay of execution pending
an appeal from a refusal to set aside an ex parte decree.
44 Lucie-Smith, Ag CJ in Olivia da Ritta Siqueira E Facho and another v Siquiera, Rodrigues and Ribero (1933) 15
KLR 34 at 36.
45 See below on the discussion on injunctions.
46 Infra at page 17.
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Pleadings Without Tears- Tips in Civil Litigation 45

The case of Herta Elizabeth Charlotte Nazari v Herta Elizabeth Charlotte Nazari47 gave an
excellent analysis of what the courts will take into account when entering judgment
on admission. The court emphasized that pleadings should be:
‘precise, models of clarity and simplicity of expression.
The judge has to understand them in order to understand the case.
Parties should shun long repetitive argumentative averments most of which are
suitable subjects for evidence, and argumentative grounds of appeal, only cause
confusion. They disincline a judge and lead him to say what the learned Judge
understandably said towards the end of his ruling.’

Facts
The plaintiffs filed their suit against the defendant in which they claimed specific
performance of the agreement for sale of the property together with several other
reliefs. The defence contained averments which said that negotiations took place
for sale of the property but no final binding agreement was concluded between the
parties. Alternatively, if any such agreement was concluded the same was subject to
conditions that were unfulfilled. The plaintiffs filed an application for judgment to be
entered for them and against the defendant pursuant to Order XII, rule 6 for specific
performance of the agreement and conveyance of the suit property to them upon the
grounds that sufficient admission of the facts had been made in letters to be found in
an attached bundle of documents and in a draft conveyance duly signed as approved
by the defendant’s advocate which entitled the plaintiffs to immediate judgment to
the extent then sought by them. The application was rejected by the High Court
leading to an appeal where the Court of Appeal allowed the appeal. The late Justice
of Appeal Madan (as he then was) considered the test for granting judgment based on
admissions. He held as thus:
“For the purpose of Order XII, rule 6 admissions can be express or implied either on the
pleadings or otherwise, e.g. in correspondence. Admissions have to be plain and obvious,
as plain as a pikestaff and clearly readable because they may result in judgment being
entered. They must be obvious on the face of them without requiring a magnifying glass
to ascertain their meaning. Much depends upon the language used. The admissions must
leave no room for doubt that the parties passed out of the stage of negotiations on to a
definite contract. It matters not if the situation is arguable, even if there is a substantial
argument, it is an ingredient of jurisprudence, provided that a plain and obvious case
is established upon admissions by analysis. Indeed, there is no other way, and analysis
is unavoidable to determine whether admission of fact had been made wither on the
pleadings or otherwise to give such judgment as upon such admissions any party may
be entitled to without waiting for the determination of any other question between the
parties. In considering the matter, the judge must neither become disinclined nor lose
himself in the jungle of words even when faced with a plaint such as the one in this case.
To analyse pleadings, to read correspondence and to apply the relevant law is a normal
function performed by judges which has become established routine in the courts. We
must say firmly that if a judge does not do so, or refuses to do so, he fails to give effect
to the provisions of the established law by which a legal right is enforced. If he allows or
refuses an application after having done so that is another matter. In a case under Order
XII, rule 6 he had then exercised his discretion properly either way. If upon a purposive

47 [1984] eKLR
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46 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

interpretation of either clearly written or clearly implied, or both, admissions of fact the
case is plain and obvious there is no room for discretion to let the matter go to trial for
then nothing is to be gained by having a trial.The court may not exercise its discretion in
a manner which renders nugatory an express provision of the law. “
The best exposition of rule 6 which I have met so far comes from Roskill, L.J. in a case
in which the order ought to have been refused, i.e. in Technistudy v Kelland [1976] 1 WLR
1042 at page 1046 where he said:
The learned Judge said “in this application on a summons for directions Mr. D.N. Khanna
in a convoluted and complex sentence 2 1/2 pages in length seeks judgment on admissions
(without waiting for determination of any other question between the parties) pursuant
to Order XII, rule 6 for specific performance of an agreement for sale, damages for delay
and various other reliefs”. It was something like what Geoffrey Lane, L.J. felt in Technistudy
v Kelland (supra) at page 1046: i.e. “the pleadings are masterpieces of obscurity”. The
memorandum of appeal in this court is a mass of jumbled conundrums which runs into
thirty grounds of appeal, and it is ten pages in length.
Pleadings should be precise, models of clarity and simplicity of expression. The judge
has to understand them in order to understand the case. Long repetitive argumentative
averments most of which are suitable subjects for evidence, and argumentative grounds of
appeal, only cause confusion.They disincline a Judge and lead him to say what the learned
Judge understandably said towards the end of his ruling.’’
Justice Chesoni (AG. Judge of Appeal) gave another excellent account of the test for
judgment on admission. He held:
In Gilbert v Smith, (1976) 2 C.D. 686 at paragraphs 688 – 689 Melishih, L.J. referring to
an equivalent English rule said: -
“I think that rule was framed for the express purpose, that if there was no dispute between
the parties, and if there was on the pleadings such an admission as to make it plain that
the plaintiff was entitled to a particular order, he should be able to obtain that order at
once upon motion. It must, however, be such an admission of facts as would show that the
plaintiff is clearly entitled to the order asked for, whether it be in the nature of a decree, or
a judgment, or anything else. The rule was not meant to apply when there is any serious
question of law to be argued. But if there is an admission on the pleadings which clearly
entitled the plaintiff to an order, to wait but might at once obtain any order which could
have been on an original hearing of the action.”
I agree with the position as stated in that case which also appears at page 856 in Mulla on
the Code of Civil Procedure Act, ibid. An admission is clear if the answer by a bystander
to the question whether there was admission of facts would be “of course there was.” In
Kiprotich v Gathua and others, [1976] K.L.R. 87 at page 90 the former Court of Appeal for
Eastern Africa said:
“… the jurisdiction to award judgment on admissions resulting from failure to reply
to a counterclaim should only be exercised in the clearest of cases.”
The principle is the same when considering an application under Order XII, rule 6
for judgment on admissions arising in any form.
“Admissions of fact under Order XII, rule 6 need not be on the pleadings.They may be in
correspondence or documents which are admitted or they may even be oral.The rule uses
the words “or otherwise” which are words of general application and are wide enough
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Pleadings Without Tears- Tips in Civil Litigation 47

to include admissions made through letter, affidavits and other admitted documents and
proved oral admissions.
The rule empowers the court to make such order, or give such judgment, as it (court)
may think just. It is settled that a judgment on admissions is in the discretion of the court
and not a matter of right: see Mulla on Code of Civil Procedure ibid page 854. The
court’s discretion in the matter is unfettered, but as it was said in Kiprotich v Gathua and
others (supra at page 92) that discretion must be exercised judicially. As the application in
this appeal involved an exercise of discretion by the learned Judge this court should not,
on appeal, interfere with the exercise of that discretion unless this court is satisfied that
either –
(a) he misdirected himself in some matter and as a result arrived at a wrong decision,
or
(b) it is manifest from the case as a whole that the learned Judge was clearly wrong in
the exercise of his discretion and that as a result there has been injustice –
see Mbogo and another v Shah, [1968] E.A. 93 and Kiprotich v Gathua and others supra at
page 91 Letter H. In my opinion failure to direct oneself on some relevant matters which
results in arriving at a wrong decision is the same as misdirection which produces the
same result.
Having set out in the preceding paragraphs the law relating to obtaining judgment on
admissions under Order XII, rule 6 I should now proceed to look for any admissions on
the pleadings and otherwise. In the latter case I shall consider the admitted documents
which included the letters exchanged between the parties, receipts, draft transfer, affidavits
and any proven verbal admissions. For the appellants to succeed the admissions must
relate to or be of a binding contract capable of being enforced by an order for specific
performance, which is the remedy sought.’’

1.13.1 An Allegation of Fact Unless Traversed is Admitted

Order 6, rule 9(3) of the Civil Procedure Rules provides:
“Subject to subrule (4), every allegation of fact made in a plaint or counterclaim which
the party on whom it is served does not intend to admit shall be specifically traversed by
him in his defence to counterclaim; and a general denial of such allegations, or a general
statement of non-admission of them, shall not be a sufficient traverse of them.”
Justice Chesoni (AG. Judge of Appeal) in the Herta Elizabeth Charlotte Nazari v Herta
Elizabeth Charlotte Nazari case [supra] considered the duty of each party in a suit to
deal specifically with every allegation of fact the truth of which he does not admit.
The judge held:
“Order XII, rule 6 provides as follows: - “6. Any party may at any stage of a suit, where
admission of facts has been made, either on the pleadings or otherwise, apply to the court
for such judgment or order as upon such admissions he may be entitled to, without
waiting for the determination and the court may upon such application make such order,
or give such judgment, as the court may think just.”
This rule is in all material respects similar to rule 6 of Order XII of the Code of Civil
Procedure, 1908 of India, which was a reproduction Order 32, rule 6 of the English Rules
of Supreme Court. The new English provision is now Order 27, rule 3. The rule enables
either party to get rid of so much of the action as to which there is no controversy: see
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48 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Throrpt v Holdsworth, (1976) 3 C.D 637 at page 649 and Mulla on the Code of Civil Procedure
Act V of 1908, 13th Edition Volume 1 page 854. Rule 9(1) (3) of Order VI defines what
admitted facts in a pleading are. That rule says this:
“9(1) ………., any allegation of fact made by a party in his pleading shall be deemed to
be admitted by the opposite party unless it is traversed by that party in his pleading or
a joinder of issue under rule 10 operates as a denial of it.” www.kenyalawreports.or.ke
(3) …….., every allegation of fact made in a plaint or counterclaim which the party on
whom it is served does not intend to admit shall be specifically traversed by him in his
defence or defence to counterclaim; and a general denial of such allegations, or a general
statement of non-admission of them, shall not be sufficient traverse of them.”
Each party is, therefore, required by the foregoing rules to deal specifically with every
allegation of fact the truth of which he does not admit. Rule 9(2) requires him to make his
traverse by a denial e.g. “I deny a statement of non-admission e.g.: I do not admit”, either
expressly or by necessary implication. The court should in an application for judgment
of denials or no definite refusals to admit. The only exception to the resumption that
an allegation of fact made by a party in his pleadings which is not traversed is admitted
is where the allegation is that a party has suffered damage and the amount of damages
which if not specifically admitted is deemed to have been traversed is admitted is where
the allegation is that a party has suffered damage and the amount of damages which
if not specifically admitted is deemed to have been traversed (O.VI rule 9(4)). Express
admissions need no further explanation as they are either admitted in the pleadings or in
answer to interrogations (Order X, rule 7 and 8). Implied admissions are admission which
are inferred from the pleadings as a result of the form of pleading adopted (MULLA,
ibid refers to the latter admissions as “constructive admissions” – page 855). For example,
where a defendant fails to specifically deal with an allegation of fact in the plaint the truth
of which he does not admit there may be necessary implication may also arise where a
defendant denies an allegation in the plaint evasively. Nevertheless, the admissions must be
clear – Ellis v Allen, (1914) 1 Ch. At page 909; Ash v Hutchison and Co. (Publisher), (1936)
Ch. 503 and Technistudy v Kelland, [1976] 3 All E.R. 632, C.A. At page 856 Mulla on the
Code of Civil Procedure ibid, says:
“An order on admissions on the pleadings will not be made, unless the admissions are
clear and unequivocal.”
In the case of Pharmaceutical Manufacturing Co. v Novelty Manufacturing Ltd48 the court
reiterated the need for advocates to either expressly admit or deny material allegations
of fact. The Court held as follows:
“As the defence did not sufficiently traverse the allegations of fact made by the plaintiff
on the registered trade mark, its manufacture and distribution, the reputation its product
enjoyed and the manner in which it was marketed, by dint of Order VI, rule 9(1) and (3)
of the Civil Procedure Rules those allegations were deemed admitted.”
One must either admit or deny every material allegation of fact in the pleading of his
opponent and he must make it absolutely clear which facts he admits and which he
denies. Care must be therefore taken to deal specifically with every material allegation of
fact in a claim or counterclaim. It is in the power of the party either to admit or to deny
each allegation in his opponent’s plea, as he thinks fit. If he decides to deny, he must do

48 [2001]2 EA 521
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Pleadings Without Tears- Tips in Civil Litigation 49

so clearly and explicitly. Any ambiguous phrase will be construed into an admission of it.
If the judge does not find in the pleading a specific denial or a definite refusal to admit,
there is an end of the matter; the fact stands admitted. Moreover, it looks weak to deny
everything in your opponent’s pleading. It suggests that you have no substantial defence
to it.49

1.13.2 Tips
(a) Remember to take care and deal specifically with every material allegation of fact
in a claim or counterclaim.
(b) Do not deny everything in your opponent’s pleading for the sake of mere denial.
(c) To succeed in an application for judgement on admission make sure that your client
has documents that relate to or be of a binding contract capable of being enforced
by an order for specific performance.
(d) Many a times admissions have been made by a party prior to the filing of the suit.
It is a good practice to always advise clients in the ordinary course of business to:
(i) Ensure that they obtain written admissions of debt from the customer/client.
(ii) Keep a record of all admissions made for purposes of filing suit in the event
the customer/client defaults and refuses to pay the debt.
(iii) Follow up all meetings with the customer/client with an email or letter
to confirm the date of the meeting, the matters discussed and set out any
admissions made. This communication should go out within 24 hours.

1.14 Arrest A Judgment or Ruling

In certain instances, after parties have closed their arguments and the court reserves a
ruling date, a party later comes across a fundamental point of law that may materially
affect the outcome of the court’s decision. There have been instances where the
court makes an erroneous decision simply because neither the court nor the parties’
advocates were aware of a simple point of law that was critical in determining the
main issue in controversy. This could easily have been cured if a party discovers the
mistake and files an urgent application to arrest the judgment.
The Zambian case of Chilanga David Mwenda and others v Commissioner of Lands
and others50 is where the court held that there was jurisdiction in both civil and criminal
matters to arrest a judgment.The arrest of judgment is an act of staying a judgment or
refusing to enter it because of some defect in the record of the case.

Facts
The 3rd defendant’s counsel applied under Order 35, rule 2 of RSC 1999 to the arrest
judgment scheduled to be delivered on 22 February 2013. When the matter came up
for hearing on 15 January 2013, the plaintiffs’ counsel raised a preliminary point of law.

49 Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice 21st Edition 1975
at pages 126 to 128 makes excellent reading on this point.
50 2009/HK/569 High Court at the Kitwe District Registry http://www.zambialii.org/zm/judgment/high-
court/2013/3/11.%20Chilangwa%20David%20Mwenda%20-%20Ruling.docx
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50 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

He argued that the application was misconceived in that under Order 35, rule 2 there
was no such procedure in a civil action to arrest delivery of judgment.
Justice Kaoma dismissed the application for having been brought under the wrong
provisions of law but agreed that the court had jurisdiction in civil matters to arrest a
judgment. The court held as follows:
“Two questions must be decided. The first is whether there is a judgment in this matter
which the 3rd defendant seeks to arrest. The second is whether arrest of judgment is
available in civil proceedings in Zambia. In the White Book no meaning is assigned to
the word “judgment.” Section 2 of the High Court Act, Chapter 27, simply states that
“judgment” includes a decree. Section 2 of the Supreme Court Act, Chapter 25, states
that “judgment” includes decree, order, conviction, sentence and decision. Black’s Law
Dictionary, 8th Edition, Bryan A. Garner, Editor-in-Chief defines judgment, inter alia, as a
court’s final determination of the rights and obligations of the parties in a case. It includes
an equitable decree and any order from which an appeal lies. In simple law terms a
judgment is the final court decree or order given by the Judge based on all the facts ad
evidence presented by the parties that resolves all the contested issues and terminates the
law suit and signifies the end of the court’s jurisdiction in the case.
A decree is the judgment of a court of equity, and is, to most intents and purposes, the
same as a judgment of a court of common law. It is also a court’s final judgment or any
order of a court. An order is defined as a written direction or a command delivered by a
court or judge. It embraces final decrees as well as interlocutory directions or commands.
Verdict is defined as the finding or decision of a jury on the factual issues of the case, but
in a non-jury trial, a judge’s resolution of the issues of a case.
In this case when Mr. Chalenga said that there is no judgment yet delivered by this Court,
he simply means the final decision that should resolve the contested issues and terminate
the action or the decision that states who wins the case and what remedies the winner is
awarded. Counsel is right that there is no such judgment in this case.
However, there is an order or decision made by this Court on 12 December 2012. The
order was couched in the following terms:
“Since the 3rd defendant has failed to attend proceedings again and there is no reason
or explanation advanced to this Court, I deem that the 3rd defendant does not wish to
adduce any evidence in defence and that it has closed its case. I shall proceed to render
judgment on the evidence on record.”
This was the order made in the absence of the 3rd defendant at the trial which under
Order 35 rule 2, RSC 1999 and Order 35, rule 5 High Court Rules may be set aside
on application on such terms as the court thinks just. However, this is not the order
that counsel for the 3rd defendant seeks to arrest. Counsel seeks to arrest the delivery
of the final judgment on the grounds set out in the affidavit in support. In paras 4 to 7
of the said affidavit Mrs. Kaela has deposed that due to administrative inadequacies of
the 3rd defendant, coupled with the fact that she was recently retained, the matter was
not brought to her attention in time; that she only learnt after the Court had already
arisen that the matter was reserved for final judgment; and that the Court in its inherent
jurisdiction has power to order that the matter be re-opened so as to enable the 3rd
defendant be heard during trial.
This brings me to the second question of whether arrest of judgment is available in civil
proceedings. Black’s law Dictionary defines arrest of judgment as the staying of a judgment
after its entry, especially a court’s refusal to render or enforce a judgment because of a
defect apparent from the record. It is stated at page 117 that at common law, courts have
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Pleadings Without Tears- Tips in Civil Litigation 51

the power to arrest judgment for intrinsic causes appearing on the record, as when the
verdict differs materially from the pleadings or when the case alleged in the pleadings
is legally insufficient. It is further stated that today this type of defect must typically be
objected to before trial or before judgment is entered, so that the motion in arrest of
judgment has been largely superseded.The Free Legal Dictionary defines arrest of judgment
as the postponement or stay of an official decision of a court, or the refusal to render
such a determination, after a verdict has been reached in an action at law or a criminal
prosecution, because some defect appears on the face of the record, that if a decision is
made, would make it erroneous or reversible. In criminal proceedings, a defendant must
make a motion for arrest of judgment when the indictment or information fails to charge
the accused with an offence or if the court lacks jurisdiction over the offence charged. In
arrest of judgment, the court withholds the pronouncement of the judgment, upon the
application of a party to the dispute who claims to prove a material error in the record or
trial, which can make the entire proceeding invalid.
I quite agree with Mr. Chalenga that the phrase “arrest of judgment” is not used in
Order 35, rule 2, RSC or Order 35, rule 5 of the High Court Rules, nor does it appear
anywhere in the White Book or in the High Court Act. However, section 298 (1) of the
Criminal Procedure Code, Chapter 88 provides for arrest of judgment by the accused at
any time before sentence, whether on his plea of guilty or otherwise, on the ground that
the information does not, after any amendment which the court is willing and has power
to make, state any offence. In an article titled “Arrest of Judgment Whether Known to
Nigerian Law”, Journal of Public and Private Law, University of JOS, J.O Alemede, Esq,
considered the extent, if any, to which arrest of judgment applies in Nigeria. At pages 143
to 144 he states:
“Going through the length and breadth of our local civil procedure rules of courts there
appears to be no provision empowering the court to arrest judgment in a civil matter.The
same applies under the English Rules of court.This is because in a civil matter there is no
accused, no indictment, no offence, no conviction and no sentence.
It is however not uncommon to see applicants and counsels purport to move the court
to arrest judgment in a civil matter. Such motions are often brought before judgment in
a case that has been reserved but before it is delivered. For example, in Okocha v Unicross
(No.1), the defendant/applicant brought an application to “arrest judgment in default of
appearance of the defendants in this matter intended to be delivered on 21/590”. Sequel
to an objection by the plaintiff/respondent that the court has no jurisdiction to arrest
judgment, the Court per Honourable Justice J.J. Umoren held thus:
“I think I can say that an arrest of judgment which must take place between conviction
and verdict is not available in civil matters where there is no accused, no indictment and
no offence. It can therefore be said that there is no provision in our law or rules of court
or in the practice and procedure in the High Court of England that admits of an arrest
of judgment in civil matters.
In fact, a recourse to the inherent jurisdiction of the court would not avail an applicant
nor the court in importing arrest of judgment in civil matters as the court’s inherent
power is only exercisable as part of the judicial powers of the court and not otherwise.”
The conclusion of the learned author of the article is clear; that arrest of judgment is not
applicable to civil matters in Nigeria. Does this then mean that “arrest of judgment” does
not apply to civil proceedings even in Zambia? I am inclined to hold that it does. I have
already indicated that there is no provision for arrest of judgment in a civil matter under
the White Book or the High Court Rules. But it seems to me that under common law
the procedure applies to both civil and criminal matters. I have already indicated what is
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52 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

stated at page 117 of Black’s Law Dictionary (supra) that at common law, courts have the
power to arrest judgment for intrinsic causes appearing on the record.Therefore, it cannot
be entirely true as the learned author from Nigeria has said in his article that in England
arrest of judgment is only applicable in criminal matters or that a recourse to the inherent
jurisdiction of the court would not avail an applicant nor the court in importing arrest of
judgment in civil matters as the court’s inherent power is only exercisable as part of the
judicial powers of the court and not otherwise.
I conclude in agreement with Mr. Chalenga that there is no provision for arrest of
judgment under Order 35, rule 2 RSC, but for me the court has inherent jurisdiction
under common law to import arrest of judgment in civil matters. It follows that in
Zambia, unlike Nigeria, arrest of judgment applies to civil matters.
The next question is whether arrest of judgment is available in this particular matter.
Although I have disagreed with the conclusion by the Nigerian author that arrest of
judgment does not apply to civil matters in England, I find helpful the statement he makes
in answer to the question whether a party is without remedy after judgment in a case that
has been reserved, but before it is delivered. He says as follows at page 145:
“The answer appears to be that in place of arrest of judgment a party in civil causes
who intends to move the court not to give judgment at a date fixed for it may bring
an application asking the court among others to discharge the court’s early order
adjourning or fixing the matter for judgment and allow the applicant leave to defend
the suit on the merit, put its house in order or regularise the proceedings before
judgment is given or set aside the whole default proceedings and order a retrial of
the case.
Adopting the procedure suggested above would save time, cost, enable all controversy
to be completely and finally determined and avoid multiplicity of proceedings which
would have arisen had the applicant allowed the court deliver its judgment only to
wait to exercise the right to set aside later.”
The learned author further writes in his article at pages 146 to 147 as follows:
“In fact the proper order for a trial court before which an order to arrest judgment
is brought in a civil cause is to strike out the application as any court order suo moto
purporting to amend the prayer sought or granting it would be null and void.
Also, the defect is not cured by recourse to the often stated view that a client shall
not be punished for the negligence of his counsel or that the use of the word “arrest
of judgment” was a mistake or accidental slip that should not upset the grant of the
application to arrest judgment.”
I quite agree with the principle that the Nigerian author has expounded in his article
that the proper procedure is to bring an application asking the court among others to
discharge the court’s early order adjourning or fixing the matter for judgment and allow
the applicant leave to defend the suit on the merit, put its house in order or regularise
the proceedings before judgment is given or set aside the whole default proceedings and
order a retrial of the case. I think that this is the proper meaning of Order 35, rule 2
RSC. Therefore, instead of arrest of judgment, the 3rd defendant ought to have brought
an application asking this Court not to arrest judgment, but to discharge the earlier order,
adjourning or fixing the matter for judgment and allow it to defend the matter on the
merit. To the extent stated in my ruling I allow the preliminary point of law.
It seems to me that the proper order for me to make is to strike out the application
because an application to arrest judgment cannot be brought under Order 35, rule 2,
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Pleadings Without Tears- Tips in Civil Litigation 53

RSC. However, I have gone further to consider whether I would have granted the relief sought
if the application was properly before me. I have already said that arrest of judgment is an act of
staying a judgment or refusing to enter it because of some defect in the record of the case. In the
present case counsel for the applicant has not shown, in her affidavit in support, any material error
or defect on the face of the record or in the trial that if a decision is made would make it erroneous
or reversible. Consequently, I dismiss the application with costs to the plaintiff to be taxed
if not agreed.’’[emphasis mine]
R v Gombos (otherwise Gyugyei)51 was an English case that addressed the instance when
a litigant may arrest a judgment. Even though this was a criminal case, it still holds
true in civil matters.

Facts
This was an application by the accused for leave to appeal against his conviction and
sentence at the County of London Sessions on 18 August 1964. By his notice of
application for leave to appeal, the applicant said that he never received the stolen
goods, that a man named Nagy tried to sell them to him but that he did not want
them, that the police evidence was untrue, and that the allocutus52 was not put to him.
The Registrar referred the point raised as to the allocutus to the court under section
15(2) of the Criminal Appeal Act, 1907. The court refused leave to appeal against
sentence and Hinchcliffe,J held as follows:
“The applicant raises two matters. In the first he repeats his defence and says that he was
not guilty of the offence. That was a matter for the jury; there was no misdirection in
the summing-up. The second matter which he raises is that the allocutus was not put to
him. The applicant’s counsel made a plea in mitigation, but it is correct that the applicant
was not asked if he had anything to say why the court should not proceed to judgment
against him. This court has previously considered what is the effect of failing to put the
allocutus. In R v Ling the matter was raised. It appears that Ling, convicted of a felony, was
not called on. It was argued that the failure to put the allocutus might vitiate the trial, or
at any rate the sentence. The court expressed the view that the proper course might well
be to send back the prisoner to the court of trial to be sentenced afresh. It was at this point
that learned counsel appearing for Ling decided not to persist in his submission. During
the hearing of R v Ling reference was made to R v Donovan ((1928), 21 Cr App Rep 20 at page
21), where Lord Hewart CJ accepted the argument of counsel for the Crown that the only reason
for calling on a convicted prisoner in felony was to give him an opportunity of moving in arrest of
judgment on a point of law.The applicant here did not have a point of law to submit. All he wanted
to do—and I quote his own words— “was to say something about his case and the background”.
Thus it is that the learned Registrar has referred the point to this court under section 15(2) of the
Criminal Appeal Act, 1907. No point of substance arises on this question of law. The matter can
be determined without adjourning for a full hearing. This court, therefore, dismisses the
appeal summarily under section 15(2) of the Act of 1907. [emphasis mine].

51 [1965] 1 All ER 229

52 In criminal procedure, when a prisoner is convicted on a trial for treason or felony, the court is bound to
demand of him what he has to say as to why the court should not proceed to judgment against him; this
demand is called the “allocutus,” or “allocution,” and is entered on the record. Archb. Crim. Pi. 173; State Y.
Ball, 27 Mo. 324- Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed
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54 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1.14.1 Tips
Remember that the power to arrest a judgment must be brought under the court’s
inherent powers. This should be by way of a notice of motion application that will
give both parties an opportunity to address the court. Avoid writing a letter to the
court as an application may later be made to set aside the Ruling if it was decided on
the basis of the letter that perhaps brought a fundamental issue to the court’s attention
and the advocate inadvertently forgot to send a copy to the opposing advocate.
Essentially, when making the application to arrest the judgment or ruling always
remember that it must be a substantial point of law. Some of the possible reasons when
a judgment/ruling may be arrested are:
Both parties inadvertently proceed to argue on a point of law based on a statute that they
were unaware was repealed.
Arguing on the assumption that the certain statute applies when in fact the statute exempts
certain actions. For instance, the Hire Purchaser Act does not apply to goods whose value
exceeds KShs 4,000,000 but both parties overlook this limitation in a case where the value
of the goods is, say, KShs 6,000,000.
Evidence is discovered after the close of a case that a witness whose testimony was
recorded was based on fraudulent documentation. The discovery may have fortuitously
come to the attention of one party after the conclusion of arguments.
One advocate comes across an important judicial precedent that binds the lower court
when both parties had previously erroneously proceeded on case law that had been
overturned.

1.15 Notice of Withdrawal or Discontinuance of a Suit

Order 25 of the Civil Procedure Rules provides as follows:
“1. At any time before the setting down of the suit for hearing the plaintiff may by
notice in writing, which shall be served on all parties, wholly discontinue his suit
against all or any of the defendants or may withdraw any part of his claim, and such
discontinuance or withdrawal shall not be a defence to any subsequent action.
2.(1) Where a suit has been set down for hearing it may be discontinued or any part of
the claim withdrawn, upon the filing of a written consent signed by all the parties.
(2) Where a suit has been set down for hearing the court may grant the plaintiff leave
to discontinue his suit or to withdraw any part of his claim upon such terms as to
costs, the filing of any other suit, and otherwise, as are just.”

1.15.1 Distinction between Discontinuance and a Withdrawal

There is actually an important distinction which may not be a matter of mere
terminology, since it may affect the question of costs or the continuation of a new
action or the making of a new claim, between “discontinuance” and “withdrawal”.
The term “discontinuance” appears to be directed to the final termination of the
whole action or counterclaim, so that no part of it survives an effective discontinuance,
whereas the term “withdrawal” appears to be directed to the termination of part only
of an action, namely in action begun by writ, of a particular claim made in the action
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Pleadings Without Tears- Tips in Civil Litigation 55

or counterclaim, and in an action begun by originating summons, of a particular

question or claim raised in the summons.53

1.15.2 General Circumstances when a Party Opts to Discontinue or

Withdraw a suit
As a general proposition, the right of a party to discontinue a suit or withdraw his claim
cannot be questioned.There are many circumstances when a plaintiff may legitimately
wish to discontinue his suit or withdraw his claim as is demonstrated below.
The Court of Appeal in the case of Beijing Industrial Designing and Researching
Institute v Lagoon Development Limited54cited the Supreme Court of Nigeria case of
Mohammad Abayomi Babatunde v Pan Atlantic Shipping and Transport Agencies Ltd and
others55 that identified the following circumstances where a plaintiff may discontinue
the suit to include:
(i) a plaintiff realizes the weakness of his claim in the light of the defence put up by the
defendant,
(ii) a plaintiff ’s vital witnesses are not available at the material time and will not be so
at any certain future date,
(iii) where by abandoning the prosecution of the case, the plaintiff could substantially
reduce the high costs that would have otherwise followed after a full-scale but
unsuccessful litigation, or
(iv) a plaintiff may possibly retain the right to re-litigate the claim at a more auspicious
time if necessary.
Justice Ibrahim Tanko, in the Mohammad Abayomi Babatunde v Pan Atlantic Shipping and
Transport Agencies Ltd and others case, stated that a plaintiff has a right to discontinue
his action if he so chooses because the filing of the action does not necessarily imply
that the parties have irrevocably committed themselves to resolving their dispute by
litigation. In addition, a court of law cannot force an unwilling plaintiff to continue
with an action because, even if the court insists that he should continue, he may well
refuse to tender evidence or take any further steps in the action.
The Supreme Court of Kenya in the case of John Ochanda v Telkom Kenya Ltd,56
held as follows on the issue of a party withdrawing notice of appeal under rule 19 of
the Supreme Court Rules. Justice Ibrahim, SCJ held:
“I do hold the view that a prospective appellant is at liberty to withdraw a Notice of
Appeal at any time before the Appeal has been lodged and any further steps taken. No
proceedings have commenced strictly. I am also of the view that just like under the
Civil Procedure Rules or Court of Appeal Rules, the right to withdraw or discontinue
proceedings or withdraw a Notice of Appeal respectively ought to be allowed as a matter
of right subject to any issue of costs, which can be claimed by the respondents, if any. In
this particular case, there cannot be any reason for inter partes hearing and the matter can
proceed ex parte as the right to withdraw cannot be taken away.”

53 See the Supreme Court Practice 1997 Volume 1 PART 1 at page 379 para. 21/2-5/1
54 [2015] eKLR
55 SC 154/2002
56 SC APP. No. 25 OF 2014
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56 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

The Supreme Court of Kenya in the case of Nicholas Kiptoo arap Korir Salat v IEBC
and others,57 recognized the right of a party to withdraw a matter and held:
“A party’s right to withdraw a matter before the court cannot be taken way. A court
cannot bar a party from withdrawing his matter. All that the court can do is to make an
order as to costs where it is deemed appropriate.”
The Court of Appeal in the cases of Beijing Industrial Designing and Researching Institute
v Lagoon Development Limited set out the following scenarios where suits may be
discontinued or withdrawn:
1. Where the suit has not been set down for hearing. In such an instance, the plaintiff
is at liberty, at any time, to discontinue the suit or to withdraw the claim or any part
thereof. All that is required of the plaintiff is to give notice in writing to that effect
and serve it upon all the parties. In that scenario, the plaintiff has an absolute right
to withdraw his suit, which we agree cannot be curtailed.
2. Where the suit has been set down for hearing. In such a case, the suit may be
discontinued or the claim or any part thereof withdrawn by all the parties signing
and filing a written consent. In this scenario, the right of the plaintiff is circumscribed
by the requirement that he must obtain the written consent of all the other parties.
3. Where the suit has been set down for hearing but all the parties have not reached
any consent on discontinuance of the suit or withdrawal of the claim or any
part thereof. In such eventuality, the plaintiff must obtain leave of the court to
discontinue the suit or to withdraw the claim or any part thereof, which is granted
upon such terms as are just. In this scenario too, the plaintiff ’s right to discontinue
his suit is circumscribed by the requirement that he must obtain the leave of the
court. That such leave is granted on terms suggests that it is not a mere formality.

1.15.3 When Does a Notice of Withdrawal Take Effect?

It is attractive for one to withdraw a suit simply because an ex parte injunction order
was denied and then proceed to immediately file a fresh suit seeking identical relief
before a different court. But be warned - this may horribly backfire. Here is why.
In the case of Theluji Dry Cleaners Ltd v Muchiri and others58 the plaintiff had filed
and sought an injunction in the High Court. After it was declined, the applicant
withdrew the suit and filed a fresh suit in the subordinate court and obtained an
injunction. One of the serious issues raised was the effect of the withdrawal of the
suit and the implication of the endorsement of the withdrawal by the Registrar 6 days
later. The question posed was when the withdrawal took effect. Justice Etyang held
that the notice of withdrawal did not take effect from the date of its filing but from
the date it was adopted as an order of the court when it was endorsed by the Deputy
Registrar.

57 SC APP. NOo. 16 OF 2014

58 [2002] 2 KLR 764.
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Pleadings Without Tears- Tips in Civil Litigation 57

1.15.4 Subsisting Injunctive Orders Collapse when Suit is Withdrawn or

Discontinued
The Court of Appeal in the case of Ntarangwi Ikiara v Commissioner of Lands and
others59 considered an appeal where the superior court had struck out a notice of
discontinuance as that would defeat the status quo orders.The Court of Appeal allowed
the appeal and held as follows:
“With due respect to the learned Judge, the statement that a status quo order shall
continue to subsist if a suit is discontinued is an error of law. It is trite law that when a suit
is withdrawn or discontinued, any subsisting orders made in the suit collapse and come to
an end with the withdrawal or discontinuation. We find that the learned Judge erred in
law in arriving at the decision to strike out the appellant’s notice of discontinuation based
on the erroneous interpretation of the effect of withdrawal of suit on a status quo order.’’
Eiden Enterprises Limited and 2 others v Paradise Mombasa Marketing Limited and others.60
The court distinguished between discontinuance of a suit and withdrawal of a claim.
The court held:
“It is my view that there is a distinction in law between a “Discontinuance of Suit” and
“Withdrawal of a Claim” under the provisions of Order 24.
It is my view that a discontinuance of a suit is a termination of the entire suit. It is
abandonment and retraction of the suit so that nothing remains of it. The provisions refer
to: - Discontinuance of suit and withdrawal of claims.
In the present case, the Notice refers to withdrawal of suit as against, 1st, 2nd and 3rd
defendants. I do hold that the term discontinuance was not used but “withdrawal”.
However, the term “withdrawal” was used in respect of the “suit” i.e. “...the suit is hereby
withdrawn as against the 1st, 2nd and 3rd defendants.
The withdrawal is of the suit and not claims or part of it. My interpretation is that where
there is a wholesome withdrawal of all claims in a suit or withdrawal of the suit, the net
legal effect is that there is a discontinuance of the suit and against those intended.’’
Sushilaben Ramniklal Shah v Vegetable Bargain Centre Ltd t/a Green House Restaurant.61
This case considered the complaint of the advocate who protested that he had been
served with the withdrawal of the suit. The court held as follows when it held that a
party withdrawing suit cannot be stopped:
“Mr. Namada counsel for the defendant opposed the application for withdrawal of the
suit on the ground that it was an ambush. He submitted that the application is made in bad
faith because there are Interim Orders in favour of the defendant and if this application
is allowed, the new Landlord will seize that opportunity to evict the defendant from the
suit premises. He concluded that the application to withdraw the suit is incompetent and
should not be allowed with due respect to counsel if the plaintiff is no longer interested
in its suit and applies for leave to withdraw it cannot be stopped. The only remedy for
the defendants is costs and since the plaintiff is not willing to pay the defendant the costs
of the suit I see no reason to refuse to grant leave.’’

59 [2014] eKLR
60 [2010] EKLR
61 [2006] EKLR
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58 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1.15.5 Do Contempt Proceedings Survive a Suit that has been Withdrawn

or Discontinued?
Does any pending contempt application also suffer the same fate as injunctive orders
that collapse when a suit has been withdrawn or discontinued? This novel point was
considered by the Court of Appeal in Malindi in the case of Beijing Industrial Designing
and Researching Institute v Lagoon Development Limited.62 The main issue the Court
of Appeal addressed was whether the High Court erred by allowing the respondent
[the plaintiff in the high court case] to discontinue the case whilst the appellant [the
defendant in the High Court case] had contempt of court proceedings pending for
hearing and determination in that suit. The reasoning of the Court of Appeal in
allowing the appeal can be stated as follows:
(a) Contempt of court proceedings are quasi-criminal (see In Re Bramblevale Ltd
(1970) CH 128). That explains the reason why in this jurisdiction the standard
of proof in contempt of court case has been held to be “higher than proof on the
balance of probabilities, almost but not exactly, beyond reasonable doubt.” (See
Mutitika v Baharini Farm [1982-88] 1 KAR, 863. Clearly, criminal or quasi-criminal
proceedings ought not to be terminated at the exclusive instance or discretion of
the party alleged to be a perpetrator of a criminal or quasi-criminal act.
(b) As Lord President Clyde noted way back in 1923 in Johnson v Grant, 1923 SC
789 at 790, the purpose of the law on contempt of court is not to protect the
personal dignity of the judiciary or the private rights of parties or litigants. Nor is
it intended to assuage the offended dignity of the court. Rather, it is intended to
uphold and protect the supremacy of the law. To that extent, contempt proceedings
involve much more than the private interests of the plaintiff and the defendant and
implicate the public interest at large. On compliance with court orders, which the
respondent is alleged to have failed to do, Justice Froneman had the following to say
in the South African case of Burchell v Burchell, Case No. 364/2005.
“Compliance with court orders is an issue of fundamental concern for a society
that seeks to base itself on the rule of law. The Constitution states that the rule
of law and supremacy of the Constitution are foundational values of our society.
It vests the judicial authority of the state in the courts and requires other organs
of state to assist and protect the courts. It gives everyone the right to have legal
disputes resolved in the courts or other independent and impartial tribunals. Failure
to enforce court orders effectively has the potential to undermine confidence in
recourse to law as an instrument to resolve civil disputes and may thus impact
negatively on the rule of law.”
(c) The uncritical application of Order 25, rule 1 to the facts of this case resulted, in
our respectful view, in an anomalous situation where the public interest in the
upholding and protection the rule of law was sacrificed, without the slightest of
consideration, at the altar of the respondent’s alleged absolute right to withdraw its
suit, even when it was alleged to have deliberately undermined the rule of law. The
public interest was placed at the mercy of the respondent, because to vindicate the
supremacy of the law depended on the continued existence of the respondent’s suit,
even if for the limited purpose of facilitating the hearing and determination of the
contempt of court application alone.

62 [2015] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 59

(d) Order 40, rule 3 of the Civil Procedure Rules provides that in the event of
disobedience of an injunction or breach of its terms, the court that granted the
injunction may order the attachment of the property of the person in breach and
may order such person to be detained in prison for a term not exceeding 6 months.
Under Order 40, rule 3(3) an application against a person alleged to be in breach of
an injunction must be made in the suit in which the order of injunction was made.
(e) It follows therefore that a literal application of Order 25, rule 1 in the circumstances
of this suit would enable a party who is alleged to have undermined the rule of law
to walk away scot-free by simply withdrawing the suit in which the law compels
the respondent to file the application for contempt of court. As has consistently
been stated by the courts, the law will not countenance a person benefiting from his
wrongdoing or alleged wrongdoing. Lord Finlay expressed the principle as follows
in New Zealand Shipping v Societe Des Ateliers Et Chantiers De France [1919] AC 1,
which we agree with:
“The decisions on the point are really illustrations of the very old principle laid
down by Lord Coke (Co Litt. 206b) that a man shall not be allowed to take
advantage of a condition which he himself brought about.”
(f) Our conclusion that it was inappropriate to allow the respondent, at its sole
discretion, to withdraw its suit in the circumstances of this case, finds favour and
support from the decision of the House of Lords in Castanho v Brown and Root
(Uk) Ltd and another [1981] 1 ALL ER 143. In that case the plaintiff commenced
proceedings in the UK for damages for personal injuries and obtained an order for
interim payment of damages. While the proceedings in the UK were still pending,
and in the hope of obtaining a higher award of damages, the plaintiff commenced
another action in the USA. The defendant applied for stay of the USA suit upon
which the plaintiff served a notice of discontinuance of the suit in the UK. Order
21, rule 2(1) of the Rules of the Supreme Court allowed the plaintiff to discontinue
the same without leave. The High Court struck out the notice of discontinuance
on the ground that it was an abuse of the process of court. On appeal, the Court
of Appeal reversed the decision and restored the notice of discontinuance. On a
further appeal, the House of Lords held that termination of legal process such as a
notice of discontinuance, like any other step in the process, could be used by a party
to obtain a collateral advantage which would be unjust for him to retain and could
therefore be prevented by the court under its inherent jurisdiction to prevent an
abuse of the process of the court. Speaking for the House, Lord Scarman stated:
“The court has inherent power to prevent a party from obtaining by the use of
its process a collateral advantage which it would be unjust for him to retain; and
termination of the process can, like in any other step in the process, be so used. I
agree, therefore, with Parker, J and Lord Denning, MR that service of a notice of
discontinuance without leave, though it complies with the rules, can be an abuse
of the process of the court. Was it, then, in the circumstances of this case an abuse?
In my judgment, it was. A sensible test is that which both the judge and Lord
Denning, MR applied. Suppose leave had been required…, would the court have
granted unconditional leave? It is inconceivable that the court would have allowed
a plaintiff, who had secured interim payments and an admission of liability by
proceeding in the English court, to discontinue his action in order to improve his
chances in a foreign suit without being put on terms, which could well include not
only repayment of the moneys received but an undertaking not to issue a second
writ in England.”
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60 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(g) We entertain no doubt in our minds that the withdrawal by the respondent of its
suit for the purpose of defeating the contempt of court application against it was
an abuse of the process of court. Under section 3A of the Civil Procedure Act the
High Court’s inherent power to make such orders as may be necessary for the ends
of justice or to prevent abuse of the process of court is preserved. Where a party
uses the right to discontinue a suit in a manner that amounts to abuse of process
of court or to defeat the ends of justice, the court has power to stop such abuse or
undermining of justice.

1.15.6 New Suit May be Stayed if Costs not Paid in the Discontinued Suit
The court has a discretion to stay the new suit until costs are paid for the previous
discontinued suit. This discretionary power is set out in Order 25, rule 4 of the Civil
Procedure Rules that states:
4. Stay of subsequent suit [Order 25, rule 4.]
If any subsequent suit shall be brought before payment of the costs of a discontinued
suit, upon the same, or substantially the same cause of action, the court may order
a stay of such subsequent suit until such costs shall have been paid.

1.15.7 Discontinuing a Suit Does not Destroy the Undertaking as to

Damages
I was once involved in a case where the plaintiff filed an injunction application
and obtained ex-parte orders with the usual condition that the plaintiff files and
undertaking as to damages. The undertaking was filed and after the inter partes hearing
the injunction was dismissed. However, one year had passed and the plaintiff forgot to
extract and serve the summons. When I raised an objection to the validity of the suit
for failure to serve summons, the suit was withdrawn. The question that later arose
was whether the undertaking as to damages was still in force considering that during
the life of the injunction, the bank was deprived of rental income. This was the case of
Church Road Development Co. Ltd v Barclays Bank of Kenya Ltd and others63 where Justice
Ochieng agreed that the undertaking as to damages subsists even after the suit has
been withdrawn. The judge held as follows:
“In my considered view, it would be wholly inequitable for a person who had given
such an undertaking to remove themselves from the obligations arising from their said
undertaking, at their own will. If that were made possible, the undertakings as to damages
would have no tangible meaning. Therefore, in my considered view, the only way to
ensure that undertakings as to damages were meaningful, is by insisting that they remained
effective for all time, subject only to the defendant satisfying the court that he suffered
some damage that was attributable to the interim injunction. In other words, I believe
that the discontinuance of a suit in which the undertaking as to damages was given,
should not bring the undertaking to an end.
The learned authors of Halsbury’s Laws of England, 4th Edition, Volume 24 described an
undertaking as to damages as being an undertaking:

63 [2006] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 61

“to abide by any order as to damages which the court may make in case it should
afterwards be of opinion that the defendant has, by reason of the order, sustained any
damages which such party ought to pay.” (see paragraph 982 of Halsbury’s above-cited)
They go on, at paragraph 983 of that text, to cite the following as being the effect of
the undertaking:
“The plaintiff ’s undertaking as to damages on an order for an injunction remains in
force notwithstanding the dismissal or discontinuance of the action, and if the plaintiff
ultimately fails on the merits the defendant is entitled to an inquiry as to the damages
sustained by reason of the interlocutory injunction, unless there are special circumstances.
The undertaking applies, even if the plaintiff has not been guilty of misrepresentation,
suppression or other default in obtaining the injunction, and is equally enforceable
whether the mistake in granting the injunction was on a point of law or on the facts.”  
I have no doubt that the above-cited text correctly stated the legal position on
undertakings as to damages.
In the case of Newcomen v Coulson (1878) 7 CHD 764 the court held as follows:
“I cannot accede to Mr. Higgins argument, that a plaintiff can deprive a defendant of his
right to damages under the plaintiff ’s undertaking by discontinuing his action. …….. it
would be a most dangerous doctrine to hold that he can thus evade his liability.
…There must be a reference as to damages in the ordinary way.”
In the light of those persuasive authorities, I am convinced beyond any doubt that the
plaintiff ’s liability under its undertaking as to damages did not cease upon the lodging
of its Notice of Withdrawal of Suit.
However, even though the defendants have asserted the said loss was in the sum of KShs
8,000,000, I am not convinced that the issue is that simple. I say so, regardless of the
contention that the damage was equivalent to the sum which the 2nd and 3rd defendants
were unable to collect, as rents, for ten months when the injunction was in force. First,
the defendants did not satisfy the court that the monthly rents of KShs 800,000 were
being collected as a matter of course. In reality, there could always be the possibility of
tenants defaulting in the payment of rents, at some time or other.
Furthermore, the receivers were now back in place. Therefore, the defendants have not
completely lost out; perhaps they have only suffered a ten-month delay in collecting the
rents. As I understand it, the 1st defendant still holds security for the money it is owed by
the plaintiff.
Before the court can ascertain the damages occasioned to the defendants due to the
interlocutory injunction, it would be necessary for there to be conducted an inquiry as
to damages. Therefore, I do direct that the defendants do set down the case for a session
when they will adduce proof of the damages they suffered during the period when the
interlocutory injunction was in force.

1.15.8 Tips
(a) As the advocate for the opposite party, once a suit has been discontinued do apply
for in writing to the court to sign judgment for the costs of the suit which has been
wholly discontinued. This is provided for in Order 25, rule 3.
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62 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(b) Once costs have been entered, do not delay in filing your bill of costs or applying
for the certification of costs before the High Court or Magistrates Court. This will
assist you in staying any subsequent suit filed on similar grounds until the costs are
paid.
(c) If a consent has been filed that compromises the suit and a new advocate comes
on record with new instructions to withdraw the suit with a view to destroying
the consent, the court should not allow that as it would be an abuse of the court
process.
(d) If an undertaking as to damages has been given and the suit discontinued, do set
down the matter for the inquiry as to the damages suffered. The emphasis will be
to demonstrate what loss has been suffered on account of the injunction orders that
were granted.
(e) If a compromise has been reached, then move the court under Order 25, rule 5 to
record the compromise. The rule provides as follows:
5. Compromise of a suit [Order 25, rule 5.]
(1) Where it is proved to the satisfaction of the court, and the court after
hearing the parties directs, that a suit has been adjusted wholly or in
part by any lawful agreement or compromise, or where the defendant
satisfies the plaintiff in respect of the whole or any part of the subject-
matter of the suit, the court shall, on the application of any party, order
that such agreement, compromise or satisfaction be recorded and enter
judgment in accordance therewith.
(2) The Court, on the application of any party, may make any further order
necessary for the implementation and execution of the terms of the
decree.

1.16 Liquidated Demands

A common phenomenon, mainly experienced in the magistrates’ courts, is the
mistreatment of an application seeking interlocutory judgment upon a liquidated
demand under Order 10 of the Civil Procedure Rules upon default of appearance or
filing a defence. Order 10 concisely addresses how judgment is entered on a liquidated
demand against defendant(s) who have not entered appearance.
4. Judgment upon a liquidated demand [Order 10, rule 4.]
(1) Where the plaint makes a liquidated demand only and the defendant fails to
appear on or before the day fixed in the summons or all the defendants fail
so to appear, the court shall, on request in Form No. 13 of Appendix A, enter
judgment against the defendant or defendants for any sum not exceeding the
liquidated demand together with interest thereon from the filing of the suit,
at such rate as the court thinks reasonable, to the date of the judgment, and
costs.
(2) Where the plaint makes a liquidated demand together with some other claim,
and the defendant fails, or all the defendants fail, to appear as aforesaid, the
Court shall, on request in Form No. 13 of Appendix A, enter judgment for
the liquidated demand and interest thereon as provided by sub-rule (1) but
the award of costs shall await judgment upon such other claim.
5. Liquidated demand against several defendants [Order 10, rule 5.]
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Where the plaint makes a liquidated demand with or without some other claim,
and there are several defendants of whom one or more appear and any other fails to
appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment
against any defendant failing to appear in accordance with rule 4, and execution
may issue upon such judgment and decree without prejudice to the plaintiff ’s right
to proceed with the action against such as have appeared.
6. Interlocutory judgment [Order 10, rule 6.]
Where the plaint is drawn with a claim for pecuniary damages only or for detention
of goods with or without a claim for pecuniary damages, and any defendant
fails to appear, the court shall, on request in Form No. 13 of Appendix A, enter
interlocutory judgment against such defendant, and the plaintiff shall set down
the suit for assessment by the court of the damages or the value of the goods and
damages as the case may be.
7. Interlocutory judgment where are several defendants [Order 10, rule 7.]
Where the plaint is drawn as mentioned in rule 6 and there are several defendants of
whom one or more appear and any other fails to appear, the court shall, on request
in Form No. 13 of Appendix A, enter interlocutory judgment against the defendant
failing to appear, and the damages or the value of the goods and the damages, as the
case may be, shall be assessed at the same time as the hearing of the suit against the
other defendants, unless the court otherwise orders.
In practice, advocates are frustrated when the court enters interlocutory judgment
when an application has been filed for the entry of judgment upon a liquidated
demand only to be directed to proceed to formal proof. This practice is contra-statute
and only delays the plaintiff from enjoying its fruits of litigation. In addition, it only
burdens the court with applications seeking to have the order directing the matter
to proceed to formal proof set aside. In the event that advocates opt to comply, such
formal proofs only delay the dispensation of justice and serve to unnecessarily congest
the court diary.

1.16.1 Do not apply for default judgment by way of a letter

Form 13 Appendix A in the Civil Procedure Rules is simple. Once the application is
filed, and the conditions for entry of judgment have been met, there is no jurisdiction
to order that the matter proceeds to formal proof in respect of a liquidated demand. I
will now set out the cases that explain the significance and procedure when applying
for default judgments.
In the case of Matex Hospital Supplies Limited v Kenya Ports Authority64 the court
allowed the defendant’s application for setting aside default judgment that was obtained
ex-parte.

Facts
The plaintiff ’s claim was for special damages of KShs 11,308,000 which represented
the value of goods the plaintiff alleged the defendant’s employee removed from
the plaintiff ’s premises. The plaintiff was a tenant of the defendant’s. The plaintiff ’s

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64 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

advocates applied for the entry of judgment by their letter dated 16 September 2014
filed in court on 19 September 2014. In the body of that letter the advocate wrote:
“Kindly enter judgment against the defendant who has failed to put its appearance/
or defence within the prescribed time. The judgment is for a liquidated sum of KShs
11,308,000 together with costs and interest thereon.”
The Deputy Registrar entered judgment on the basis of the letter as follows:
“Ex-parte judgment is entered herein in favour of the defendant who has failed to enter
an appearance within the prescribed period despite having been served with plaint
and summon. The ex-parte judgment is for KShs 11,308,000 being the liquidated claim
together with costs and interest from the date of filing suit till date of judgment.”
The court found that the default judgment was irregular in that it did not qualify for a
liquidated demand as the plaintiff assessed the value of the goods removed as forming
the basis of arriving at the sum of KShs 11,308,000. Justice Kasango held:
“11. I draw specific attention to that judgment recorded by the Deputy Registrar. The
judgment was “in favour of the defendant.” Although the entry states it was in
favour of the defendant it does not state against whom it was entered.
12. Secondly under Order 10, rule 4 of the Civil Procedure Rules the plaintiff ’s counsel
application for entry of ex parte judgment should have been in the format seen in
form No 13 of Appendix A of the Rules. As stated before learned counsel for the
plaintiff applied for entry of judgment by letter and not in the format provided
under the above Rule.
13. Order 10, Rule 4 (1) is the Rule under which entry of judgment for liquidated
claim is entertained. It is in the following terms:
“4.(1) Where the plaint makes a liquidated demand only and the defendant fails to
appear on or before the day fixed in the summons or all the defendants fail
so to appear, the court shall, on request in Form No 13 of Appendix A enter
judgment against the defendant or defendants for any sum not exceeding
the liquidated demand together with interest thereon from the filing of the
suit, at such rate as the court thinks reasonable, to the date of the judgment,
and costs.”
14. As stated before the plaintiff by this claim alleged that the defendant removed items
of its property from its rented premises whose value was KShs 11,308,000. That
in my view does not qualify as a liquidated claim. The Black’s Law Dictionary, 8th
edition defines liquidated claim as:
“1. A claim for an amount previously agreed on by parties or that can be
precisely determined by operation of law or by the terms of the parties’
agreement. 2. A claim determined in a judicial proceeding.”
15. Considering that definition it becomes clear that the plaintiff ’s claim is far from
being a liquidated claim. It is a claim that the plaintiff needed, after entry of
judgment, to formally prove. The Deputy Registrar therefore erred to have entered
final judgment on a claim that was not liquidated claim. The entry of judgment by
the Deputy Registrar therefore was in excess of her jurisdiction and on that ground
alone the defendant’s application to set aside judgment will succeed.’’
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1.16.2 A liquidated demand must not require investigation beyond mere

investigation
At times the plaint may seek a declaration that contains reference to specific sums of
money. This does not make it a liquidated demand.
This was the scenario in the case of A.S. Sheikh Transporters Ltd v Barclays Bank of
Kenya Ltd.65

Facts
The plaint sought, inter alia, the following reliefs:
(a) A declaration that the alleged outstanding amount of KShs 50, 978,697.35 only is
premised on excessive, harsh, unconscionable and illegal charges, penalties and/or
interest rates.
(b) An order of reconciliation of all the plaintiff ’s accounts with the defendant including
current account number 1128153.
(c) An order of supply of certified copies of the statements of all the plaintiff ’s accounts
with the defendant including current account number 1128153.
(d) An order of permanent injunction restraining the defendant either by itself, servants
and/or agents whatsoever from selling, alienating, disposing of or in any way
interfering with LR. Number .209/8343/55 or any other security(ies) held by
itself on account of the plaintiff.
The defendant entered appearance but failed to file defence leading the plaintiff to
apply for default judgment. The court allowed the defendant’s application seeking to
set aside the default judgment and held as follows:
“This is now an appropriate point to render my finding. The reliefs sought in the plaint
are set out at the early part of this ruling. The question that arises then is whether those
reliefs are of a liquidated claim or a pecuniary one to regularize the entry of judgment as
herein done. What then is a liquidated claim?
“A liquidated demand is in the nature of a debt i.e. a specific sum of money due and
payable under or by virtue of a contract. Its amount must either be already ascertained
or capable of being ascertained as a mere matter of arithmetic. If the ascertainment
of a sum of money even though it be specified or named as a definite figure requires
investigation beyond mere calculation, then the sum is not a “debt or liquidated demand”,
but constitutes “damages” .... The words “debt or “liquidated demand” do not extend
to unliquidated damages, whether in tort or contract, even though the amount of such
damages be named at a definite figure” – see In the Supreme Court Practice, Volume 1,
1985 page 33. The claim herein does not fit the above definition and therefore Order 9A,
rule 3 could not be used to empower entry of that judgment. Order 9A, rule 5 which
reads:
“Where the plaint is drawn with a claim for pecuniary damages only or for detention
of goods with or without a claim for pecuniary damages, and any defendant
fails to appear, the court shall, on request in Form No. 26 of Appendix C enter
interlocutory judgment against such defendant, and the plaintiff shall set the suit for
assessment by the court of the damages or the value of the goods and damages as
the case may be” was clearly in-appropriate for use for the entry of judgment herein

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66 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

as there is no claim in the plaint herein fitting the above description. That in my
view disposses of the issue of the irregularity of the entry of judgment herein. That
entry of judgment was not regular. That then makes a case for the setting aside of
that judgment not as a matter of discretion but ex debito justitiae. On that account
alone I order the judgment herein entered on 29 September 2009 be set aside.’’

1.16.3 Only Final Judgment is Envisaged when Applying for Judgment on

a Liquidated Demand
The Court of Appeal in the case of Coach Safaris Limited v Gusii Deluxe Limited66
emphasized that the rule on default judgment does not provide for “interlocutory”
judgment in default of defence but a final judgement when the claim is based on a
liquidated demand. The facts and decision are set out in full in the judgment below:
“Coach Safaris Ltd., the appellant herein, to whom we shall hereafter refer to as “the
plaintiff ”, filed a suit in the superior court against Gusii Deluxe Ltd., the respondent,
(hereinafter called “the defendant”), claiming a liquidated sum of KShs 1,357,100 being
special damages alleged to have been sustained by the plaintiff when its motor vehicle, a
bus, registration No. KAA 410S collided with another bus registration No. KAA 225C
belonging to the defendant at Kericho on 14 October 1992. It was contended by the
plaintiff that the accident was caused by negligence on the part of the defendant’s driver
and the particulars of the negligence were set out in paragraph 4 of the plaint. Particulars
of special damages were also pleaded.”
The defendant entered appearance on 10 April 1995 but did not file a defence within
the time prescribed for that purpose. The plaintiff then applied for judgment in default
of defence under Order 9A, rule 3 as read with rule 9 of the Civil Procedure Rules.
On 5 May 1995, the Deputy Registrar purported to enter “interlocutory” judgment in
default of defence but in actual fact it should have been a final judgement in terms of
rule 3 above this being a liquidated demand. That being the case there was no necessity
for formal proof.
The socalled “interlocutory” judgment was by consent set aside on 19 June 1995 on
terms that the defendant pays throwaway costs agreed at KShs 32,000 within 14 days
from the date. In default the said “interlocutory” judgment was to be reinstated without
further application. In the event, the defendant defaulted, the “interlocutory” judgment
was thereby automatically reinstated. So whatever followed thereafter by way of formal
proof was a nullity and a complete waste of judicial time. In these circumstances we do
not have to deal with the propriety or otherwise of what the Judge did thereafter.
By reason of the provisions of Order 9A, rule 3 of the Civil Procedure Rules, the plaintiff having
made a liquidated demand, it was entitled to final judgement in default defence. In the result, we
allowed the appeal and set aside the decree of the superior court dated 16 May 1996. For the
avoidance of doubt, we wish to state that the judgement which was entered on 5 May 1995 is still
in place.The plaintiff will have the costs of this appeal.’’[emphasis mine]

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1.16.4 Tips
(a) Remember that the purpose of the figures in the plaint are meant to support the
main claim for a liquidated demand. It is straightforward when you are claiming on
the basis of debt collection.
(b) A claim that picks figures from the air on the basis of purported losses suffered for
the destruction or taking away of chattels will invite formal proof.

1.17 Lifting the Veil of Incorporation

There are numerous instances where companies are used as conduits to commit
corporate fraud and the directors simply hide behind the veil of incorporation. The
suffering victim is then at a loss as to how to recover the debt when faced with
corporate fraud.
There are two scenarios that play out:
Scenario 1: If clear evidence of fraud can be proved, a party can file suit against the
company and at the same time seek for orders to lift the veil of incorporation and
make the directors and/or shareholder personally liable.
Scenario 2: If in the course of the execution proceedings, an application is made to
cross-examine the directors and it is found that they are found to have personally
diverted funds, then the court may summarily lift the veil of incorporation after the
cross-examination.

1.17.1 Scenario 1
The first scenario is exemplified in the case of Ephantus M. Kagomo and others v Industrial
and Commercial Development Corporation.67

Facts
The plaintiffs filed a suit against the defendant seeking,inter alia, damages for wrongful
dismissal and/or loss of employment, loss of income and other terminal benefits.
Their cause of action was premised on the fact that while being employees of Kenya
Engineering Industries Limited the defendant which was an equal and joint equity/
share holder and manager of the affairs of the said company as well as a debenture
holder over all the assets of the said company, placed the company under receivership
jointly with Kenya Commercial Bank Limited (hereinafter referred to as the Bank).
This action, according to the plaint, was in the exercise of the powers conferred upon
the defendant by the said debenture. Consequently, the plaintiff ’s employment was
unlawfully terminated. It was the plaintiff ’s position that the defendant as the joint
owner of the said company was by extension their employer and owed them the
duty to ensure that the company was not run down or bankrupted and is obliged to
compensate them for the loss of employment which losses were to be particularised
at the hearing of the case. The plaintiffs’ losses therefore stem from what, according to
them, was the defendant’s unlawful act of closing down the subsidiary company.

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68 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

The defendant filed a defence on 15 September 1998, where while averring

that the said company was a subsidiary company, denied managing the affairs of the
company. It, however, admitted having placed the said company under receivership
but contended that it was within its rights as debenture holder to take such lawful
action. According to the defendant it was not the Receiver of the company but a
debenture holder. According to the defendant the said company has since been placed
on liquidation and rights to sue therefore extinguished.
Justice Odunga dismissed the plaintiffs’ suit but took into account the fact that the
defendant was admittedly a shareholder and manager of the company and contributed
to the company being placed into receivership. He therefore did not grant it costs.The
judge dealt at length on the instance when the veil of incorporation can be lifted and
held thus:
“The first issue for determination is whether the defendant managed the affairs of the
Company. A corporation is an artificial legal entity. Accordingly, it must of necessity act
through agents, usually the Board of Directors. In other words, the corporation’s brain is
the Board of Directors who make decisions on behalf of the company. A company may in
many ways be likened to a human body; it also has hands which hold the tools and act in
accordance with the directions from the centre. Some of the people in the company are
mere servants and agents who are nothing more than hands to do the work and cannot
be said to represent the mind or will. Others are directors and managers who represent
the directing mind and will of the company, and control what it does. The state of mind
of these managers is the state of mind of the company and is treated by law as such. The
day-to-day management of the company may, however, be handled by specific officers
tasked to do so on behalf of the Board. However, the ultimate responsibility rests with the
directors. It therefore follows that the management of the corporation must be deemed to
be carried by or on behalf of the Board save in cases where the ultra vires principle applies.
In this case, although the subscribers to the Company’s Articles and Memorandum of
Association are indicated to be the defendant and the said Polish Company, the directors
are indicated to be D Masika, H M Adolwa, J Myszka as well as the defendant. This was
admitted by DW-1 in cross-examination. It follows that the defendant was one of the
managers of the Company and the answer to the first issue must be in the affirmative.
The second issue is whether the defendant by its actions should be considered as the same
entity as the company and whether the company’s corporate veil should be lifted. The
legal position as regards incorporated entities is well settled. In Standard Chartered Bank
Kenya Limited v Intercom Services Limited & 4 others, civil appeal number 37 of 2003 [2004]
2 KLR 183, the Court of Appeal citing Salomon v A. Salomon & Company Ltd [1897] AC
22 and Adams v Cape Industries Plc [1990] 1 Ch 433 held that it is a principle of company
law of long antiquity that a limited company has a legal existence independent of its
members and that a company is not an agent of its members. The Court further said
that the principle of alter ego attributes the mental state of company’s directors or other
officers to the company itself in order to fix the company with either criminal or civil
liability.
In the present case it is not in doubt that the plaintiffs were employed by the Company
and not by the defendant. From the documents on record it is clear that the defendant
was a principal shareholder and a Director of the Company. That does not, per se, make
the defendant liable for the actions or omissions of the Company unless the circumstances
are such that the corporate veil of the Company can be lifted. The case of Mugenyi and
Company Advocates v the Attorney General [1999] 2 EA 199 following Palmers Company
Law volume 1 (22 edition) lists 10 instances in which the veil of corporate personality
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may be lifted or as they put it looking behind the company as a legal persona and these
are:
1. Where companies are in the relationship of holding and subsidiary companies;
2. Where a shareholder has lost the privilege of limited liability and has become
directly liable to certain creditors on the ground that business continued after the
membership had dropped below the legal minimum, to the knowledge of the
shareholder;
3. In certain matters relating to taxation;
4. In the law relating to exchange control;
5. In the law relating to trading with the enemy;
6. In the law of merger control in the United Kingdom;
7. In competition of the European Economic Community;
8. In abuse of law in certain circumstances;
9. Where the device of incorporation is used for some illegal or improper purpose;
and
10. Where the private company is founded on personal relationship between the
members.
In Salomon v Salomon (supra) and Jones and another v Lipman and another [1962] 1 WLR
833 it was held that whereas a registered company is a legal person separate from
its members this veil of incorporation may, however, be lifted in certain cases for
instance, where it is shown that the company was incorporated with or was carrying
on business as no more than a mask or device for enabling the directors to hide
themselves from the eyes of equity. Therefore, if a company is thought to be a mere
cloak or sham, a device or a mask which the defendant holds to his face, in an attempt
to avoid recognition by the eye of equity, the court will grant summary judgement
even against the person behind the said company.
However, the decision to lift the corporate veil will not be lightly undertaken.
In the present case the plaintiffs rely on the fact that the company was a subsidiary
of the defendant and therefore the veil ought to be lifted. Whereas that may be a
ground upon which the veil may be lifted, in my view, it does not necessarily follow
that in all cases where the relationship between two companies is that of a holding
and subsidiary company the veil must be lifted. The circumstances ought to exist as
would justify the conclusion that to permit the holding company to invoke corporate
status of the subsidiary company would be inequitable. In this case the company was
placed in receivership due to its failure to settle its debts to the defendant and to the
Bank. From the evidence on record, it is not possible to attribute the receivership
solely to the defendant in order to conclude that the corporate status of the company
was meant to defraud the plaintiffs. In other words, I am not satisfied there exist
circumstances that would justify the lifting of the corporate veil of the company in
order to find the defendant liable.To make matters worse, from the evidence on record,
it is clear that the defendant was not the sole shareholder of the company. Whereas
the plaintiff ’s evidence was that the defendant bought out the other shareholder and
became the sole shareholder there was no such evidence on record. Without joining
all the shareholders to the suit, it would not be possible even if it was so minded for
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the Court to lift the veil of incorporation and find only one shareholder liable in these
circumstances. The other issue that caused me concern is the fact that the plaintiff
never specifically pleaded and sought the orders for the lifting of the corporate veil.
In my view, in cases where it is sought that the corporate veil of a company be lifted,
there ought to be a specific prayer for the same and the company if in existence ought
to be made a party to the suit. I associate myself with Visram, J (as he then was) in
John Njenga v Bata Shoe Company Limited, Nairobi High Court Civil Case No. 2332
of 1993 that a point that is not pleaded even if canvassed at the hearing cannot be a
basis of a determination.

1.17.2 Scenario 2
The directors can be examined as to what happened to the assets of the company
under Order 22, rule 35(b). They can no longer seek refuge behind the façade of the
corporate veil if they have deliberately misappropriated the company’s assets. One
makes an application seeking to inspect all books of account and other relevant books
such as bank statements.The directors are summoned and if they fail to appear ask that
a warrant of arrest do issue to show cause why they did not appear.
One can also seek a prayer in the application for the lifting of the corporate veil
and have the decree executed against the directors personally.
After a decree is extracted the decree holder can apply under Order 22, rule 35 of
the Civil Procedure Rules to orally examine, in the case of a corporation, any officer
therefor.

Order 22, rule 35 states:

35. Examination of judgment-debtor as to his property [Order 22, rule 35.]
Where a decree is for the payment of money, the decree-holder may apply to the
court for an order that—
(a) the judgment-debtor;
(b) in the case of a corporation, any officer thereof; or
(c) any other person,be orally examined as to whether any or what debts are
owing to the judgment-debtor, and whether the judgment-debtor has any
and what property or means of satisfying the decree, and the court may make
an order for the attendance and examination of such judgment-debtor or
officer, or other person, and for the production of any books or documents.
The Court of Appeal in the case of Charles Ray Makuto v Almakony Limited and
another68 addressed the circumstances when the veil of incorporation can be lifted and
the process of interrogation under Order 22 Rule 35 of the Civil Procedure Rules.

Facts
The appellant obtained judgment for KShs 36,325.00 in a suit filed in the magistrate’s
court in 1995 and thereafter applied for execution of the decree but failed to find
attachable assets in the name of the 1st respondent. The appellant then attempted to

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Pleadings Without Tears- Tips in Civil Litigation 71

attach and sell land registered in the name of the 2nd respondent, a director of the
1st respondent. The 2nd respondent objected to the attachment on the basis that his
property could not be attached for the debts of the 1st respondent, which he contended
was a separate legal entity. Unable to make progress with execution proceedings
in the subordinate court, the appellant moved to the High Court at Bungoma by
Miscellaneous Application No. 267 of 2001 invoking sections 31, 33, 107, 111, 125
and 130 of the now repealed Companies Act seeking an order to “crack the corporate
shell and lift the veil of incorporation” of the 1st respondent with a view to holding
the 2nd respondent liable for the judgment debt against the 1st respondent.That motion
was based on the grounds that the 1st respondent was not a going concern having
failed to satisfy the decree in favour of the appellant; that the 1st respondent is “an
alias agent” with no separate business from that of the 2nd respondent; that the 2nd
respondent contracted personally with the appellant without disclosing his capacity as
an agent of the 1st respondent; that the 1st respondent does not have    official residence
or actual existence as no taxes or annual returns were filed by the 1st respondent;
that investigations with a view to executing the decree revealed that all properties
were registered in the name of the 2nd respondent “leaving the [1st respondent] a
mere trustee of the [2nd respondent]; and that the 1st respondent is a sham.”After
considering the motion and the written submissions the High Court ruled that the
1st and the 2nd respondents were separate legal entities; that the 1st respondent existed
prior to the transaction on the basis of which the judgment debt was incurred; that
it could not be said that the 1st respondent was formed in order to escape liability.
Referring to the English decision in Jones v Lipman [1962] 1 W. L. R. 832, the Judge
concluded that there was no evidence before him to show that the 1st respondent
was “a device and a sham, a mask which [the 2nd respondent] holds before his face in
an attempt to avoid recognition by the eye of equity.” With that, the Judge dismissed
the appellant’s motion precipitating the appeal.
The court held as follows when it dismissed the appeal:
“13. We now turn to the question whether the learned Judge erred in refusing to lift the
corporate veil of the 1st respondent and in declining to hold the 2nd respondent liable
for the judgment debt of the 1st respondent. As already mentioned, the appellant
based his application before the High Court on sections 31, 33, 107, 111, 125 and
130 of the now repealed Companies Act. Section 31 deals with consequence of
default in complying with conditions constituting a company a private company.
Section 33 provides for liability of members if the number of members is reduced,
in the case of a private company, below two. Section 107 requires a company to
have a registered office. Section 111 deals with restriction on commencement of
business. Section 125 requires every company having a share capital to at least once
in every year to make returns with respect to registered office, register of members
and debenture holders’ indebtedness, among other things, and stipulates that every
officer in default is liable to a fine. Section 130 requires holding of general meetings.
14. Clearly none of those statutory provisions of the Companies Act on which the
appellant relied can be said, to use the words of Devlin, J. in Bank voor Handel en
Scheepvaart N.V. v Slatford [1953] 1 Q.B. 248 at 278, to be legislative “sledgehammer
capable of cracking open the corporate shell”. It is no wonder therefore that in his
submissions before the High Court the appellant did not substantially rely on those
statutory provisions but relied on common law as established in case law as a basis
for asking the court to crack the corporate shell of the 1st respondent.
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72 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

15. It is a long-standing legal principle that a company is in law a separate person

distinct from its members. [See Salomon v Salomon [1897] AC 78.] In Victor Mabachi
and another v Nurturn Bates Ltd, civil appeal number 247 of 2005 [2013] eKLR,
the Court held that a company “as a body corporate, is a persona jurisdica, with
separate independent identity in law, distinct from its shareholders, directors and
agents unless there are factors warranting a lifting of the veil.” For example, where
there is fraud or improper conduct, the corporate veil may be lifted.Whether factors
or circumstances exist for warranting the lifting of the veil is a question of fact in
each case.
16. In this case, the substratum of the appellant’s motion in asking the court to lift the
veil of the 1st respondent was that the 2nd respondent had effectively used the 1st
respondent as a vessel of fraud. Sympathetic as we are to the plight of the appellant
to whom the 2nd respondent is truly indebted as decreed by the subordinate court,
the material placed before the High Court fell short of establishing, in our view,
that the 1st respondent was “a device, a stratagem” or a “mere cloak or sham”[1]
by the 2nd respondent to defraud the appellant. Based on our own review of the
material before the High Court, we agree with the learned Judge that:
“From the evidence on record, the applicant sued the 1st respondent which
is a limited liability company. That means he knew he was transacting with
the company. The fact that the 2nd respondent was the managing director of
the company was beside the point. The two were separate legal entities. The
company was apparently in existence prior to the transactions that led to the
suit, and therefore it cannot be said that the respondent formed it so as to escape
liability or to transfer his property to the company to avoid the property being
attached in execution. Further, the applicant has not placed evidence on record
to show that at the time of the transactions that led to the suit the company was
continuing to carry on business and incur debts at a time when the directors
knew that there was no-reasonable prospects of the creditors ever receiving
payment of those debts (Re William c. Leitch Bros Ltd [1932] 2 CH. 71).”
17. The material before the High Court included the certificate of incorporation
of the 1st respondent. On the basis of that certificate, the 1st respondent was
incorporated in 1981. That was many years before the appellant contracted with
the 1st respondent in 1989 to hire the vibrator machine. It cannot therefore be said
that the 1st respondent was a vehicle contrived by the 2nd respondent for purposes
of the transaction that gave rise to the judgment debt.
18. There is perhaps merit in the argument by respondents’ counsel that the appellant
may have rushed in seeking the lifting of the veil of incorporation of the 1st
respondent. Rule 35 of Order 22 of the Civil Procedure Rules has an avenue under
which the appellant would have interrogated the 1st respondent on its assets. That
rule provides that where, as in this case, a decree is for the payment of money:
“… the decree-holder may apply to the court for an order that:-
(a) the judgment-debtor;
(b) in the case of a corporation, any officer thereof; or
(c) any other person, be orally examined as to whether any or what debts are
owing to the judgment-debtor, and whether the judgment-debtor has any
and what property or means of satisfying the decree, and the court may
make an order for the attendance and examination of such judgment-
debtor or officer, or other person, and for the production of any books or
documents.”
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Pleadings Without Tears- Tips in Civil Litigation 73

19. For those reasons, we are not persuaded that we have any basis for interfering
with the decision of the High Court. The appeal therefore fails and is dismissed.
Considering however that the appellant was in its motion before the High Court
effectively seeking enforcement of a judgment in his favour, we think the appropriate
order on costs is that each party shall bear its own costs of the appeal and of the
proceedings in the High Court.’’
In Corporate Insurance Co. Ltd v Savemax Insurance Brokers Ltd69Justice Ringera (as he
then was) dismissed an application for lifting the veil of incorporation and held that
the veil of incorporation is not to be lifted merely because the company has no assets
or it is unable to pay its debts and is thus insolvent.

Facts
The plaintiff filed suit against the first defendant company and enjoined the director
of the first defendant as a second defendant claiming recovery of money collected by
the first defendant on behalf of the plaintiff but not remitted to the plaintiff.The High
Court on application by the plaintiff for judgment on admission, entered judgment for
the plaintiff for part of the claim and struck out the second defendant’s name from the
proceedings because the second defendant could not be held personally liable for the
liabilities of the first defendant. Consequently, the second defendant was awarded costs
of KShs 82, 000. Before extracting the decree, the plaintiff then filed an application
for stay of execution of the costs by the second defendant. The court allowed the
prayer and the amount was deposited in court. The plaintiff further prayed the court
to exactly examine the defendants as to their means to liquidate the decretal sum of
KShs 1,000,000, arguing that the first defendant did not have any known office or
assets that could be attached. The court was therefore asked to lift the corporate veil
to make the second defendant personally liable for the debt.The judge held as follows:
1. An application under the provisions of Order XXI, rule 36 is misconceived if it seeks
the examination of a corporation because a corporation is not amenable to an order
for examination.
2. An application for examination under Order XXI, rule 36 is premature and
incompetent if brought before a decree is extracted. The veil of incorporation may
be lifted where it is shown that the company was incorporated with or was carrying
on business as no more than a cloak, mask or sham, a device or stratagem for enabling
the directors to hide themselves from the eye of equity. The corporate veil can be
lifted at any stage, including execution, in appropriate cases.
3. The veil of incorporation is not to be lifted merely because the company has no
assets or it is unable to pay its debts and is thus insolvent.
The judge once again reiterated the same point of law on lifting the corporate veil at
the execution stage in the case of Ultimate Laboratories v Tasha Bioservice Ltd70. He cited
with approval the English case of Gilford Motor Co. v Horne71 and Jones v Hipman72.
The judge held that the application for the lifting of the corporate veil should also
be grounded on section 3A of the Civil Procedure Act which preserves the inherent

69 [2002] 1 EA 41(CCK)
70 Milimani High Court Civil Case No. 1287 of 2000 (unreported).
71 (1933) Ch. 935
72 [1962]1 W.C.R 832
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74 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

power of the court to make such orders as may be necessary to prevent the abuse of
the court process or for the ends of justice.
However, Justice Odunga was of a contrary view on the lifting of the veil of
incorporation under Order 22, rule 35 of the Civil Procedure Rules. This was in the
case of Michael Kyambati v Principal Magistrate, Milimani Commercial Courts, Nairobi and
another.73

Facts
The applicant herein filed judicial review proceedings seeking orders of certiorari
and prohibition, to quash and prohibit execution proceedings and orders before the
Magistrate’s Court where he was made personally liable for the debts of his company
where he had not been sued personally. The applicant averred that his complaint that
he had been condemned unheard and his constitutional rights violated seemed to
have angered the learned Magistrate because during the further hearing of 9 October
2015 without the application of any of the parties the Magistrate issued a warrant for
his arrest allegedly for failing to appear in Court despite being represented by counsel.
Subsequently, he applied for the warrant of arrest to be lifted. On the said date, the
applicant averred, the said warrants were lifted but instead of the pending application
being heard he was placed in the witness box and asked a few questions about the
finances of the company after which the Court made the following order
“Mr. Michael Kyambati being a Director of the defendant company and there being no
stay order the court orders execution proceedings against him”.
Justice Odunga allowed the judicial review application and held as follows:
“34. On behalf of the applicant it was submitted by Mr Nzamba Kitonga, SC that the
application before the trial Court was brought under Order 22, rule 35 which does
not apply to execution. That the application was expressed to have been brought
under the said provision is not in doubt. The said provision provides as follows:
Where a decree is for the payment of money, the decree- holder may apply to the
court for an order that—
(a) the judgment-debtor;
(b) in the case of a corporation, any officer thereof; or
(c) any other person, be orally examined as to whether any or what debts are
owing to the judgment-debtor, and whether the judgment-debtor has any
and what property or means of satisfying the decree, and the court may make
an order for the attendance and examination of such judgment-debtor or
officer, or other person, and for the production of any books or documents.
35. It is true that the above provision does not expressly provide for the lifting of
the corporate veil. This Court has had occasion to deal with the same provision
in Peter O. Ngoge T/A O P Ngoge and Associates v Ammu Investment Company
Limited [2012] eKLR. In that case the Court expressed itself as follows:
“It is however my view that the lifting of a corporate veil is not the same thing as
an application under Order 22, rule 35 of the Civil Procedure Rules. In the latter
an officer is examined as an agent of the company while in lifting the corporate
veil, the mask of incorporation is lifted with the result that the shareholders are
no longer agents of the company but are treated in their own rights and liability
attaches to them not in their capacity as agents of the company but in their

73 [2016] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 75

personal capacity. The general law, however, is that a corporation is an artificial

legal entity. Accordingly, it must of necessity act through agents, usually the Board
of Directors. In other words, the corporation’s brain is the Board of Directors
who make decisions on behalf of the company. A company may in many ways
be likened to a human body; it also has hands which hold the tools and act
in accordance with the directions from the centre. Some of the people in the
company are mere servants and agents who are nothing more than hands to do
the work and cannot be said to represent the mind or will. Others are directors
and managers who represent the directing mind and will of the company, and
control what it does. The state of mind of these managers is the state of mind
of the company and is treated by law as such. The day to-day management of
the company may, however, be handled by specific officers tasked to do so on
behalf of the Board. However, the ultimate responsibility rests with the directors.
It therefore follows that the management of the corporation must be deemed to
be carried by or on behalf of the Board save in cases where the ultra vires principle
applies. The legal position as regards incorporated entities is well settled. In
Standard Chartered Bank Kenya Limited v Intercom Services Limited and others Civil
Appeal No. 37 of 2003 [2004] 2 KLR 183, the Court of Appeal citing Salomon v
A. Salomon and Company Ltd [1897] AC 22 and Adams vs. Cape Industries Plc [1990]
1 Ch. 433 held that it is a principle of company law of long antiquity that a limited
company has a legal existence independent of its members and that a company
is not an agent of its members. The Court further said that the principle of alter
ego attributes the mental state of company’s directors or other officers to the
company itself in order to fix the company with either criminal or civil liability.
It follows that the mere fact that one is a director or shareholder of a corporation
does not, ipso facto, make the director or shareholder liable for the actions or
omissions of the company unless the circumstances are such that the corporate
veil of the company can be lifted. The case of Mugenyi & Company Advocates v the
Attorney General [1999] 2 EA 199 following Palmers Company Law,Volume 1 (22
ed) lists 10 instances under which the veil of corporate personality may be lifted
or as is sometimes put, look behind the company as a legal persona and these are:
1. Where companies are in the relationship of holding and subsidiary companies;
2. Where a shareholder has lost the privilege of limited liability and has become
directly liable to certain creditors on the ground that business continued after
the membership had dropped below the legal minimum, to the knowledge of
the shareholder;
3. In certain matters relating to taxation;
4. In the law relating to exchange control;
5. In the law relating to trading with the enemy;
6. In the law of merger control in the United Kingdom;
7. In competition of the European Economic Community;
8. In abuse of law in certain circumstances;
9. Where the device of incorporation is used for some illegal or improper
purpose; and
10. Where the private company is founded on personal relationship between the
members.
In Salomon v Salomon (supra) and Jones and another v Lipman and another [1962] 1
WLR 833 it was held that whereas a registered company is a legal person separate
from its members this veil of incorporation may, however, be lifted in certain
cases for instance, where it is shown that the company was incorporated with
or was carrying on business as no more than a mask or device for enabling the
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76 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

directors to hide themselves from the eyes of equity. Therefore, if a company is

thought to be a mere cloak or sham, a device or a mask which the defendant
holds to his face, in an attempt to avoid recognition by the eye of equity, the court
will grant summary judgement even against the person behind the said company.
However, the decision to lift the corporate veil will not be lightly undertaken.
In the present case there is no allegation that the applicant has attempted to
execute against the defendant company and such attempts have failed. The
only allegation made is that the applicant is not aware of the assets of the
respondent. Whereas that may be a ground for invoking the provisions of
Order 22, rule 35 aforesaid, in my view, that does not necessarily satisfy
the conditions stipulated for the lifting of corporate veil of a corporation.
In the premises I am not satisfied there exist, as of now, circumstances that would
justify the lifting of the corporate veil of the company in order to find the directors
of the respondent liable. Further, it is not alleged that Alan Cleophas Mulango, the
director against whom the order of arrest is directed is the sole shareholder and/
or director of the company. Whereas it was submitted that it is this director who
gave instructions, such an averment does not appear anywhere in the affidavit
and even if it were, without seeking orders against all the shareholders and/or
directors, it would not be possible for the Court even if it was so minded to lift the
veil of incorporation and find only one shareholder and/or director liable in these
circumstances. Such an action may be construed to amount to contravention of
article 27 of the Constitution which provides for freedom from discrimination.
“36. Therefore whereas corporate veil may, in appropriate circumstances be lifted, such
remedy cannot be sought under Order 22, rule 35 of the Civil Procedure Rules.
37. It is therefore clear that the learned Magistrate had no jurisdiction under the
said provision to grant orders whose effect were to lift the corporate veil of the
judgement debtor in order to render the applicant personally liable for the debts
of the judgement debtor. Lack of or excess of jurisdiction is clearly one of the
grounds upon which judicial review remedies may be granted.” [emphasis mine]

1.17.3 The Court Can Summon any Officer of the Company

There are occasions where the judgment debtor may object to the summoning of
its officers pursuant to an application made under Order 22, rule 35 of the Civil
Procedure Act. When faced with such opposition fall back on the case of Roseline
Awino Okwach & another v Pan Africa Insurance Company and others.74

Facts
The decree holder filed an application under sections 34, 38, 1A and 1B of the Civil
Procedure Act and article 159 of the Constitution seeking orders, inter alia, compelling
the summoning of the managing directors of two companies and production of various
identified documents with a view to later establishing liability in settling the debt.The
application was opposed and one of the grounds was that the questions sought to be
answered were only capable of address by way of a case stated by way of originating
summons and not by way of a Notice of Motion. Justice H. K. Chemitei allowed the
application and held as follows:
“Lifting the corporate veil
16. The main reason for the application is to call upon the directors,the judgment-debtor

74 [2016] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 77

and the garnishees to be orally examined as to whether the garnishee companies are
liable for the payment of the judgment debt and if so to what extent, and whether the
judgment-debtor has any and what property or means of satisfying the decree herein.
17. As a general rule, courts do not interfere with companies and essentially going by
the principle of separate legal entity laid down in the famous Salomon v Solomon’s
case, but with the passage of time, courts have come to realize that indeed some
promoters and members of companies have formulated and executed fraudulent and
mischievous schemes through the corporate vehicle. See the case of Jones & another
v Lipman and another [1962] 1 WLR 833 where it was held that whereas a registered
company is a legal person separate from its members, the veil of incorporation may,
however, be lifted in certain cases for instance, where it is shown that the company
was incorporated with or was carrying on business as no more than a mask or
device for enabling the directors to hide themselves from the eyes of equity.
18. Paragraph 90 of Halsbury’s Laws of England, 4th Edition details as follows:
“Notwithstanding the effect of a company’s incorporation, in some cases
the court will ‘pierce the corporate veil’ in order to enable it to do justice
by treating a particular company, for the purpose of the litigation before
it, as identical with the person or persons who control that company. This
will be done not only where there is fraud or improper conduct but in
all cases where the character of the company, or the nature of the persons
who control it, is a relevant feature. In such case the court will go behind
the mere status of the company as a separate legal entity distinct from its
shareholders, and will consider who are the persons, as shareholders or
even as agents, directing and controlling the activities of the company.
However, where this is not the position, even though an individual’s
connection with a company may cause a transaction with that company
to be subjected to strict scrutiny, the corporate veil will not be pierced”.
19. In Corporate Insurance Co. Ltd v Savemax Insurance Brokers Ltd and another, High
Court Civil Case No. 125 of 2002 the court stated thus:
“The veil of incorporation is not to be lifted merely because the company
has no assets or it is unable to pay its debts and is thus insolvent. In such
a situation, the law provides for remedies other than the director of the
company being saddled with the debts of the company.”
20. Having set out the principles on lifting a company’s veil, I must also state that
this court has jurisdiction to lift corporate veil. However, the decision to lift
the corporate veil should not be undertaken lightly as it opens the directors or
members of the company to personal liability. In the present case, there is no
formal request for the lifting of the veil. The judgment-debtors have only sought
the appearance of the directors of PA, APA and PAI to be questioned concerning
the transfers between PAI and the Garnishee Companies and the inventory of
assets and liabilities covered in the agreements.
21. Under Order 22, rule 35 of the Civil Procedure Act, 2010 the Court has the
power to summon any officer of a company to attend before it to be examined on
whether any or what debts are owing to the judgment-debtor, and whether the
judgment-debtor has any and what property or means of satisfying the decree. See
Masefield Trading (K) Ltd v Rushmore Company Limited and another [2008] eKLR, on
the Court’s jurisdiction under Order 22, rule 35:
“I think the above rule grants this court jurisdiction to summon any
officer of a company to attend court so that he may be examined on the
assets and means of the company to settle the sum decreed to be paid by
the company. By examining such an officer, the court may or may not lift
the veil of incorporation.”
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78 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

22. It is therefore my finding that summoning the directors to answer the questions
asked would not make them liable and thus will not occasion any liability and
it would shed some light on which of the three companies is liable to pay the
balance of the judgment debt herein.’’

1.17.4 Tips
(a) Prior to filing suit establish the nature of the dispute and the possible reliefs against
the defendant company. Find out if the property in question was held in trust with
a view to bringing a claim against the directors for breach of trust and lifting the
veil of incorporation if evidence is obtained to demonstrate that trust monies were
diverted to the directors’ personal accounts or other accounts not associated with
the company but under the direct or indirect control of the directors. In many
instances, you will find that money leaves an electronic trail that can be followed.
(b) Remember that it is a felony under Chapter 32 of the Penal Code if a company official
fraudulently disposes of trust property. Sections 327 and 328 of the Penal Code state:
327.(1) Any person who, being a trustee of any property, destroys the property
with intent to defraud, or, with intent to defraud, converts the property
to any use not authorized by the trust, is guilty of a felony and is liable to
imprisonment for seven years.
(2) For the purposes of this section, “trustee” includes the following persons
and no others, that is to say –
(a) trustees upon express trusts created by a deed, will, or instrument in
writing, whether for a public or private or charitable purpose;
(b) trustees appointed by or under the authority of any written law for
any such purpose;
(c) the heir or personal representative of any trustee as aforesaid and any
other person upon or to whom any such trust shall devolve or come;
(d) executors, including executors de son tort and administrators;
(e) managers appointed under the authority of the Mental Treatment
Act;
(f) official managers, assignees, liquidators or other like officers, by
whatsoever name called, acting under the authority of any written
law relating to bankruptcy or joint stock companies.
328. Any person who -
(a) being a director or officer of a corporation or company, receives or
possesses himself as such of any of the property of the corporation or
company otherwise than in payment of a just debt or demand, and,
with intent to defraud, omits either to make a full and true entry
thereof in the books and accounts of the corporation or company, or
to cause or direct such an entry to be made therein; or
(b) being a director, officer or member of a corporation or company,
does any of the following acts with intent to defraud, that is to say –
i) destroys, alters, mutilates or falsifies any book, document,
valuable security or account which belongs to the corporation
or company, or any entry in any such book, document or
account, or is privy to any such act; or
(ii) makes, or is privy to making, any false entry in any such book,
document or account; or
(iii) omits, or is privy to omitting, any material particular from any
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Pleadings Without Tears- Tips in Civil Litigation 79

such book, document or account,

is guilty of a felony and is liable to imprisonment for seven years.
Chapter XXXII – Frauds by Trustees and Persons in a Position of Trust, and
False Accounting
327. Fraudulent Disposal of Trust Property
(1) Any person who, being a trustee of any property, destroys the property with
intent to defraud, or, with intent to defraud, converts the property to any use
not authorized by the trust, is guilty of a felony and is liable to imprisonment
for seven years.
(2) For the purposes of this section, “trustee” includes the following persons and
no others, that is to say—
(a) trustees upon express trusts created by a deed, will, or instrument in
writing, whether for a public or private or charitable purpose;
(b) trustees appointed by or under the authority of any written law for any
such purpose;
(c) the heir or personal representative of any trustee as aforesaid and any
other person upon or to whom any such trust shall devolve or come;
(d) executors, including executors de son tort and administrators;
(e) managers appointed under the authority of the Mental Treatment Act
(Cap. 248);
(f) official managers, assignees, liquidators or other like officers, by
whatsoever name called, acting under the authority of any written law
relating to bankruptcy or joint stock companies.
[Act No. 36 of 1962, Sch., Act No. 24 of 1967, Sch.]
328. Fraudulent Appropriation or Accounting by Directors or Officers
Any person who—
(a) being a director or officer of a corporation or company, receives or possesses
himself as such of any of the property of the corporation or company otherwise
than in payment of a just debt or demand, and, with intent to defraud, omits
either to make a full and true entry thereof in the books and accounts of
the corporation or company, or to cause or direct such an entry to be made
therein; or
(b) being a director, officer or member of a corporation or company, does any of
the following acts with intent to defraud, that is to say—
(i) destroys, alters, mutilates or falsifies any book, document, valuable security
or account which belongs to the corporation or company, or any entry in
any such book, document or account, or is privy to any such act; or
(ii) makes, or is privy to making, any false entry in any such book, document
or account; or
(iii) omits, or is privy to omitting, any material particular from any such book,
document or account, is guilty of a felony and is liable to imprisonment
for seven years.
(c) Remember that the veil of incorporation is not to be lifted merely because the
company has no assets or it is unable to pay its debts and is thus insolvent.
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80 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(d) Read the provisions of the Companies Act, 2015 carefully when considering
lifting the veil of incorporation.
(e) Do not attempt to seek orders ex-parte against a director of a company and
make him personally liable when he has not been cross-examined as an officer
of the company.
(f) When making the application under Order 22, rule 35 do remember to:
Seek an order for the attendance and examination of all directors of the
company as per the annual returns filed by the company when the dispute arose.
Seek the production of all the company’s bank statements, books of
accounts, audited accounts and tax returns together with any other relevant
document that may assist in tracing the misappropriation of the funds.

1.18 Garnishee Proceedings – The Illegality of Attaching a Bank’s

Property
One area that is commonly abused is when the decree-holder finds out that the
judgement-debtor maintains an account with a bank and thus makes an application
for attachment of the credit deposit in the account. For ease of reference I will set out
the relevant provisions of Order 23 of the Civil Procedure Rules before I set out the
problem. The step by step method of garnishee proceedings is captured in rules 1 to
4 set out below:
1. Order for the attachment of debts [Order 23, rule 1.]
(1) A court may, upon the ex parte application of a decree-holder, and either before
or after an oral examination of the judgment-debtor, and upon affidavit by the
decree-holder or his advocate, stating that a decree has been issued and that it
is still unsatisfied and to what amount, and that another person is indebted to
the judgment-debtor and is within the jurisdiction, order that all debts (other
than the salary or allowance coming within the provisions of Order 22, rule
42 owing from such third person (hereinafter called the “garnishee”) to the
judgment-debtor shall be attached to answer the decree together with the
costs of the garnishee proceedings; and by the same or any subsequent order it
may be ordered that the garnishee shall appear before the court to show cause
why he should not pay to the decree-holder the debt due from him to the
judgment-debtor or so much thereof as may be sufficient to satisfy the decree
together with the costs aforesaid.
(2) At least seven days before the day of hearing the order nisi shall be served on
the garnishee, and, unless otherwise ordered, on the judgment-debtor.
(3) Service on the judgment-debtor may be made either at the address for service
if the judgment-debtor has appeared in the suit and given an address for service,
or on his advocate if he has appeared by advocate, or if there has been no
appearance then by leaving the order at his usual residence or place of business
or in such manner as the court may direct.
(4) An order nisi shall be in Form No. 16 of Appendix A.
2. Attachment of deposits [Order 23, rule 2.]
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Pleadings Without Tears- Tips in Civil Litigation 81

A credit in a deposit account with a bank or other financial institution shall for the
purposes of this Order be a sum due or accruing and shall be attachable accordingly
notwithstanding that any of the following requirements is applicable to the account
and has not been complied with—
(a) that notice is required before any money is withdrawn;
(b) that a personal application must be made before any money is withdrawn;
(c) that a deposit book must be produced before any money is withdrawn; or
(d) that a receipt for money deposited in the account must be produced before any
money is withdrawn.
3. Effect of garnishee order [Order 23, rule 3.]
Service of an order that debts due to a judgment-debtor liable under a decree shall
be attached, or notice thereof to the garnishee in such manner, as the court may
direct, shall bind such debts in his hands.
4. Execution against garnishee [Order 23, rule 4.]
If the garnishee does not dispute the debt due or claimed to be due from him to
the judgment-debtor, or, if he does not appear upon the day of hearing named in an
order nisi, then the court may order execution against the person and goods of the
garnishee to levy the amount due from him, or so much thereof as may be sufficient
to satisfy the decree, together with the costs of the garnishee proceedings; and the
order absolute shall be in Form No. 17 or 18 of Appendix A, as the case may require.
Société Eram Shipping Co Ltd and others v Compagnie Internationale de Navigation75
The House of Lords dealt with the execution of a third party debt order [previously
known as a garnishee nisi before the English Civil Procedure Rules came into force
in 1999 and departed from the earlier definitions of garnishee order nisi and absolute].
The court considered the instance whether the English court had jurisdiction to
make the third party debt order final where the debts were owing or accruing from
foreign judgment debtors but the third party bank was incorporated and resident
in Hong Kong but having place of residence in England. ‘The judgment debtors
having accounts with the third-party bank in Hong Kong. The House of Lords held
that it was not open to the court to make a third party debt order under CPR Pt 72
in a case where it was clear or it appeared that the making of the order would not
discharge the debt of the third party to the judgment debtor according to the law
which governed that debt. If, however, the English court did have jurisdiction to make
such an order, the objections to its exercising such a jurisdiction to do so would be
very strong on grounds of principle, comity and convenience. The importance which
the Court of Appeal had attached to the supposed availability to the third party of
a restitutionary remedy in Hong Kong if the third party made or was compelled to
make payment to the judgment creditor under an English order appeared to reflect
some misunderstanding of the procedure. The order took effect against the property
of the judgment debtor. The property of the third party was in no way involved, save
by the diminution of its debt to the judgment debtor. If the effect of an order in the

75 [2003] 3 All ER 465

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82 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

instant case would be to compel the third party to disburse its own funds, that would
be a very clear indication that the order was one which should never have been made.
The following excerpts from the judgement are useful in appreciating that it is the
money in the account that is attached and not the property of the bank.
Lord Bingham of Cornhill held:
“[24] To resolve the issues arising between the judgment creditor and the third party
in this appeal it is in my opinion necessary to return to very basic first principles.
A garnishee or third party debt order is a proprietary remedy which operates by
way of attachment against the property of the judgment debtor. The property of
the judgment debtor so attached is the chose in action represented by the debt
of the third party or garnishee to the judgment debtor. On the making of the
interim or nisi order that chose in action is (as it has been variously put) bound,
frozen, attached or charged in the hands of the third party or garnishee. Subject
to any monetary limit which may be specified in the order, the third party is not
entitled to deal with that chose in action by making payment to the judgment
debtor or any other party at his request. When a final or absolute order is made
the third party or garnishee is obliged (subject to any specified monetary limit) to
make payment to the judgment creditor and not to the judgment debtor, but the
debt of the third party to the judgment debtor is discharged pro tanto.’’
Lord Millett held:
“[97] These passages are inconsistent with the notion that the order merely operates
in personam against the person of the judgment creditor and has no effect upon
the debt itself; many of the cases would have been decided differently if this were
the case. A third party debt order requires the third party to pay the debt it owes
to the judgment debtor to the judgment creditor instead—which has no adverse
consequences to it—not merely to pay a sum equal to the debt out of its own
pocket, which could be seriously prejudicial to its interests. This is what justifies
the order, as Lindley, LJ explained in Pritchett v English and Colonial Syndicate
[1899] 2 QB 428 at 433:
‘It is quite true that before that order was made there was no debt owing by [the third
party] to [the judgment creditor]: the debt was owing by [the judgment debtor]; and the
order is, in substance, not an order to pay a debt, but an order on the [third party] to hand
over something in their hands belonging to [the judgment debtor] to [the judgment creditor].’
The discharge of the debt owed by the third party to the judgment debtor is not, therefore,
merely a fortunate consequence of the order but a necessary and integral part of it. It
is what justifies the making of the order and makes it a process of execution against
the assets of the judgment debtor.’’ [emphasis mine]
In the case of Choice Investments Ltd v Jeromnimon,76 Lord Denning, MR explained
the terms, effect and impact surrounding garnishee proceedings. This explanation will
be useful in explaining the mistakes done by advocates when they proceed to attach
the bank’s moveable assets when the bank fails to make the payment after the order is
made absolute.

76 [1981] QB 149 at 154-155, [1981] 1 All ER 225 at 226-227

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Pleadings Without Tears- Tips in Civil Litigation 83

Facts
(The following facts are the case summary by Lord Denning)
A gentleman, Mr Jeromnimon, who lives in a London suburb, owed a company
called Choice Investments Ltd the sum of £982·16 in sterling. He did not pay. So
the company sued him in the Clerkenwell County Court. On 17 January 1980 the
company recovered judgment against him for £982·16 for debt and £52.00 for costs,
making in all £1,034·16. Still he did not pay. The company discovered that he had a
banking account at the Midland Bank in Wigmore Street in which sums were held to
his credit. So on 28 March 1980 the company got a garnishee order nisi against the
bank by which the sums to his credit were attached to answer the judgment. It then
turned out that he had three accounts at the bank with credit balances as follows: (i)
current account, £44·45; (ii) sterling seven-day notice deposit, £4·68, with accrued
interest of £4·27; (iii) United States dollars seven-day notice deposit, $2,358·55, with
$166·04 accrued interest.
Midland Bank Ltd appealed with the judge’s leave against a garnishee order nisi
made by his Honourable Judge Curtis-Raleigh in the Bloomsbury and Marylebone
County Court on 24 July 1980 whereby it was ordered that the bank should exchange
into sterling and thereafter attach such sum in any foreign currency or currencies
standing to the credit of the judgment debtor, Gregory Jeromnimon, as would satisfy
the judgment of £982·16 judgment debt and £52·00 costs obtained by the judgment
creditor, Choice Investments Ltd, on 28 March 1980.
Lord Denning held as follows:
“The question is as to the effect of recent decisions. It is now settled that, if a sum is payable
in this country in a foreign currency, the courts here can give judgment for that sum in
that foreign currency. Is that sum a ‘debt’ which is capable of being attached? In order
to understand the problem, I will first explain what is meant by ‘attaching’ a debt. It is a
mode of execution which was introduced by section 61 of the Common Law Procedure
Act, 1854, since repealed under the Statute Law Revision Act, 1883 and replaced by RSC
Order 49, rule 1. It always applied to money held by a bank for its customer on current
account: see Joachimson v Swiss Bank Corpn [1921] 3 KB 110 at 121, 131, [1921] All ER
Rep 92 at 97, 102. It has been extended now by statute to money held by a bank on
deposit account. The relevant statutory provisions are in section 38 of the Administration
of Justice Act, 1956 and section 143 of the County Courts Act, 1959, which are too long
to set out here. Those who wish can refer to them.”
Garnishee
The word ‘garnishee’ is derived from the Norman-French. It denotes one who is
required to ‘garnish’, that is, to furnish, a creditor with the money to pay off a debt. A
simple instance will suffice. A creditor is owed £100 by a debtor. The debtor does not
pay.The creditor gets judgment against him for the £100. Still the debtor does not pay.
The creditor then discovers that the debtor is a customer of a bank and has £150 at
his bank. The creditor can get a ‘garnishee’ order against the bank by which the bank
is required to pay into court or direct to the creditor, out of its customer’s £150, the
£100 which he owes to the creditor.
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84 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

There are two steps in the process. The first is a garnishee order nisi. Nisi is
Norman-French. It means ‘unless’. It is an order on the bank to pay the £100 to the
judgment creditor or into court within a stated time unless there is some sufficient
reason why the bank should not do so. Such reason may exist if the bank disputes its
indebtedness to the customer for one reason or other. Or if payment to this creditor
might be unfair by preferring him to other creditors: see Pritchard v Westminster Bank
Ltd [1969] 1 All ER 999, [1969] 1 WLR 547 and Rainbow v Moorgate Properties Ltd
[1975] 2 All ER 821, [1975] 1 WLR 788. If no sufficient reason appears, the garnishee
order is made absolute, to pay to the judgment creditor, or into court, whichever is the
more appropriate. On making the payment, the bank gets a good discharge from its
indebtedness to its own customer, just as if he himself directed the bank to pay it. If it
is a deposit on seven days’ notice, the order nisi operates as the notice.
As soon as the garnishee order nisi is served on the bank, it operates as an injunction.
It prevents the bank from paying the money to its customer until the garnishee order
is made absolute, or is discharged, as the case may be. It binds the debt in the hands of
the garnishee, that is, creates a charge in favour of the judgment creditor: see Joachimson
v Swiss Bank Corpn [1921] 3 KB 110 at 131, [1921] All ER Rep 92 at 102, per
Atkin, LJ. The money at the bank is then said to be ‘attached’, again derived from
Norman-French. But the ‘attachment’ is not an order to pay. It only freezes the sum in
the hands of the bank until the order is made absolute or is discharged. It is only when
the order is made absolute that the bank is liable to pay.

1.18.1 An Account Subject to a Lien by Way of Legal Charge Cannot be Garnisheed

if the Charge Debt has not been Paid

Barclays Bank of Kenya Ltd v Kepha Nyabera and 191 others and another77
The Court of Appeal held that where a bank had security over the funds in the
account, then the judgment creditor can only access the funds to the extent that the
security interest of the bank is covered. A bank’s right under the terms of the legal
charge prevailed against the garnishee order nisi.

Facts
The 1st respondent (plaintiff in the High Court having obtained judgment for KShs
43,000,000) moved the High Court under Order XXII rule 1 and 1(a) of the
former Civil Procedure Rules, seeking to attach the amounts held by the judgment
debtor at the Co-operative Bank of Kenya and Barclays Bank of Kenya, Nakuru East
Branch by way of garnishee order. The High Court issued a garnishee order nisi
(subsequently made absolute) against the appellant and Co-operative Bank. The order
nisi prohibited the banks from obeying any mandate issued by the 2nd respondent
pending the hearing and determination of the garnishee proceedings. On its part,
the Co-operative Bank and the 1st respondent entered into a consent whereby
the sum of KShs 35,055 being held by the Co-operative Bank was released to the
1st respondents.The appellant bank had a credit sum of KShs 2,806,636.65 in favour of
the 2nd respondent judgment debtor in Account No. 2009627. The appellant disputed
the garnishee order issued against it as the judgment debtor owed to the bank the

77 [2013] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 85

sum of KShs 740,679,040.89 and in any event the bank had a charge over some
properties when the loan in the sum of KShs 77,200,000.00 was advanced to the
2nd respondent and that as per clause 18 of the charge, the bank had the right to
combine, consolidate all and any of the judgment debtor’s accounts held with the
bank and set-off or transfer any standing amount therein to the credit of any one or
more of such accounts towards the satisfaction of any moneys, obligations or liabilities
of the judgment debtor to the bank whether present, actual, contingent, primary,
collateral, joint and/or several.
Finally, the appellant submitted that the bank was indeed the creditor of the
judgment debtor. He also attached a demand letter dated 17 March 2006 from the
appellants to the 2nd respondent. The High Court judge allowed the garnishee order
to be made absolute and held as follows:
“I therefore agree with the submissions made by Mr. Karanja that by the time the
garnishee order nisi was issued by this court on 10 May 2006 the provision of
clause 8 of the charge instrument had not accrued and neither has it accrued to
date because the garnishee has made no effort to realize the securities charged to
it by the defendant/judgment debtor. It is therefore clear that the resistance by the
garnishee to give effect to the garnishee order issued by this court has been made
with the active connivance of the defendant/judgment debtor. I find no merit with
the objection by the garnishee to give effect to the order nisi issued by this court on
10 May 2006. I therefore order that the garnishee do with immediate effect release
the said sum of KShs 2,806,636/65 to the plaintiffs/decree holders in compliance
with the garnishee order issued by this Court.”
The bank appealed and the Court of Appeal allowed the appeal and held as follows:
“25. A judgment creditor has no greater rights in the judgment debtor’s assets held
by the garnishee than the judgment debtor does. In the present case, the 1st
respondent has no greater right than the judgment debtor (2nd respondent) had
to the funds held by the appellant bank. The rights of the 1st respondent over
the funds held by the appellant bank are co-extensive and limited to the exact
rights that the judgment debtor had over the funds. What were the rights of the
judgment debtor in relation to the accounts held by the appellant bank?
26. The rights of the judgment debtor are contractual rights that govern the
relationship between the 2nd respondent and the appellant in their capacity of
bank/customer relationship with the bank having security over liabilities of the
2nd respondent. The appellant bank was a secured creditor. A secured creditor
with a perfected security interest in a deposit account has rights that are superior
to a subsequent judgment (unsecured) creditor. The situation is different if the
garnishee creditor is not secured. In such a case, the judgment creditor with a
garnishee order would rank in priority. The 2nd respondent’s rights to the funds
held by the appellant bank were subject to the bank’s security interest. Failure to
exercise set-off or combination of accounts does not result in subordination of
those rights to the rights of a judgment creditor.
27. Banks have the latitude to allow their indebted depositors to have a reasonable
access to funds which may enable them to continue to operate and generate
revenue that may be applied to their existing indebtedness.The failure to combine
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86 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

or set off an account does not permit a garnishing judgment creditor to assume
senior status.
28. In the present case, the record shows that the appellant allowed the 2nd respondent
to operate the account as a fuel and lubricant account. The funds in this account
were subject to the bank’s securities as perfected by the registered charge
instrument. The rights of the 1st respondent as a judgment creditor was subject to
the bank’s security.
29. A security is not a separate and distinct transaction from the debt to which it
relates.This was so held in Bank of New Zealand v Harry M. Miller and Co. Ltd (1992)
26 N.S.W.L.R. 48. We adopt this position. The loan account as well as the fuel
and lubricant accounts held by the appellant are not distinct transaction. They
are both covered by the charge instrument created by the judgment debtor, the
2nd respondent herein.
30. In the instant case, the normal bank/customer relationship ceased to exist
between the appellant and the 2nd respondent after service of the decree nisi.
From the expression of clause 8(g), service of the garnishee order nisi ended the
banker/customer relationship subsequently converting it to a chargor/chargee
relationship. The appellant’s rights under clause 8(g) of the charge accrued when
the charge instrument was registered. The clause was activated when the decree
nisi was issued. The clause crystallized when the decree nisi was served.   In other
words, clause 8(g) is analogous to a floating charge and crystallizes when the
decree nisi is served.
31. The evidence demonstrates that the 2nd respondent is indebted to the appellant
and not vice versa. The learned Judge did not direct his mind to the fact that the
relationship between the appellant and the 2nd respondent was a bank/customer
relationship juxtaposed on a chargor/charge relationship.
32. The judge erred in failing to appreciate that the decree order nisi activated clause
8(g) of the charge instrument. The judge erred in failing to appreciate that the
rights of a garnishing creditor are similar in nature and co-extensive to the rights
of the judgment debtor over the funds held by the appellant bank. If the appellant
had security over the funds in the account, then the judgment creditors can only
access the funds to the extent that the security interest of the bank is covered.
33. We note that the contractual documents underpinning the credit facilities
to the 2nd respondent namely the charge expressly provided for the right of
combination, consolidation and set-off by the bank. A good case in point is clause
18 of the charge. Under that clause, the bank was given an express right to set-off
or combine accounts without notice to the 2nd respondent. Clause 18 reads as
follows: -
“The chargee may at any time and without notice to the chargor combine
or consolidate all or any of the chargor’s accounts with the chargee and set
off or transfer any sum standing to the credit of any one or more of those
accounts in or towards satisfaction of any moneys, obligations or liabilities
of the chargor to the chargee whether those liabilities be present, future,
actual, contingent, primary, collateral, joint or several and the chargor
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Pleadings Without Tears- Tips in Civil Litigation 87

expressly waives, so far as is permitted by law, all rights of set off which it
may now or hereafter have against the chargee.”
34. At paragraph 29.16 of Paget’s Law of Banking, 13th Edition, it is stated that the
banker may combine two current accounts at any time without notice to the
customer even though the accounts are maintained at different branches.
35. We are also guided by the passage in Paget’s Law of Banking, supra, paragraph
29.13 where it is stated thus:
“Right of bankers of set-off which is right of combination or of consolidation
of accounts is but the manifestation of a right analogous to the exercise of the
banker’s right of lien, a right which is of general application and not in principle
limited to account or other similar accounts.”
36. This position is further buttressed by paragraph 395 of the Halsbury’s Laws of
England, 3rd Edition, which states as follows: -
“unless precluded by agreement or course of business, a banker is entitled
to combine all accounts kept in the same right by the customer, whether
deposit or current, and whether at the same branch or different branches, and
to exercise his lien or set off for the resulting balance.”
37. Further, in Sheldon’s, Practice and Law of Banking, it is stated that: -
“Before paying the balance to the judgment creditor or into court, as the
case may be, the banker is entitled to deduct from the balance any debts due
to him from the customer which existed as the date of the order, and for this
purpose he can combine all the customer’s accounts, which he previously
could have set off without notice to the customer.”
38. Thus, in circumstances where a bank has a loan account and also a current
account in credit with the same customer and holds security for the ultimate
balance, the banker is at liberty to combine and consolidate the accounts and set
off the accounts. In the instant case, it is very clear that the 2nd respondent had
given the right to the appellant to consolidate and set off any sum standing to the
credit of any one or more of those accounts in or towards the satisfaction of any
liabilities due to it.’’

1.18.2 Can You Garnishee Money Deposited in Court?

A Deputy Registrar could not be a garnishee where the money is deposited pursuant
to a court order pending the finalisation of the suit or the making of further orders
governing the release of the monies.
In the case of National Industrial Credit Ltd v Mindi Estates Ltd and others,78 the
court held that for one to be a garnishee, he must be indebted to the judgement
debtor. The Deputy Registrar could not be regarded as a debtor to the judgement
debtor. The deposit was not an amount due and owing to the debtor by the Deputy
Registrar: it was a deposit lying with the Registrar subject to the jurisdiction of the
Court of Appeal and could not be released until the judgement-debtor had complied
with the terms of the order of the Court of Appeal.

78 [2002] eKLR
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88 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Facts
In Civil Appeal No. 27 of 1999 between the Government of the United States of
America and Joseph Muiruri Githongo, the Court of Appeal on 14 July 2000 ordered
Mr. Githongo to transfer to the Government of the United States within 90 days
from 14 July 2000 certain properties in Spring Valley, Nairobi. The Court also ordered
the Government of the United States to deposit with the Deputy Registrar of the
Court of Appeal for the benefit of Mr. Githongo any sums that upon the exercise of
the said Government’s option to purchase on the dates identified may be certified by
the Deputy Registrar as due to him under the lease purchase agreement between the
parties. The Government of the United States deposited with the Deputy Registrar
the sum of KShs 2,669,155.80.
National Industrial Credit Bank Ltd, the plaintiff, obtained a decree against, inter
alia, Joseph Muiruri Githongo in the sum of KShs 20,281,566.00. The Bank then
obtained information that the Deputy Registrar of the Court of Appeal was holding
a deposit in the sum of KShs 2,669,155.80 in favour of the said Mr. Githongo, its
judgement debtor. On the basis of that information it applied for an order of garnishee
to be made against the Deputy Registrar in respect of the said deposit. On 9 October
2001 this court granted the Bank an order nisi and the same was made absolute on
16 October 2001 after the court was satisfied that the garnishee had been served with
the order nisi but had failed to attend court to show cause why the order should not
be made absolute.
On 5 December 2001, the Government of the United States of America moved
the Court for orders, inter alia, that it be joined in the proceedings as an interested
party and that the decree orders nisi and absolute be reviewed, vacated and set aside.
Justice Ringera (as he then was) allowed the setting aside of the decree order absolute
and held as follows:
“From the above submissions it appears to me that the issues to answer in this application
are two. First, whether or not the Government of the United States of America is entitled
to be heard on the application and secondly, whether or not the Deputy Registrar of the
Court of Appeal was a garnishee in the circumstances of this case. As regards the first issue
I think the Government of the United States was entitled to be heard for three reasons.
First, it had been joined in the proceedings as an interested party. If it could not be heard,
the order for joinder would have been a vain one. It would be to stand reason on its head
to join a person as a party to proceedings and then decline to hear him. Secondly, the
ultimate orders sought in the application were for review of the decree orders nisi and
absolute. Section 80 of the Civil Procedure Act is explicit that any person aggrieved by
an order from which either no appeal lies or an appeal lies but none has been preferred
may apply for review of the same. The Government of the United States of America is
such a party and has applied for review. Thirdly, the money garnisheed was deposited by
the said Government. It strikes me as being contrary to natural justice to make adverse
orders affecting the property of the Government of the United States of America and
decline to hear it when it seeks to be heard.This is the kind of situation which would have
invited the court to invoke its inherent powers under section 3A of the Civil Procedure
Act if there was no other legal basis for hearing the applicant. So all in all I find that the
Government of the United States of America was entitled to be heard and was properly
heard on this application.
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Pleadings Without Tears- Tips in Civil Litigation 89

As regards the second issue I am persuaded that the Deputy Registrar of the Court
of Appeal was not and could not be a garnishee. For one to be a garnishee, he must
be indebted to the judgement debtor. The Deputy Registrar could not in anywise be
regarded as a debtor to the judgement debtor. The deposit was not an amount due and
owing to the debtor by the Deputy-Registrar: it was a deposit lying with the Registrar
subject to the jurisdiction of the Court of Appeal and could not be released until the
judgement-debtor had complied with the terms of the order of the Court of Appeal. I
am also now of the persuasion that had the rules committee intended that deposits with
the Deputy Registrar of the Court be attachable, they would have so provided. In that
regard it is not insignificant that credit deposits with a bank or a building society are made
expressly attachable by Order 22 rule 1A. The present case is an appropriate one for the
invocation of the maxim expressio unius, est exclusion alterius.
Having taken the above view of the matter, I am impelled to conclude that the applicant has
shown that the garnishee orders nisi and absolute given herein before were misconceived.
That in my opinion constitutes sufficient reason to review them.The same are accordingly
reviewed and set aside with costs to the Government of the United States of America.’’

1.18.3 Tips
In practice, many banks, upon being served with the garnishee order nisi forget to
instruct an advocate to simply appear in court and provide evidence of the credit
balance in the account considering that the time limit of 7 days shall quickly lapse.
Upon the expiry of the 7 days the decree holder then moves back to court and has the
order made absolute. Remember that at this stage neither the decree holder nor the
court has any evidence regarding the credit balance in the account. The decree holder
then files an execution application against the bank as a garnishee and an auctioneer
moves with haste to attach the bank’s property to the full extent of the decretal balance,
costs and the auctioneer’s fees. Most auctioneers delight in this exercise as they see the
attachment as easy pickings where their fees will be paid by the bank.
Even though the bank never appeared, the issues many advocates forget are as
follows:
a) What can be attached is the money in the account and not the bank’s property.
b) It is unlawful to attach the bank’s property without first ascertaining the amount
in the account and if the same is available to be attached.
c) The risk in attaching a bank’s property before ascertaining the amount in the
account may invite a suit for damages for trespass.
When faced with a situation where the order is made decree order nisi is made absolute
against the bank, the better option would be to:
1. Summon the bank manager and seek an order for the production of the statement
of account showing the balance in the account when the order was decree order
nisi was issued. It is rare for a bank to refuse to obey such summons and an order
for production of the bank statements of account.
2. If the bank allowed the judgment debtor to withdraw funds when the decree
order nisi was served, then the bank acted in contempt of the court order. The
judgement creditor can institute contempt proceedings. The court will make
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90 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

appropriate orders to punish the bank including paying the amount that was paid
out in contravention of the decree order nisi.
Banks are advised to quickly respond when served with decree orders nisi to avoid
expensive litigation that may occur when they ignore or inadvertently forget to act on
the order nisi.The only happy party will be the bank’s advocate who will be instructed
to salvage the bank’s expensive mistake in ignoring the order nisi and the auctioneers
come knocking.

1.19 Limitation – Does a Decree or Order for Eviction Become

Time-Barred?
The Limitation of Actions Act, Chapter 22 of the Laws of Kenya sets out the various
limitation periods for causes of actions or execution of decrees and orders. Section 4
of the Limitation of Actions Act is as follows:
4. Actions of contract and tort and certain other actions
(1) The following actions may not be brought after the end of six years from the
date on which the cause of action accrued—
(a) actions founded on contract;
(b) actions to enforce a recognizance;
(c) actions to enforce an award;
(d) actions to recover a sum recoverable by virtue of a written law, other than a
penalty or forfeiture or sum by way of penalty or forfeiture;
(e) actions, including actions claiming equitable relief, for which no other
period of limitation is provided by this Act or by any other written law.
(2) An action founded on tort may not be brought after the end of three years from
the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of
twelve months from such date.
(3) An action for an account may not be brought in respect of any matter which arose
more than six years before the commencement of the action.
(4) An action may not be brought upon a judgment after the end of twelve years
from the date on which the judgment was delivered, or (where the judgment or
a subsequent order directs any payment of money or the delivery of any property
to be made at a certain date or at recurring periods) the date of the default in
making the payment or delivery in question, and no arrears of interest in respect of
a judgment debt may be recovered after the expiration of six years from the date
on which the interest became due.
(5) An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture
recoverable by virtue of a written law may not be brought after the end of two
years from the date on which the cause of action accrued.
(6) This section does not apply to a cause of action within the Admiralty jurisdiction
of the court which is enforceable in rem, except that subsection (1) of this section
applies to an action to recover seamen’s wages.
I recall reading in the papers a while back where execution of a decree was made
seeking to commit a judgment debtor to civil jail on account of a decree that was
more than 12 years old. The interesting thing was that neither the court nor the
advocates for both parties had read section 4(4) of the Limitation of Actions Act that
which allowed the judgment debtor to go scot free.
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Pleadings Without Tears- Tips in Civil Litigation 91

The Court of Appeal addressed this issue in the case of Malakwen arap Maswai v
Paul Kosgei.79 The main issue was whether enforcing a judgment after twelve years
was captured by limitation. The decree holder was faced with this objection when
attempting to enforce an order for eviction brought 16 years after the order was made.

Facts
The suit was commenced in 1977 and the appeal was determined in 2004, after a
period of some twenty-seven years.
The dispute was in respect of land which the appellant claimed to have purchased
in 1973 and paid the full purchase price. He took possession of the land, fenced it and
started to develop it but the vendor declined to transfer the land. In his defence before
the High Court the vendor alleged that no consent of the relevant Land Control
Board had been obtained thus making the contract void by virtue of the provisions
of the Land Control Act, Chapter 302. In 1979 a consent order was recorded in the
High Court directing the appellant to vacate the suit land and remove the cedar plants
and fencing.
The appellant filed an application to review the consent order but was unsuccessful
as the court dismissed the review application in 1980 as the court found that the
settlement was binding.There was no appeal from the order dismissing the review and
the Court of Appeal found that the consent order recorded in 1979 still remained in
force undisturbed.
Following the dismissal of his application for review, the appellant filed Civil
Case No. 320 of 1980 in the Court of the Resident Magistrate at Eldoret. That case
was in turn referred to the District Commissioner for Nandi District who heard
it together with some forty-seven elders. They gave their decision dated 14 April
1981 and awarded the land to the appellant. The land was thereafter registered in the
appellant’s name and that was the position as at 6 February 2001, when Nambuye, J
made her decision that led to the appeal.The judge granted orders for eviction and the
defendant was allowed to initiate the necessary legal process to have the title reversed
and reverted to his name.
The appellant appealed and his main ground was that the judge erred in law and
in fact in failing to find that the respondent was barred by the Limitation of Actions
Act (Chapter 22, Laws of Kenya) from executing a judgment more than twelve years
after it was delivered.
The Court of Appeal allowed the appeal and held as follows when considering the
impact of section 4(4) of the Limitation of Actions Act:
“Mr. Lilan submitted before us, as he did before Nambuye, J that the judgment the
respondent was seeking to enforce was the consent order made in the case on 23
October 1979. The appellant had applied to the High Court to review the consent
order but by his ruling made on 27 June 1980, Mead, J had refused to review the
order and Mr. Lilan contended that time for the respondent to enforce the order for
eviction of the appellant from the disputed land started to run for the respondent, at
the very latest, from the date when Mead, J refused the application for review. The

79 Civil Appeal No. 230 of 2001 (CA Eldoret) also reported in [2004] eKLR
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92 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

twelve years provided under section 4(4) of the Limitation of Actions Act, lapsed
on 26 June 1992 and accordingly, urged Mr. Lilan, the respondent was squarely
caught by the provisions of section 4(4) above. The respondent’s notice of motion
to enforce the judgment was not brought to court until 20 June 1995, nearly four
years after the twelve years had lapsed. The learned Judge did not say anything on
this issue and she appears to have concentrated on the appellant’s efforts to avoid the
judgment. We asked Mr. Lilan whether an application to enforce a judgment is itself
an “action” and Mr. Lilan said that was so. He first relied on the definition of the
term “action” in section 3 of the Interpretation and General Provisions Act, Chapter
2 of the Laws of Kenya. There the term “action” is defined as meaning:–
“……… any civil proceedings in a court and includes any suit as defined in
section 2 of the Civil Procedure Act.” Section 2 of the Civil Procedure Act
defines a suit as meaning – “…………all civil proceedings commenced in
any manner prescribed.”
So it would appear that the term “action” is wider than the term “suit” since the latter
term is included in the term action. Based on the interpretation, the respondent’s
notice of motion for the eviction of the appellant would qualify as “an action”. We
would also rely on the authorities cited both before us and before the learned Judge.
Both Lamb and Sons Ltd. v Rider [1948] 2 All E.R. 402 and Lougher v Donovan [1948]
2 ALL E.R. 11 dealt with similar provisions under the relevant English statutes. It was
held in both cases that an action to enforce a judgment after the twelve-year period is
statute barred. Locally, the point was conclusively determined in the case of Njuguna
v Njau [1981] KLR 225 where this Court held that “action” in the context of section
4(4) of Chapter 22 is not intended to bear a restricted meaning and therefore embraces
all kinds of civil proceedings including execution proceedings. We are satisfied Mr.
Lilan is right on this point and Mr. A.G.N. Kamau who argued the respondent’s
appeal before us merely contended that the respondent could not have enforced the
judgment earlier because he had been faced with powerful personalities with whom
the appellant had aligned himself. It is true the appellant had powerful personalities
lined up behind him but that really cannot be a valid answer to an issue of law. Even
in 1995 when the respondent filed his notice of motion to enforce the judgment, the
powerful personalities behind the appellant had not disappeared from the scene. We
think this appeal must succeed on this point.’’

1.19.1 Tips

(a) Always try and execute the decree within the period of 12 years from the date
of judgment.

(b) Remember to read the provisions of the Limitation of Actions Act carefully
especially section 4(4) that deals with the arrears of interest. It reads “…and
no arrears of interest in respect of a judgment debt may be recovered after the
expiration of six years from the date on which the interest became due.’’
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Pleadings Without Tears- Tips in Civil Litigation 93

1.20 Payment of Auctioneers’ Fees Upon Proclamation/Attachment -

Should they be Based on Value of Goods Attached or the Decretal
Sum?
This is one area that has caused concern when the party paying the auctioneer’s fees
is faced with a colossal fee note especially when the decretal sum is in the millions.
The practice has been for auctioneers to base their fees on the decretal sum and not
the value of the goods that were proclaimed. This has led to unjust enrichment in
many instances when the auctioneer had done nothing more than carry out a general
proclamation without even stating the value of the goods attached.
One must first understand the Auctioneers Rules, 1997 to appreciate the
chronology of steps undertaken by the auctioneer that determine how his fees are
paid. The following specific Rules in the Auctioneers Rules explain the process of
proclamation and attachment.

1. Rule 6 - the auctioneer shall keep a register of all warrants and letters of instruction
passed to him by a client, and shall record in it, inter alia, an itemised inventory of the
property to be sold showing the value to be placed on each lot; date the warrant was
returned to the court; the date and amount of the proceeds of any sale forwarded to
the court, or to the creditor, or his advocate; the amount realised in respect of each
item sold and the charges levied by the auctioneer.

2. Rule 12 - Upon receipt of a court warrant or letter of instruction the auctioneer

shall, inter alia, record the court warrant or letter of instruction in the register, prepare
a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and
the condition of each item, such inventory to be signed by the owner of the goods or
an adult person residing or working at the premises where the goods are attached
or repossessed, and where any person refuses to sign such inventory the auctioneer
shall sign a certificate to that effect [emphasis mine].

3. Rule 16 - An advertisement by an auctioneer shall, inter alia, in addition to any other

matter required by the court, disclose whether or not the items are to be sold subject
to a reserve price and the exact amount of any reserve price.

4. Rule 18 addresses the proceeds of sale. The auctioneer shall remit the proceeds
of sale less his charges to the court or the instructing party, as the case may be,
accompanied by an itemised account in the case of movable property within fifteen
days of the sale and in the case of immovable property as provided under Order 21,
rule 74 of the Civil Procedure Rules.

From an evaluation of the above Rules, the following issues emerge:

1. An auctioneer’s fees are based on the value of the goods attached and not on
the decretal amount.The advocates costs are based on the decretal amount and
governed by the Advocates Act and Remuneration Order. It is illegal for some
auctioneers to base their fees on the decretal amount and not the value of the
goods that they proclaimed.

2. The Auctioneers Rules clearly state that once the goods are sold the auctioneer
shall deduct his fees from the sale proceeds. This is final proof that the
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94 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

auctioneer’s fees are based on the final purchase price after the goods are sold.

The matter was finally laid to rest by the Court of Appeal in the case of National
Industrial Credit Bank Limited v S.K Ndegwa.80
In this case the auctioneer taxed his fees based on the decretal sum of KShs
75,772,501.50 and not on the value of the attached goods.
The court held:

The wording of paragraph 4 of Part II of the Fourth Schedule of the Auctioneers Rules,
1997 does not say that the percentages stated apply to the decretal amount. It would be
unjust to base the fee on attachment on the decretal amount because in some cases, the
value of the attached goods may be many times less than the decretal amount shown in
the warrant of attachment and sale.

The main object of paragraph 4 is intended to provide values on the basis of which the
auctioneer’s charges or attachment should be based on the value of the goods attached and
not on the decretal sum.

It is to be remembered that the auctioneer is to be remunerated for the actual work done
and not on the basis of what he could have done had he attached goods equivalent in value
to the decretal sum.

1.21 Review
Order 45, rule 1 provides for an aggrieved party to apply for review of a decree or an
order. When the application is filed the applicant often fails to extract the decree or
order. An astute adversary will apply to have the application dismissed simply because
the decree or order has not been extracted and attached to the application.
Order 45, rules 1 and 2 read:

(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who
from the discovery of new and important matter or evidence which, after
the exercise of due diligence, was not within his knowledge or could not
be produced by him at the time when the decree was passed or the order
made, or on account of some mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain a review of the
decree or order, may apply for a review of judgment to the court which
passed the decree or made the order without unreasonable delay.

(2) A party who is not appealing from a decree or order may apply for a review of
judgment notwithstanding the pendency of an appeal by some other party except
where the ground of such appeal is common to the applicant and the appellant, or

80 Nairobi Civil Appeal No. 195 of 2004.The writer was involved in this matter in the Court of Appeal with his
former partner. This decision was followed by Justice Waweru in the case of Ostrich Lion Auctioneers V Paul
Muchiri [2007] eKLR where he set aside the taxation of the deputy registrar who erred on principle when
assessing the Auctioneer’s fees.
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Pleadings Without Tears- Tips in Civil Litigation 95

when, being respondent, he can present to the appellate court the case on which
he applies for the review.

The Court of Appeal for Eastern Africa first considered this issue in 1930 in the
case of Gulamhusein M. Jivanji and another v Ebrahim M. Jivanji and another 81. The
Court held at pages 44-45:
“Apart from any consideration whether the course adopted by the learned Judge
in relation to the ex parte order of 8 July 1930, was or was not well founded, the
question emerges as to the precise character of the grievance, which must be
experienced by a person applying for a review of a judgment under Order XLII.
A person applying for a review under that Order must be “aggrieved by the
decree or order.” The words “decree” and “order” are here used in the sense set
out in the definitions section 2 of the Civil Procedure Ordinance. Each decree
necessarily follows the judgment upon which it is grounded and if a person is
aggrieved at the decree his application should be for a review of the judgment
upon which it is based. But in my opinion, however aggrieved a person may
be at that various expressions contained in the judgment or even at various
rulings embodied therein, unless that person is aggrieved at the formal decree
or the formal order based upon the judgment as a whole, that person cannot
under Order XLII appear before the Judge who passed the judgment and argue
whether this or that passage in the judgment is tenable or untenable. The ratio
decidendi expressed in a judgment cannot be called in question in review unless
the resultant decree is a source of legitimate grievance to a party to the suit. In
these proceedings no resultant decree on 29 August 1930, had yet come into
existence. Indeed, no attempt to draw up any has as yet been made. It is the
duty of a party who wishes to appeal against, or apply for a review of, a decree
or order to move the Court to draw up and issue the formal decree or order.”
This case has been followed in the High Court case of Uhuru Highway Development
Limited v Central Bank of Kenya and others.82

1.21.1 Failure to Extract the Decree or Order not Fatal to an Application for Review

However, the court, in the case of Jan Bolden Nielsen v Herman Philipus Steyn and 2
others83 departed from the strict interpretation of the earlier decisions. The respondent
to the application argued that as the order sought to be reviewed had not been
extracted, then that made the application fatally defective. The court ruled as follows
on this point:

“9. Before addressing the merits of the application, Mr. Oraro, learned Counsel for
the plaintiff, raised a jurisdictional issue which must first be addressed. It was
contended by the plaintiff that the application was incompetent as the order
sought to be reviewed had not been extracted. The cases of Jivanji v Jivanji
(supra) and Mbugua v Henderson and others (supra) were cited in support of that
contention. In the former case, the court observed that it is the duty of a party
who wishes to appeal or apply for a review of a decree or order to move the
court to draw up and issue a formal decree or order. Similarly, in the Mbugua

81 Law Reports of Kenya 1929-30 volume 12, page 41

82 Milimani HCCC No. 29 of 1995 (unreported)
83 [2013] eKLR
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96 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

case (supra), after analyzing a litany of cases, the court held that failure to annex
the decree or order sought to be reviewed in an application for review was
fatal and incurable. In both cases, the court seemed to suggest that there is no
jurisdiction to entertain an application for review if a formal order or decree
has not been extracted and exhibited with the application for review. Indeed,
that is the position the courts seem to have taken in other cases such as Dr.Peter
Malande Olindo and another v Diamond Trust Bank Kenya Ltd, High Court Civil
Case No.1230 of 1999 (UR) and Uhuru Highway Development Ltd v CBK, High
Court Civil Case No.29 of 1995 (UR). In the present case, the 3rd defendant
did not exhibit leave alone extract the order resultant from the ruling of 10
December 2012. What is then the fate of the application?

10. A decree or order is a formal expression of the final determination of a dispute

resultant from a judgment or a ruling. It is the decree or order which finally
gives effect to any given decision of a court. A judgment or ruling cannot be
executed. In this regard, both section 80 of the Civil Procedure Act and Order
45, rule 1 of the Civil Procedure Rules provide that: -
“Any person considering himself aggrieved –
a) by a decree or order from which an appeal is allowed, but from which
no appeal has been preferred; or
b) by a decree or order from which no appeal is hereby allowed, and who
from the discovery of new and important matter or evidence which,
after the exercise of due diligence, was not within his knowledge or
could not be produced by him at the time when the decree was passed
or the order made, or on account of some mistake or error apparent
on the face of the record, or for any other sufficient reason, desires
to obtain a review of the decree or order, may apply for a review of
judgment to the court which passed the decree or made the order without
unreasonable delay.” (Emphasis supplied)

11. In my view the operative words in those provisions are “may apply for a review
of judgment to the court which passed the decree or made the order.” What
is to be reviewed is not the decree or order but the judgment. In this regard,
judgment will extend to include a ruling. I say so because, whilst section 2 of
the Civil Procedure Act has defined both the terms “decree” and “judgment”,
it has not done so for the terms “order” and “ruling”. I have also looked at the
provisions of Order 21 of the Civil Procedure Rules, the same also provides
for “Judgment” and “decree” but has not done so for the terms “ruling” or
“order”. The conclusion I come to is that in using the term Judgment in
section 80 and Order 45 of the Rules, the same was meant to connote both a
decision that finally determines the rights of the parties in a given proceeding.
Of course a proceeding includes an application. My view is informed by
the use of both the terms “decree” and “order” as the matters that should
aggrieve the applicant thereby triggering the making of an application for
review. Accordingly, I hold that section 80 and Order 45 of the Act and rules,
respectively permit a court, in an appropriate application, to review a judgment
or ruling.

12. In view of the foregoing conclusion, what is the effect of an application for
review, such as the one before me wherein a party has not extracted and
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Pleadings Without Tears- Tips in Civil Litigation 97

exhibited either the decree or order? From the authorities relied on by the
respondent, such an application is fatal and incurably defective. I have examined
the said decisions, I have not been able to see the rationale why failure to
extract and exhibit the subject decree or order would make an application
for review to be fatally defective. Those decisions do not explain why. As I
have found out, what is to be reviewed is the judgment or ruling from which
the decree or order aggrieving the applicant results from. I therefore take
the view that the extracting and exhibiting of such a decree or order in an
application for review is but only a procedural step to enable a court to which
the application is made, to identify the subject decision and or party thereof
that has aggrieved the applicant.This to my mind is the only logical conclusion
one can give to the requirement or the extraction of an order or decree as
there is none given by our laws or the decisions on the matter. This being
the case, my view is that, this is only a procedural requirement that is curable
under article 159(2)(d) of the Constitution and does not aid in whatever way
the adjudication of a dispute between parties. Accordingly, I decline to reject
the application on the basis that no order was extracted or exhibited to the
application.The applicant properly identified the parts of the ruling, which was
the determination arrived at by the court, with which it was aggrieved. This
court’s jurisdiction was therefore properly invoked and I will now proceed to
consider the application on merit.’’

1.21.2 Tips

(a) From the court’s reasoning, it is pragmatic to avoid raising objections of a technical
nature simply because your opponent did not extract the Order or Decree. After
all there is nothing to prevent either party including the Order or Decree by way
of a Supplementary Affidavit. What if the court holds that the Order or Decree
be extracted forthwith or after arguments? At the end of the day it is preferable
for parties to get on with the review application and avoid drawing swords of
technicalities that only serve to delay the matter.

(b) A good example to relate to is rule 88 of the Court of Appeal Rules, 2010 that
states as follows:
88. Where documents are omitted from the record of appeal
Where a document referred to in rule 87(1) and (2) is omitted from the
record of appeal the appellant may within fifteen days of lodging the record
of appeal, without leave, include the document in a supplementary record
of appeal filed under rule 92(3) and thereafter with leave of the Deputy
Registrar on application.
The rationale is that the court will allow the filing of any documents that
have been omitted as the aim would be to concentrate on the main issues
rather than having advocates derail the matter on account of omission of a
document.
(c) The same rationale can apply to the missing Order or Decree that was not
filed with the review application as it can be filed by way of a Supplementary
Affidavit. The bottom line - get on with the application as any delay also
jeopardizes the conclusion of the application. The business of the court is
to abide by section 1B of the Civil Procedure Act that requires it to, inter
alia, deal with all proceedings in a just and efficient manner. Judicial time is
precious.
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98 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1.22 Instituting Legal Proceedings on Behalf of Companies Challenges

A Lawyer Faces When Confronted With Applications To Strike Out
Suit For Lack Of Resolution
Be wary when instructed by the directors of small companies who have fallen out with
each other.The need to seek immediate injunctive relief is usually the first instruction
that we receive, especially when the majority of the directors seek vengeance against
a director who has breached his fiduciary duties to the company.
In the past advocates, have had suits struck out with costs to be paid by them for
failure of getting a resolution to file suit. However, the position has since changed.
Palmer’s Company Law 24th Edition has set out the procedure to be adopted when
an objection has been raised about the validity of pending litigation when a challenge
pertaining to lack of a resolution to institute proceedings has been raised. The treatise
states:

‘If an individual shareholder, without authority to do so, initiates litigation in

the name of the company, the normal practice upon a motion to strike out the
company’s name is for the court to adjourn, whilst ordering that a meeting of the
shareholders be held to see if the company supports the litigation. If it does not, the
motion will succeed and the solicitor who commenced the proceedings without
authority of the company will be personally liable for the defendant’s costs.’

Cordery’s Law Relating to Solicitors states:

‘Proceedings will not be set aside because the solicitor acted without authority,
if the party on whose behalf they were taken adopts what has been done, but
ratification of an agent’s act can only be effective where, at the time of the act, the
principal was himself competent to perform it, or to authorise its performance, and
a plaintiff cannot so adopt an action after having apparently repudiated it to the
defendant.’

Pender v Lushington84- the court granted an injunction pending the shareholders, at a

general meeting, to determine if they were in favour of the proceedings filed in court.
Danish Mercantile Co. Ltd v Beaumont and another.85
The Court of Appeal set out the principles when an action was commenced
in the name of a company without authority. In this case the company went into
liquidation and the liquidator adopted the proceedings on behalf of the company,
where the Court held:

‘I find nothing in any of those cases to constrain me to hold that the issue of a writ and the
commencing of an action without authority of the purported plaintiff is a matter which
admits of no validation by subsequent ratification of the act of the solicitor concerned.
So to hold would be to introduce, as I see it, an entirely novel doctrine into the ordinary
law of principal and agent, and to make a new exception to the general rule that every
ratification relates back, and is deemed equivalent, to an antecedent authority.’

84 (1877) 6 Ch.D 70
85 [1951] 1 All ER 925. See page 929 at paragraphs F to H
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Pleadings Without Tears- Tips in Civil Litigation 99

‘It is common practice in such cases to adjourn any motion brought to strike out the
company’s name with a view to a meeting being called to see whether the company
desires the action to be brought or not.’ [930 paragraphs A-B]

‘I think that the true position is simply that a solicitor who starts proceedings in the name
of a company without verifying he had proper authority to do so, or under an erroneous
assumption as to the authority, does so at his own peril, and, so long as the matter rests
there the action is not properly constituted. In that sense it is a nullity and can be stayed
at any time, provided the aggrieved party does not unduly delay his application, but it is
open at any time to the purported plaintiff to ratify the act of the solicitor, who started the
action, to adopt the proceedings, and say: ‘I approve of all that has been done in the past
and instruct you to continue the action.’ When that has been done then in accordance
with the ordinary law of principal and agent and the ordinary doctrine of ratification, the
defect in the proceedings as originally constituted is cured, and it is no longer open to the
defendant to object on the ground that the proceedings thus ratified and adopted were in
the first instance brought without proper authority.’ [930 paragraphs F to H]

The House of Lords in the case of Alexander Ward and Co. Ltd v Samyang Navigation Co.
Ltd86approved and followed the dicta of Danish Mercantile Co. Ltd v Beaumont and another.
In this case the company had not appointed directors but a suit was filed without authority.
The plaintiff company went under but the liquidator ratified the proceedings. The House
of Lords held that any act within the company’s powers could still be undertaken on its
behalf and ratified by the company at a later date. Recovery of a debt due to the company
was such an act. The liquidator could validate the proceedings retrospectively.

The House of Lords also addressed the effect of the appointment of the liquidator at page
428, paragraphs e to g:

‘…that the ratification relied on is not that of the liquidator, but that of the company
acting by the liquidator. The proceedings were ab initio in the name of the company. By
the time he was sisted and adopted the proceedings, the liquidator was authorised to act
for the company...’

Presentaciones Musicales SA v Secunda and another87

The solicitor filed proceedings in respect of a company without authority. Ratification was
done after the expiry of the limitation period. The question was whether such ratification
was valid. The Court of Appeal held that a writ issued without authority was not a nullity
as the liquidator could adopt it the action notwithstanding the expiry of the limitation
period. The Court of Appeal approved the dicta of the Danish Mercantile case.

The Kenya Position

The English position on referring the matter to the general meeting was adopted by
the Court of Appeal in the case of East African Safari Air Limited v Anthony Ambaka

86 [1975] 2 All ER 424

87 [1994] 2 All ER 737
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100 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Kegode and another.88 I recall this case fondly as it was the first Court of Appeal case in
Kenya to follow the English common law position on what the court should direct
when an advocate faces the threat of paying for costs personally upon a challenge by
the defendant on the ground that suit was filed without authority of the company. It
established a new precedent that departed from the previous decisions. Previously, the
Kenyan legal position was that the suit was struck out and the law firm ordered to pay
costs personally. I will begin by setting out what transpired in the High Court case
before the matter ended up in the Court of Appeal.
The High Court Case-East African Safari Air Limited v Anthony Ambaka Kegode and another89

Facts
Prior to the sale of the company to the new shareholders, the defendants, who were
the majority shareholders, transferred about KShs. 132 million out the company’s
accounts and failed to disclose this fact in the sale agreement. It was only days after
the new shareholders took over the company that they discovered that funds had
been transferred without any justification. Suit was instituted in 2004 seeking orders
for declarations and permanent injunctions against the defendants herein, declaring
inter alia that the defendants herein, held certain monies which they had withdrawn
from the plaintiff company’s account, and banked into their respective accounts, and
to permanently restrain the defendants from utilizing or otherwise withdrawing those
monies. After obtaining freezing orders, the defendants filed an application challenging
my firm’s authority to institute suit without authority of the company. At the same
time one of the defendants filed an application against my firm seeking security for
costs to the tune of KShs 15 million. Soon thereafter, the company was placed under
receivership. Evidence was provided to show demonstrate that authority was given to
institute the suit by way of:

Resolution of the board of directors representing the new shareholders having about 90%
shareholding in the company has been obtained prior to filing suit.

A search had been conducted that confirmed the identities of the new shareholders. I had
a premonition that my firm’s authority could be challenged hence the extra steps taken to
forestall such an eventuality.

After the company was placed in receivership, the new receiver and manager had ratified
the continuation of the court proceedings.

The judge rejected the ratification and proceeded to strike out the suit with costs to
be met personally by my firm. The following is the excerpt of the judge’s reasoning
leading to the striking out the suit that reflected the then dilemma facing advocates
in Kenya.

“The issue whether there was a valid resolution appointing the firm of Walker Kontos
Advocates to act for the Plaintiff must therefore be answered in the negative. This

88 [2011] eKLR the writer successfully argued this case in the Court of Appeal that set a precedent in the
country.
89 [2006] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 101

conclusion has important consequences on the question of costs. The 1st defendant
prayed that the Advocates acting for the plaintiff company be condemned to pay costs. Dr.
Mumma, learned Counsel for the 1st defendant relied upon the cases of ………. Bugerere
Coffee Growers Ltd v Sebaduka and another [1970] EA 147 where, Youds, J, applying the
holding in Danish Mercantile v Beaumont [1951] ICh. 680, held that where an advocate
has brought legal proceedings without authority of the purported plaintiff, the advocate
becomes personally liable to the defendant(s) for the costs of the action. The situation
here is not dissimilar to that obtaining in the case of Mitchell and Hobbs (U.K.) Ltd v Mill
[1966] 2 BCLC 102 where it was held that the power to manage the affairs of a company
is conferred upon the body of the directors as a Board, and not upon any one director.
The action initiated by Ogden in the name of the company against the defendants should
be struck out because article 27 of the Articles of Association was intended to vest power
to appoint directors of the company upon general meeting of the company and not the
Board.

The purported appointment of Ogden and two others was ultra vires the company’s
Articles of Association and any subsequent decisions by such Board, and in particular
for the purposes of this case, the decision made at such Board Meeting on 18 June 2004
purporting to authorize the filing of action against the defendants were a nullity vis-à-vis
the said Articles of Association. There was similarly no delegation by the general meeting
of any such powers to the Board.

For all those said reasons, the 1st defendant’s Notice of Motion dated and filed on 12 July
2004 succeeds, subject to the following variation on the question of costs. Although the
authorities cited by Dr. Mumma supported by Dr. Kiplagat are very persuasive, they are
not binding upon this court. The general and statutory principle as set out in section
27(1) of the Civil Procedure Act (Chapter 21, Laws of Kenya), is that costs are at the
discretion of the court or the judge who is vested with full power to determine by
whom and out of what property and to what extent such costs are to be paid, and to
give all necessary directions for the purposes aforesaid. The proviso to the said section
27(1) enjoins that costs of any action cause or other matter or issue shall follow the event
unless the court or judge shall for good reason otherwise order. I have no good reason
for ordering otherwise. The defendants shall have the costs of the suit, and the application.

In matters where orders of costs are to be made against an advocate or firm of advocates
personally, the court must be satisfied that indeed the advocate or the advocate’s firm had
no authority to institute suit against the defendant or defendants.

In practice, an advocate may have general instructions to act for or on behalf of a client,
and receive an agreed retainer as his fees. When an advocate is, however, instructed to file
a suit, particularly against current or sitting directors or immediate former directors of a
company, special care is required on the part of the advocate or his firm that necessary
authorizations by way of clear resolutions of the Board have been taken to institute suit.

The reason for this is quite simple. Where the necessity of filing suit against a director or
directors of a company has arisen it should trigger alarm bells in the mind of an advocate
that serious disputes in the company have arisen or that serious mischief is afoot. These
ringing bells will alert the Advocate concerned to ensure that all necessary steps have been
taken to authorize the institution of the proposed suit. Where counsel fail to pay heed to
such warning bells, they do so at their own or their firms’ peril as to costs.
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102 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In the matter at hand the plaintiff ’s counsel ignored or misread those warning bells and
thereby invited upon themselves the peril of incurring the costs of not only the application
but also the suit itself.

This peril should not, however, be suffered entirely by the Advocates alone; the persons
or directors who purported to instruct the Advocates also carry the heavy responsibility
for costs as they are the persons who purport to give such instructions without first
ascertaining their own status and therefore the lawfulness or legality of their instructions
to the advocate or firm of advocates concerned.

In the result, therefore, the firm of Walker Kontos Advocates shall be responsible for the
costs of the application and the suit herein. The said firm shall, however, be indemnified
personally, by Adam Craig Ogden, Kiran Chandbhai Patel, and Captain Elly Aluvale,
jointly and severally as they were the authors of the instructions to the said advocates to
file suit.’’

1.22.1 The New Precedent Set by the Court of Appeal

I quickly filed an appeal and obtained a stay before the Court of Appeal.
The Court of Appeal allowed the appeal and set aside the judgment of the High
Court and set to a new precedent in Kenya on the matter where the court held:

“It is our view that the proper thing for the High Court to have done was not to strike
out the proceedings, but to stay the same pending ratification if it was of the view that the
evidence of ratification was not clear. Here is what Palmer states: -

“If an individual shareholder, without authority to do so, initiates litigation in the name
of the company, the normal practice upon a motion to strike out the company’s name
is for the court to adjourn, whilst ordering that a meeting of the shareholder’s be held
to see if the company supports the litigation. If it does not, the motion will succeed and
the solicitor who commenced the proceedings without authority of the company will be
personally liable for the defendant’s costs.”

Cordery’s Law Relating to Solicitor states that:

“Proceedings will not be set aside because the solicitor acted without authority, if the
party on whose behalf they were taken adopts what has been done, but ratification
of an agent’s act can only be effective where, at the time of the act, the principal was
himself competent to perform it, or to authorize its performance, and a plaintiff cannot
so adopt an action after having apparently repudiated it to the defendant.”

We think we have said enough to show that the High Court erred in striking out the
suit at that stage, instead of giving the appellant the opportunity to demonstrate that the
appointment of its advocates, even if irregular at the beginning, had been regularized. We
say nothing at this stage about whether the directors were appointed validly, and about
other issues. Those are for hearing at the High Court. We simply say the High Court was
wrong in striking out the suit on the grounds that it did, at that early stage.

Accordingly, we allow this appeal with costs to the appellants; set aside the orders of the
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High Court; and order that the chamber summons application dated 28 June 2004 be
heard on its merit before any Judge other than Emukule, J. Those are our orders.’’

1.22.2 Is There Need for a Resolution to file Affidavit and Instruct an

Advocate?
It is common for advocates to raise an objection challenging the authority of the
opposing advocate who represents a limited liability company. The problem that
emerges is that the suit is derailed as the objection must then be addressed conclusively.
This not only wastes valuable judicial time but only prolongs the determination of the
real issues in controversy. Some courts will entertain this objection and take more than
six months to determine the issue.
Justice Gikonyo addressed this issue in the case of Fubeco China Fushun v Naiposha
Company Limited and 11 others.90

Facts
One of the preliminary issues the court had to consider was whether the defendant
had passed a resolution authorizing Caroline Wairimu Kimemia to file the affidavit
herein or appointing the advocates on record to act in these proceedings. The court
dismissed the objection and held as follows:

“[17] These issues that the application before the court is improper by virtue of the
fact that the affidavits of Caroline Wairimu Kimemia did not disclose that she had
authority to act on behalf of the Company and the other directors: and further
that there was no board resolution instructing the advocate on record to act on
behalf of the defendant; apply to both applications. Let me be emphatic on this
issue that, I am aware of ample decisions of the court, and I can cite an example;
the case of Bugere Coffee Growers Ltd v Sebaduka and another [1970] EA 147 where
the court held that a company authorizes the commencement of proceedings by
resolution of the company or by way of minutes of its board of directors. However,
I find a lot of persuasion in the thread of thinking in the Ugandan case of United
Assurance Co. Ltd v Attorney General, SCCA No. 1 of 1998 where the Supreme
Court of Uganda held that it was now settled, as the law, that, it does not require
a board of directors, or even the general meeting of members, to sit and resolve to
instruct counsel to file proceedings on behalf and in the names of the company.
Any director, who is authorized to act on behalf of the company, unless the
contrary is shown, has the powers of the board to act on behalf of that company.
In the case before me, Caroline Wairimu Kimemia is a director of the defendant
company and she duly authorized the advocates on record to commence this
application. That fact is not denied and I am surprised the person laying the
objection is the plaintiff and not the defendant company.The Plaintiff has also not
presented any material or affidavit from the other directors denying the authority
of Caroline Wairimu Kimemia as a director in the defendant company. As such,
I do not think the Court is in any position to dispute the authority of Caroline
Wairimu Kimemia or the instructions to the advocate on record to defend the
interest of the company. Therefore, in the absence of evidence to the contrary, I
find the affidavits filed to be in order and the advocate herein to be properly on

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104 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

record for the defendant.

[18] Following my finding that the defendant is a juristic person and that the
misdescription herein is not fatal to the proceedings, the upshot is that the
application dated 19 March 2014 is dismissed. In any event, the application does
not meet the threshold set out in section 35(3) or 37 of the Arbitration Act for
the setting aside of the Arbitral award of the sole arbitrator, P. Mwaniki Gachoka
dated 13 February 2012 and the further ruling dated 3 April 2012.”

The Court of Appeal in the case of Arthi Highway Developers Limited v West End Butchery
Limited and 6 others91 also addressed the issue of authority of an advocate to represent a
limited liability company and agreed that the Bugerere case had been overruled by the
Supreme Court of Uganda in the case of United Assurance Co. Ltd v Attorney General,
SCCA No. 1 of 199.The court also noted that the ratio in the Ugandan case had been
applied by the Kenyan courts in the Fubeco China Fushun case (supra).
The court held:

“To their credit, the appellant’s advocates have cited another authority from the Supreme
Court of Uganda decided in April 2002, confirming that the principle enunciated in the
Bugerere case has since been overruled by the Uganda Supreme court. The authority is
Tatu Naiga & Emporium v Virjee Brothers Ltd, Civil Appeal number 8 of 2000.”

The Uganda Supreme Court endorsed the decision of the Court of Appeal that the
decision in the Bugerere case was no longer good law as it had been overturned in the
case of United Assurance Co. Ltd v Attorney-General: SCCA No. 1 of 1998. The latter case
restated the law as follows:-

“…. it was now settled, as the law, that, it does not require a board of directors, or even
the general meeting of members, to sit and resolve to instruct counsel to file proceedings
on behalf and in the names of the company. Any director, who is authorized to act on
behalf of the company, unless the contrary is shown, has the powers of the board to act
on behalf of that company.”

The decision has since been applied in Kenyan courts, for example, in Fubeco China
Fushun v Naiposha Company Limited and 11 others [2014] eKLR.”

1.22.3 Tips
(a) Always carry out a search when instructed by directors of a company who are
fighting each other.
(b) Get the resolution in writing prior to filing suit. Always ensure that you comply
with Order 4, rule 1(4) of the Civil Procedure Rules that is set out below:
1. Particulars of plaint [Order 4, rule 1.]
(1) The plaint shall contain the following particulars—
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff, and an address

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for service;
(c) the name, description and place of residence of the defendant, so far as
they can be ascertained;
(d) the place where the cause of action arose;
(e) where the plaintiff or defendant is a minor or person of unsound mind, a
statement to that effect; and
(f) an averment that there is no other suit pending, and that there have
been no previous proceedings, in any court between the plaintiff and the
defendant over the same subject matter and that the cause of action relates
to the plaintiff named in the plaint.
(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the
correctness of the averments contained in rule 1(1)(f) above.
(3) Where there are several plaintiffs, one of them, with written authority filed with
the verifying affidavit, may swear the verifying affidavit on behalf of the others.
(4) Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an
officer of the company duly authorized under the seal of the company to do so.
(5) The provisions of sub-rules (3) and (4) shall apply mutatis mutandis to counterclaims.
(6) The court may of its own motion or on the application by the plaintiff or the
defendant order to be struck out any plaint or counterclaim which does not comply
with sub-rules (2),(3), (4) and (5) of this rule.

(7) Ask the court to stay the proceedings and refer the matter to a meeting of the
shareholders to see if the company supports the litigation. The court shall impose a
timeline within which the meeting should be held and the resolution filed in court.

1.23 Arbitration Clause in A Contract - Where there is no Dispute the

Matter Should not be Referred to Arbitration
The courts have always respected the parties’ contracts that set out dispute resolution
clauses requiring all disputes to be referred to arbitration.
The five judges in the Court of Appeal case of Nyutu Agrovet Limited v Airtel
Networks Limited92 upheld the sacrosanct right of parties to refer their disputes to
arbitration. Justice Karanja, (J Mohammed, JA concurring) held as follows:
“Sections 10 and 35 of the Arbitration Act had to be interpreted within the context of
the concept of finality as internationally recognized in arbitral proceedings conducted
under the Unicitral model. They were not unconstitutional at all. Arbitration as a dispute
resolution mechanism was not imposed on parties, they choose it freely when they
incorporate the arbitration agreement into their contract, and at times even include the
finality clause as was the instant case. When they do so, they send the message that they
do not wish to be subjected to the long, tedious, expensive and sometimes inconvenient
journey that commercial litigation entailed.That was what party autonomy, a concept that
the courts treated with deference was all about.
When parties expressly exclude court intervention in their arbitration agreement, then
they should honour it and embrace the consequences. They could not turn round and

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claim that the very law they had freely chosen to govern their business was unconstitutional.
That was what the respondent was trying to do.’’
The court’s respect for the arbitration process was immortalized in the dissenting
decision in the Court of Appeal case of Safaricom Limited v Ocean View Beach Hotel
Limited and others93 where Justice Nyamu (J.A) held as follows:

“Although the English Arbitration Act, 1996 is not exactly modeled on the Model Law
unlike our Act, I fully endorse the principles as outlined in the Channel case (supra)
because they are in line with the arbitral tribunal’s jurisdiction as set out in section 17 of
the Arbitration Act of Kenya. The section gives an arbitral tribunal the power to rule on
its own jurisdiction and also to deal with the subject matter of the arbitration. It is not the
function of a national court to rule on the jurisdiction of an arbitral tribunal except by
way of appeal under section 17(6) of the Arbitration Act as the Commercial Court in this
matter purported to do. In this regard, I find that the superior court did act contrary to the
provisions of section 17 and in particular violated the principle known as “Competence/
Competence” which means the power of an arbitral tribunal to decide or rule on its
own jurisdiction. What this means is “Competence to decide upon its competence” and
as expressed elsewhere in this ruling in German it is “Kompetenz/Kompetenz” and in
French it is “Competence de la Competence”. To my mind, the entire ruling is therefore
a nullity and it cannot be given any other baptism such as “acting wrongly but within
jurisdiction.”

For the above reasons, because extraordinary wrongs call for extraordinary remedies,
in my opinion, it would be unjust not to invoke section 3A to strike out a ruling
which has so openly subverted the arbitral process which is intended to act as an
alternative to litigation so as to ease pressure on the court system and to assist in
the fight against backlog of cases and appeals. The act of usurpation of the arbitral
jurisdiction by the High Court has resulted in the improper use of court resources
both in the High Court and this Court and has further made the parties incur extra
cost and unnecessary delay contrary to the overriding objective.
Worse still the court went on to usurp the intended arbitrators or arbitral tribunal’s
role of adjudicating on the merits of the dispute which was intended to be the subject
matter of the intended arbitration.
Section 17 of the Arbitration Act states:
(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement,
and for that purpose –
a) an arbitration clause which forms part of a contract shall be treated as an
independent agreement of the other terms of the contract; and
b) a decision by the arbitral tribunal that the contract is null and void shall not
itself invalidate the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
than the submission of the statement of defence, however, a party is not precluded
from raising such a plea because he has appointed, or participated in the appointment
of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised

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as soon as the matter alleged to be beyond the scope of its authority is raised during
the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in subsection (2) or (3)
admit a later plea if it considers the delay justified.
(5) The arbitral tribunal may rule on a plea referred to in subsections (2) and (3) either
as a preliminary question or in an arbitral award on the merits.
(6) Where the arbitral tribunal rules as a preliminary question that it has jurisdiction,
any party aggrieved by such ruling may apply to the High Court, within 30 days
after having received notice of that ruling, to decide the matter.
(7) The decision of the High Court shall be final and shall not be subject to appeal.
(8) While an application under subsection (6) is pending before the High Court, the
arbitral tribunal may continue the arbitral proceedings and make an arbitral award.

Under the doctrine of Kompetenz/Kompetenz a tribunal can rule on both the validity of the arbitral
clause and the underlying contract. In the circumstances of the matter before us, once appointed it
would, for example, be entitled to rule on who are the parties to the arbitration agreement and on the
validity of the agreement to lease and whether it has jurisdiction over the other two respondents who
contend that they are not parties to the agreement to lease. The Commercial Court has no business
acting against an Act of Parliament and ruling on a matter it was not competent to rule on in law.
Such a ruling is a nullity period.’’ [emphasis mine]
From the above analysis, courts have preferred to let jurisdictional issues be
handled by the arbitral tribunal.
However, there are instances where the contract has an arbitration clause but in
reality, there is no dispute to go to arbitration. The common misconception has been
that once a contract has an arbitration clause then all disputes must automatically be
determined by arbitration. Let us first begin by appreciating what section 6 of the
Arbitration Act requires of the court to do if a party makes an application to refer the
matter to arbitration. The section provides:

Section 6(1)(b) of the Arbitration Act [No. 11 of 2009] provides as follows:

6.(1) A court before which proceedings are brought in a matter which is the subject of
an arbitration agreement shall, if a party so applies not later than the time when
that party enters appearance or otherwise acknowledges the claim against which
the stay of proceedings is sought, stay the proceedings and refer the parties to
arbitration unless it finds –
(a) that the arbitration agreement is null and void, inoperative or incapable of
being performed; or
(b) that there is not in fact any dispute between the parties with regard to the
matters agreed to be referred to arbitration.

(2) Proceedings before the court shall not be continued after an application under
subsection (1) has been made and the matter remains undetermined.

(3) If the court declines to stay legal proceedings, any provision of the arbitration
agreement to the effect that an award is a condition precedent to the bringing
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108 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

of legal proceedings in respect of any matter is of no effect in relation to those

proceedings.

At times when a plaintiff files a suit for recovery of a debt, the defendant applies to
court to stay proceedings and refer the dispute to arbitration under the provisions
of section 6 of the Arbitration Act. In many instances, advocates and judicial officers
assume that the mere presence of an arbitration clause, even when the debt is not
disputed, requires the suit to be stayed and the matter referred to arbitration.This view
is erroneous as arbitration should only be resorted to in the event of a dispute and not
in matters where, for instance, the debt is admitted or not disputed.
Halsbury’s Laws of England94 states:

‘Similarly, there is no dispute within the meaning of an agreement to refer disputes where
there is no controversy in being, as when a party admits liability but simply fails to pay, or
when a cause of action.... Questions of law may be referred to arbitration but, since such
questions can eventually come before the courts on a case stated, it has been suggested by
the court that it is better that they come before the Commercial Court in the first place,
thereby saving delay and expense.’

1.23.1 Admitted Debt Should not be Referred to Arbitration

A common area where disputes frequently arise is in the construction industry. In
most instances the contract between the developer and employer will provide that all
disputes will be resolved by way of arbitration. In Kenya, the “Agreement and Conditions
of Contract for Building Works” (1999 Edition) is published by the Joint Building
Council, Kenya with the sanction of the Architectural Association of Kenya and the
Kenya Association of Building and Civil Engineering Contractors. The Agreement,
for instance, will set out how the works shall be valued and certified for payment. The
contract will also involve other professionals such as a quantity surveyor and architect.
The role is also to verify the payments due to the contractor. For instance, once the
architect issues a final certificate, then the employer is contractually bound to settle the
amount owed to the contractor. In the event of any dispute the Agreement requires
that parties refer the matter to be determined by an arbitrator.
A good example of when the court will not refer the dispute to arbitration is the
case of China Sichuan Corporation for International Techno-Economic Co-operative (Sietco) v
Kigwe Complex Limited.95

Facts
The plaintiff had entered into an agreement with the defendant for the construction
of a commercial/residential block on the defendant’s piece of land. The agreement
had an arbitration clause that provided that no arbitration proceedings would be
commenced on any dispute or difference where notice of a dispute or difference
had not been given by the applying party within ninety days of the occurrence or
discovery of the matter or issue giving rise to the dispute. Prior to filing suit, the
defendant had been given ninety days’ notice of a dispute or difference. Upon expiry

94 4th Edition,Volume 2 at paragraph 503

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of the period, the plaintiff filed suit and applied for summary judgement for the sum
of KShs 25,560,150.90.The defendant applied to stay proceedings and refer the matter
to arbitration.
The defendant, in support of his application to refer the matter to arbitration
stated as follows:
• The sum sought by the plaintiff as disputed on account of poor workmanship.
• In various recorded minutes the defendant had raised issues about defects in the
building.
In opposition to the application to refer the matter to arbitration, one of the
grounds that the plaintiff relied upon was that the claim for KShs 25,899,301.60 for
construction works done by the plaintiff was not ill-advised as the claim was based on
valuation statements issued by the Project Manager as per the Agreement following a
joint inspection and measurement exercise conducted on the construction site with
all parties involved in attendance.
Justice Havelock dismissed the application for stay of proceedings and referral to
arbitration and held as follows:
“10. Most developers are laypeople.That is why they employ consultants experienced in
the building industry to assist them in construction projects. It is those consultants
who are their agents and are employed to ensure that their interests are looked after
and that they are not exploited by unscrupulous contractors. The Agreement and
Conditions of Contract for Building Works utilised for the defendant’s project (more
commonly known as the JBC Conditions of Contract) forming the Agreement
between the parties is in common use in Kenya. Such envisages payments being
made to the contractor (the plaintiff) under clause 34 thereof, for work carried
out on the project which have been certified as satisfactory and performed by the
Architect. Such payments are normally made as against interim payment certificates
but once the works being carried out have been completed, clause 34.17 provides
for the measurement and evaluation thereof and a final account is computed before
the issuance of the final payment certificate. As I understand it from the Replying
Affidavit of the plaintiff (paragraph 8), the final certificate has been issued in the
amount of KShs 17,339,150.70 and prior Valuation Statements have been issued by
the Project Manager (also the agent of the defendant) totalling KShs. 8,560,150.90.
The above comes to a total of KShs 25,899,301.60 whereas the sum prayed for
by way of the plaintiff ’s Summary Judgement application is KShs 25,560,150.90.
No doubt when it comes to pursuing its said application, the plaintiff will have an
explanation as to the discrepancy which seems, however, to be in the defendant’s
favour. I detail all this because the defendant’s application for stay pending arbitration
comes as somewhat of a surprise in the face of certification from its professional
consultants.To my mind, I agree with the second point as raised by learned Counsel
for the plaintiff when he says that there is no dispute between the parties which can
be referred to arbitration. Such comes within the parameters of section 6(1)(b) of
the Arbitration Act and consequently, on that ground alone, I am not inclined to
stay these proceedings and refer the parties to arbitration.
11. What of the timing of the defendant’s application before court? Here again I do
not find myself in sympathy with the submissions of the learned Counsel for the
defendant. I do not agree that section 6 of the Arbitration Act merely provides for
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110 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

timelines as regards procedure for filing applications for stay of legal proceedings. I
find myself on all fours with the decisions in the Lofty Bedouin,Timothy Rintari and
McLeod and Company cases (supra). I think it is mandatory that, when filing an
application for stay of legal proceedings for a matter to be referred to arbitration,
the same must be filed at the time when the party enters an appearance to the
suit brought against it. I do not think that the provisions of article 159(2)(d) of
the Constitution, 2010 helps the defendant herein in any way. I concur with the
finding of my learned brother Musinga J in the Willis Evans Otieno case that Article
159(2)(d) of the Constitution cannot be relied upon in the face of the specific
provision of section 6(1) the Arbitration Act expressed in mandatory terms viz:
“A court before which proceedings are brought in a matter which is the subject
of an arbitration agreement shall, if a party so applies not later than the time when that
party enters an appearance or otherwise acknowledges the claim against which the stay of
proceedings is sought, stay the proceedings and refer the parties to arbitration…….”.
[emphasis mine].
The conclusion to all the above is that I dismiss the defendant’s Chamber
Summons dated 27 August 2012 with costs to the plaintiff. Parties may now
set the plaintiff ’s application for Summary Judgement down for hearing at the
Registry, on a priority basis.’’
A similar position as in the case of Corporate Insurance Company v Loise Wanjiru Wachira
was also reached in the case of Nairobi Golf Hotels (Kenya) Limited v Lalji Bhimji Sanghani
Builders and Contractors.96The Court of Appeal held:
“The effect of a final certificate in a contract for works of construction will naturally
depend on the terms of each contract. In this case the architect under Clause 30 has power
to certify the final balance due and once he has done so he will be functus officio, unless the
final certificate is impugned under sub-clause (7) thereof. Since it was issued within the
jurisdiction conferred by the contract upon the architect, and in the absence of fraud or
collusion, the appellant cannot resist payment.’’
The Court of Appeal in UAP Provincial Insurance Company Ltd v Michael John Beckett97
held that when there was no dispute there was no need to refer the matter to arbitration.

Facts
The respondent insured his vehicle with the appellant, under a comprehensive private
car policy. On 18 December 1993, during the currency of the policy, the insured vehicle
was stolen. The respondent lodged a claim with UAP on 20 December 1993. As the
respondent waited for satisfaction of the claim, he received a letter dated 24 March
1994 from the appellant requesting for documentary proof of payment of import duty
for the insured vehicle as well as for a copy of the registration book. According to
the respondent the receipt with respect to the import duty paid was furnished to the
appellant a representative of the clearing and forwarding firm that cleared the insured
vehicle for Beckett on importation to Kenya. The appellant, repudiated liability under
the policy on the basis that the documents he submitted in support of the claim
were not genuine, which was in breach of his duty of utmost good faith. Based on a
complaint by the Branch Manager of the appellant in Mombasa, the respondent was
96 [1997] eKLR
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in November 1994 arrested and subsequently charged with two counts of the offence
of making false documents, namely import duty entries and customs receipt, without
authority contrary to section 357(a) of the Penal Code. A third count was that the
respondent attempted to obtain money by false pretences contrary to section 313
of the Penal Code in that he attempted to obtain cash from the appellant by falsely
pretending that the claim under the policy for his stolen vehicle was genuine and
valid. On 25 November 1995, the respondent was acquitted on all those three counts.
Thereafter the respondent instructed his advocates to pursue the claim for loss of the
insured vehicle with the appellant as negotiations between the parties culminated
in a settlement agreement under which the appellant had agreed to pay him KShs
6,000,000.00.
Upon failure to pay that sum, on 26 August 1997, the respondent filed a suit in the
High Court to enforce the settlement agreement and sought for KShs 6,000,000.00.
Following the institution of that suit the appellant filed an application under section 6
of the Arbitration Act, to stay that suit on the basis that under clause 10 of the policy
all differences between the parties were to be referred to arbitration. That application
was heard and dismissed by the Honourable Mr. Justice Mutungi (as he then was) in a
ruling dated 27 April 2004 in which the judge held that:
“I decline to stay the proceedings herein as there is nothing to be referred to arbitration.
There is no dispute between the parties. All there is the plaintiff ’s right to be paid as per
the agreement, and that has nothing to do with the policy document.”
The appellant filed an appeal which was dismissed by the Court of Appeal that held
as follows:
18 “The inquiry by the court with regard to the question whether there is a dispute
for reference to arbitration, extends, by reason of section 6(1)(b), to the question
whether there is in fact, a dispute. In our view, it is within the province of the court,
when dealing with an application for stay of proceedings under section 6 of the
Arbitration Act, to undertake an evaluation of the merits or demerits of the dispute.
In dealing with the application for stay of proceedings and the question whether
there was a dispute for reference to arbitration, Mutungi, J. was therefore within the
ambit of section 6(1)(b) to express himself on the merit or demerit of the dispute.
Indeed, in dealing with a section 6 application, the court is enjoined to form an
opinion on the merits or otherwise of the dispute.
19 The provisions in section 6(1)(b) of the Arbitration Act are similar to the provisions
of section 1(1) of the Arbitration Act, 1975 of England before its amendment by the
Arbitration Act, 1996. Section 1(1) of the English Arbitration Act of 1975 provided:
“If any party to an arbitration agreement to which this section applies, or any
person claiming through or under him, commences any legal proceedings in
any court against any other party to the agreement, or any person claiming
through or under him, in respect of any matter agreed to be referred, any party
to the proceedings may at any time after appearance, and before delivering any
pleadings or taking any other steps in the proceedings, apply to the court to stay
the proceedings; and the court, unless satisfied that the arbitration agreement is
null and void, inoperable or incapable of being performed or that there is not in
fact any dispute between the parties with regard to the matter agreed to be referred, shall
make an order staying the proceedings.” [Emphasis mine]
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20 In interpreting that provision which, as we have said is somewhat similar to the

provision in our statute, English courts have held that the court need not stay
proceedings in cases where there was no “real dispute”. Lord Swinton Thomas, LJ,
captured the significance of the words “there is not in fact any dispute between
the parties” as used in the 1975 English Arbitration Act, and which appear in our
section 6(1)(b), in the English case of Halki Shipping Corpn v Sopex Oils Ltd [1998]
1 WLR 726 which presents striking similarity with the circumstances in the present
appeal. We bear in mind that that case was decided under the 1996 Arbitration Act
of England.
21 In Halki Shipping Corpn v Sopex Oils Ltd, ship-owners applied for summary judgment
against charterers in respect of their claim for liquidated damages for demurrage.
There was an arbitration agreement between the parties and the charterers applied
to stay those proceedings pending reference to arbitration. The issue in that case
was whether there was a dispute within the meaning of the arbitration clause. Lord
Swinton Thomas, LJ stated at page 755 that:
“The words used in clause 9 of the charter party in relation to a referral to
arbitration were “any dispute.” The words in section 1(1) of the Act of 1975 are:
“there is not in fact any dispute between the parties.” To the layman it might
appear that there is little if any difference between those words. However, the
legislature saw fit to draft section 1 using the phrase “not in fact any dispute.”
The legislature did not use the words “there is no dispute” and consequently a
meaning must be given to those words and the courts have done so, although
there is no general agreement as to what they mean. The distinction between the
two phrases “any dispute” and “not in fact any dispute” is of central importance
in understanding what underlies the cases that preceded the Act of 1996. To a
large extent as a matter of policy to ensure that English law provided a speedy
remedy by way of Order 14 proceedings for claimants who made out a plain
case for recovery, and to prevent debtors who had no defence to the claim using
arbitration as a delaying tactic, the words “not in fact any dispute” as opposed to
“no dispute” have from time to time been interpreted by the courts as meaning
“no genuine dispute,” “no real dispute,” “a case to which there is no defence,”
“there is no arguable defence”, and later a case to which there is no answer
as a matter of law or as a matter of fact, that is to say that the sum claimed “is
indisputably due.” The approach of the courts has on occasions been similar
to that adopted by them in Order 14 proceedings in cases where there is no
arbitration clause.”
23 In recent times, this exception to the mandatory stay has been regarded as the
opposite side of the coin to the jurisdiction of the court under R.S.C., Ord. 14,
to give summary judgment in favour of the plaintiff where the defendant has no
arguable defence.”
22 In the English case of Ellis Mechanical Services Ltd v Wates Construction Ltd (Note)
[1978] 1 Lloyd’s Rep 33 which was determined on the basis of the1975 English
Arbitration Act, Lord Denning, M. R at page 35 had this to say:
“There is a point on the contract which I might mention upon this. There
is a general arbitration clause. Any dispute or difference arising on the matter
is to go to arbitration. It seems to me that if a case comes before the court in
which, although a sum is not exactly quantified and although it is not admitted,
nevertheless the court is able, on an application of this kind, to give summary
judgment for such sum as appears to be indisputably due, and to refer the balance
to arbitration. The defendants cannot insist on the whole going to arbitration by
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simply saying that there is a difference or dispute about it. If the court sees that
there is a sum which is indisputably due then the court can give judgment for
that sum and let the rest go to arbitration, as indeed the master did here.”
23 Bridge, L.J in the same case at page 37 captured the same principle as follows:
“To my mind the test to be applied in such a case is perfectly clear.The question
to be asked is: is it established beyond reasonable doubt by the evidence before
the court that at least £X is presently due from the defendant to the plaintiff?
If it is, then judgment should be given to the plaintiff for that sum, whatever X
may be, and in a case where, as here, there is an arbitration clause the remainder
in dispute should go to arbitration. The reason why arbitration should not be
extended to cover the area of the £X is indeed because there is no issue or
difference, referable to arbitration in respect of that amount.”
24 We identify fully with those pronouncements by English courts. The words “that
there is not in fact any dispute between the parties” appearing in section 6(1)(b)
of the Arbitration Act are in our view not superfluous and require the court to
consider whether there is in fact a genuine dispute when considering an application
for stay proceedings. As we have held, under section 6(1)(b) of the Arbitration Act,
1995, the issue whether the dispute or differences between the parties had any merit
was a matter properly before Mutungi, J.
25 In our view, the learned Judge was right in finding that the suit before him was for
enforcement of the settlement agreement under which Beckett was pursuing his
right to payment and that having regard to the settlement agreement there was no
dispute between parties capable of being referred to arbitration.
26 We are also persuaded that the arguments that the settlement agreement was a
nadum pactum and or tainted with illegality and therefore unenforceable were not
canvassed before the learned Judge. The learned Judge cannot be faulted for not
considering matters that were not raised before him.’’

1.23.2 Tips
(a) Do not make an application to refer the matter to arbitration if there is no dispute.
This will only delay the matter and expose your client to unnecessary costs.
Remember that arbitration is an expensive affair where the arbitrator charges fees
on an hourly basis.The fees, depending on the seniority of the arbitrator, may range
between KShs 15,000 to 25,000 per hour. On average a typical arbitration that goes
to full hearing may take about 50 hours.
(b) Only refer disputes to arbitration when there is a genuine dispute under the
confines of the contract.
(c) When there is a genuine dispute to be referred to arbitration do apply for a stay at
the same time as filing the Memorandum of Appearance.
(d) If a Defence is filed, then you lose the right to refer the matter to arbitration.This
was the reasoning in the Court of Appeal case of Corporate Insurance Company v
Loise Wanjiru Wachira98 where the court considered at what stage one should apply
for a stay of proceedings and refer the matter to arbitration. It should be noted that
this decision is good law on the effect of filing a defence. However, the part of
the decision that says that you apply for stay after entering appearance and before
filing a defence was premised upon section 6 of the Arbitration Act before the

98 [1996] eKLR
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114 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

amendment in 2009. The 2009 amendment, as per Justice Havelock’s decision in

the China Sichuan Corporation for International Techno-Economic Co-operative (Sietco)
makes it clear that the stay application must be filed together with the appearance.
The Court of Appeal nevertheless held as follows:
“We deal first with the complaint relating to the arbitration clause. Clause 10 of
the policy provided that all differences were to be referred to arbitration and that
the making of an award was to be a condition precedent to any right of action
against the company. As we have already said, the appellant filed its defence on
22 April 1988, the same day that it also entered an appearance. The appellant
made no application for stay of proceedings but when the case came up for
hearing on 12 August 1992, more than four years later, the appellant’s advocate
raised the arbitration issue in the form of a preliminary objection which the
Judge overruled.”
Section 6(1)(a) of the Arbitration Act (Cap. 49) (the Act) provides that:-
“6(1) If a party to an arbitration agreement or a person claiming through or under
him, commences any legal proceedings in any court against any other party
to the agreement, or against a person claiming through or under him, in
respect of a matter agreed to be referred-
(a) any party to those proceedings may at any time after appearance,
and before delivering any pleadings or taking any other steps in the
proceedings, apply to the court to stay the proceedings;”
In the present case the appellant did more than just enter an appearance. It delivered
a Defence, which is of course a pleading, raising clause 10 of the policy as a Defence.
The appellant made no application for stay of proceedings. The appellant was a
party to an arbitration agreement within the meaning of section 6 of the Act but
Mr. Muthoga’s submission before us was that because of the nature of the clause,
the appellant was not bound to apply for a stay of proceedings but could raise it as a
defence to the claim. Arbitration clauses such as clause 10 in the policy are known
as “Scott v Avery” arbitration clauses named after a leading case decided by the House
of Lords in England way back in 1856 in which their efficacy was considered and
have long been accepted as valid. These clauses do more than provide that disputes
shall be referred to arbitration. They also stipulate that the award of an arbitration
is to be a condition precedent to the enforcement of any rights under the contract;
so that a party has no cause of action in respect of a claim falling within the clause,
unless and until a favourable award has been obtained.
While we agree with the proposition that a Scott v Avery arbitration clause can
provide a defence to a claim, we cannot accept the submission that the party relying
on it can circumvent the statutory requirement to apply for a stay of proceedings.
In the present case, if the appellant wished to take the benefit of the clause, it was
obliged to apply for a stay after entering appearance and before delivering any
pleading. By filing a defence the appellant lost its right to rely on the clause.
The procedure in England in relation to these clauses is summarised at page 165
in The Law and Practice of Commercial Arbitration in England by Mustill and Boyd (2nd
edition) as follows:
“A Scott v Avery clause performs two different functions. Firstly, it creates an
obligation to arbitrate: and as such, it gives the defendant in a High Court action
the right for a stay of the proceedings. Second, it creates a condition precedent
to the plaintiff ’s right of action; and as such, it gives the defendant a substantive
defence to the claim. A defendant sued in breach of a Scott v Avery provision thus
has a choice of remedies. In law, he is entitled to bide his time and rely on the
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Scott v Avery point at the trial. But the court does not approve of this procedure,
because it wastes the costs of the action. The right course is for him to apply for a
stay,”[emphasis ours].
That is what the appellant should have done and that is what this Court said should
be done in the case of Kenindia Assurance Company Ltd v Patrick Muturi (Civl Appeal
No. 87/93)(Unreported). In our view, therefore, the Judge was right to reject the
appellant’s preliminary objection. This ground of appeal accordingly fails.’’

1.24 Challenges to Affidavits - Shutting Pandora’s Box

We may all have been victim at one time or another when faced with a challenge
to the affidavits that we have filed in court. An attempt will be made to highlight
some of the technicalities that have arisen with a view to avoiding the altar of judicial
destruction when the affidavits are struck out. Even though we now fall under the
shadow of article 159 of the Constitution that exalts substance over technicality, it is
good practice to get it right when drafting affidavits. The following are some of the
golden rules to follow when drafting affidavits.
1. It is trite law that the contents of an affidavit constitute evidence on oath. An
affidavit does not constitute a pleading. A pleading includes a summons, petition, a
statement of claim or demand or a defence, a reply to a defence or counterclaim, all
of which are subject to amendment, unlike an affidavit, which is evidence.99
2. Order 18, rule 4 of the Civil Procedure Rules requires that every affidavit shall state
the description, true place of abode and postal address of the deponent, and if the
deponent is a minor shall state his age.
3. Make sure that the affidavit discloses who drew it.
4. Make sure the deponent states that he has authority to swear the affidavit.100 Failure
to do so may lead to either the affidavit being struck out on the ground of that the
person was not competent to swear the affidavit or delays when the court grants
another date to allow the party to file a Supplementary Affidavit.
5. The verifying affidavit must be confined to matters that the plaintiff can depose
from his own knowledge to be correct.101
6. The jurat must not be on an isolated page. It is common practice for advocates to
send the client the jurat on an isolated page, have it signed and later attach the rest
of the pages. An objection can be raised on the point that the client has not deponed
to the contents of the affidavit as the jurat was isolated and did not flow with the
numbering in the preceding paragraphs.
7. The Commissioner’s exhibit seal must be endorsed on the actual exhibit and not on
a cover blank page. Failure to comply may lead to the annextures being expunged.102
8. When numbering exhibits adopt a progressive and simplified approach when
referring to exhibits. The normal practice is to adopt the Oaths and Statutory
Declaration Rules which reads at rule 9:

99 Stephen Boro Githua v Family Finance Building Society & 3 others [2015] eKLR
100 Commerce Bank Ltd v Paradiso Court Ltd (2000) LLR 2681 (CCK)
101 Gulam & Ano. v Jirongo (2003) LLR 2592 (CCK).
102 Anna Wangui v Victoria Commercial Bank Ltd (2000) LLR 2418. See also the case of Diamond Trust Bank (K) Ltd
v Garex (K) Ltd & 2 Others Milimani HCCC No. 1474 of 2001 (unreported) where the court expunged the
affidavit that had its pink blank cover pages endorsed with the exhibit stamp instead of the actual exhibits.
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116 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

“All exhibits to affidavits shall be securely sealed thereto under the seal of the
commissioner, and shall be marked with serial letters of identification.’’
The problem arises when you have, say, 50 exhibits and you are serving 10 defendants.
This means that you must mark 500 exhibits with the ‘Form of Identification of
Exhibit’ stamp. The typical result is:
• The cost of commissioning will be expensive.
• On account of the volume the Commissioner for Oaths may inadvertently omit to
sign all exhibits.
• A lot of time will be expended by the Commissioner for Oaths and yet time may be
of the essence for you to rush and file the urgent application.
The trick is simple. Remember that when filing suit, Order 3, rule 2 provides for,
inter alia, the witness statement and documents to be relied on at the trial. During the
trial, at the examination-in-chief stage, the witness will be sworn or affirmed and will
produce the bundle of documents which will be marked and produced as follows:
“The Plaintiff ’s Bundle of Documents dated 23 May 2016 are marked as Plaintiff ’s exhibit
1.”
In the event that there is no objection to production of all the copies in the bundle.
The bundle may contain hundreds of different documents. The cost-effective and
efficient manner of production of exhibits is as follows:
(a) When filing any application in the commercial division of the High Court in
Nairobi, under the Practice Directions Relating to Case Management in the
Commercial and Admiralty Division of the High Court at Nairobi,103 it is not
necessary to reproduce and repeat the very same documents in any application
when those documents are contained in the bundle of documents that have been
filed in court. Rule 15(c) addressed this point.104
15. Applications:
(a) With the exception of applications for injunctions filed with the filing of
the Plaint, all applications should as far as possible be raised and dealt with
at the Case Management Conference.
(b) On hearing any application for an injunction or on the delivery of a ruling
on an injunction application, the Judge may proceed to give directions for
a Case Management Conference with a view to the speedy resolution of
the matters in dispute.
(c) The affidavit filed in connection with any application may make reference
to documents contained in any Bundle of Documents which has been
filed and it shall not be necessary to exhibit such documents to the
affidavits.

103 GAZETTE NOTICE NO. 5179**(including Amendments made by Gazette Notice No. 6301 published on
5th September, 2014 and Gazette Notice No. 6807 published on 26th September, 2014). I was part of the
Committee that drafted these Rules and had proposed that it was unnecessary to duplicate documents when
filing injunction applications. (The efficacy of Rule 15 (c) has ensured that the court file is not bulky and
parties save on costs by avoiding copying the same documents twice over.)
104
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Pleadings Without Tears- Tips in Civil Litigation 117

(d) Any application to strike out pleadings or for judgment on admission

shall be made at the Case Management Conference and may not be made
after completion of the Case Management Conference.
(e) When producing the exhibits in the affidavit, simply add paragraph
number two to read as follows:
“There is now produced and shown to me copies of documents from
pages 1 to 1,500 forming the bundle of documents marked as exhibit
‘JD-1’.”
Explanation:
• “JD’’ are the initials of the deponent. “JD-1’’ is the entire exhibit comprising
1,500 pages.
• The Commissioners of Oaths form of exhibit stamp will be stamped on page 1
of the first document of the exhibit.
• Each document produced and exhibited will be numbered at the bottom of the
page from pages 1 to 1,500. Avoid numbering at the top right hand corner in the
event the matter ends up in the Court of Appeal.
• For ease of numbering, invest in the purchase of a numbering machine. This
machine is affordable and can be found in most reputable stationers.

1.24.1 Court Should not Strike Out Affidavits Suo Moto

In a case I was involved in Juja Coffee Exporters Limited and Others v Bank of Africa Limited
and another,105 the court suo moto struck out my client’s entire Replying Affidavit after
we had concluded arguments, referred to the exhibits and legal submissions. I had set
out the exhibit as follows:
“There is now produced and shown to me copies of the documents from pages 1 to 428
forming the bundle of documents in support of the exhibit marked ‘BM 1’.”
Of material importance is that the plaintiffs’ advocates had not raised an objection
to the Affidavit and the judge never questioned the Replying Affidavit during oral
highlighting of submissions. All evidence of the bank was simply struck out suo moto.
Justice Njoki Mwangi in a ruling delivered on 21 July 2016 held:
“3. Mr. Gichuhi, learned Counsel for the 1st respondent relied on the affidavit of Ben
Mwaura, a Senior Manager, Debt recoveries sworn on 4 June 2016 and filed in
Court on 15 June 2016. Rule 9 of the Oaths and Statutory Declarations Rules
requires that annextures to affidavits should be sealed and stamped. The rule reads:-
“All exhibits to affidavits shall be securely sealed thereto under the seal of the
Commissioner and shall be marked with serial letters of identification.”[emphasis
mine].

4. In the case of Fredrick Mwangi Nyaga v Garam Investments and another [2013] eKLR,
Havelock, J, (as he then was) considered the application of rule 9 of the Oaths
and Statutory Declarations Rules. The Judge in holding that an exhibit annexed
to an affidavit which is not marked is for rejection cited with approval a ruling by

105 [2016] eKLR

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118 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Hayanga, J, (as he then was) in the case of Abraham Mwangi v S. O Omboo and others,
High Court Civil Case No. 1511 of 2002 where the Judge held thus:-
“Exhibits to affidavits which are loose fly sheets for identification attached to them
and do not bear exhibit marks on them directly must be rejected. The danger is so
great. These exhibits are therefore rejected and struck out from the record. That
marks the affidavit incomplete and hence also rejected…”
5. Another decision addressing the matter of annextures to affidavits was made by
Judge Mutungi in the case of Solomon Omwega Omache & another v Zachary O Ayieko
& 2 others [2016] eKLR, where he stated as follows:-
“Although the point was not taken up by the plaintiffs the court has a duty to
uphold the sanctity of the record noting that this is a court of record. Before the
court is a replying affidavit with annextures which are neither marked nor sealed
with Commissioner’s stamp. Are they really exhibits? I do not think so and they
cannot be properly admitted as part of the record. I expunge the exhibits and in
effect that renders the replying affidavit incomplete and therefore the same is also
for rejection as without the annextures it is valueless. This should serve as a wake
up call to practitioners not to be too casual when processing documents for filing
as it could be extremely costly to them or their clients as crucial evidence could be
excluded owing to counsels or their assistants lack of attention and due diligence.”
6. A perusal of the annextures attached to the affidavit relied upon by the 1st respondent
do not bear the seal of a Commissioner for Oaths and are not marked with any
serial letters for identification as specified in the Third Schedule to the Oaths and
Statutory Declaration Rules. Taking into account that the provisions of rule 9 of
the above Rules are in mandatory terms, the order that commends itself to me is
that of striking out the annextures, which I hereby do. Consequently, the affidavit
that is filed in response to the present application which forms the support base for
the said annextures cannot stand on its own and is therefore also struck out. This
court will therefore take into consideration the affidavits filed by the applicants, the
submissions made by the counsel for the applicants as well as those made by counsel
for the 1st respondent on points of law and the authorities relied upon by both
counsel.”

1.24.2 A Court Should not Condemn a Party Unheard

The danger of a judge taking this route suo moto is that the rights of a client to a fair
hearing under article 50 of the Constitution would be infringed. That is the error
made in the Juja Coffee case (supra).
The Court of Appeal in the case of Mutiso v Mutiso106considered the rules of
natural justice (audi alteram partem) and whether the judge in the superior court could
suo motu dismiss an action without hearing the parties before dismissal.

Facts
The appellant had filed an originating summons against the respondent in the High
Court. The judge made an order suo motu dismissing the appellant’s originating

106 [1984] eKLR

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Pleadings Without Tears- Tips in Civil Litigation 119

summons without hearing the parties or inviting the appellant to make submissions
against the dismissal. The appellant therefore appealed against the dismissal of the
originating summons, inter alia, on the ground that the judge was not entitled in law
to dismiss the summons suo motu without hearing the parties and particularly the
appellant.
The Court allowed the appeal and held as follows:
1. It is a fundamental principle of justice that before an order or decision is made, the
parties and particularly the party against whom the decision is to be made should be
heard.
2. As the principle audi alteram partem was not observed, the case should be remitted to
the High Court to be decided according to the law.

1.24.3 Mode of Exhibiting Documents in Affidavit not Fatal

In the case of Litein Tea Factory Company Limited & another v Davis Kiplangat Mutai and
5 others107 an objection was raised by the defendant’s advocate as follows:
“The purported annexed exhibits/documents to the affidavit of Richard Ronoh at its
paragraph 2 purportedly marked RR 1 pages 1 to 62 both inclusive offend the mandatory
provisions of section 6 of the Oaths and Statutory Declarations Act, Chapter 15, Laws
of Kenya. They are therefore not exhibits to be referred to before the law and by this
Honourable Court.”
The objection was overruled by Justice Gikonyo who held as follows:
“[33] I propose to start with issue (c) above. The matter raised is governed by sections
5 and 6 of the Oaths and Statutory Declarations Act, and rule 9 of the Oaths and
Statutory Declarations Rules.The Rules draw from the Act. Section 5 has received
extensive judicial commentary and interpretation. I need not multiply them
except to cite some of them and state that the section is not cast in mandatory
but directory tone and any defect in the jurat of the affidavit is taken to be a
matter of form and not substance, thus, it is not fatal to the affidavit. See Ringera,
J, (as he then was) in Milimani – HCCC No. 462 of 1997, Standard Chartered
Bank Limited v Lucton (Kenya) Ltd (unreported), and Milimani HCCC No. 26
of 2004, Patrick Thinguri and 1,006 others v Kenya Tea Development Agency Co. and
another (unreported). But, the respondents have raised a specific question on the
sealing and identifying the exhibits to an affidavit. I wish to answer the question
specifically.
[34] Rules 9 and 10 of the Oaths and Statutory Declarations Rules provide as follows:-
9. All exhibits to affidavits shall be securely sealed thereto under the seal of the
Commissioner, and shall be marked with serial letters of identification.
10. The forms of jurat and of identification of exhibits shall be those set out in
the Third Schedule.
First of all, I have stated that the Rules draw from the Act. The word “shall’’ in
the Rules is also not to be interpreted to be mandatory but rather directory.
This approach is founded on the canons of statutory interpretation of the laws as

107 [2015] eKLR

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120 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

expounded by Ringera, J, (as he then was) in the case of Milimani – HCCC No.
462 of 1997, Standard Chartered Bank Limited v Lucton (Kenya) Ltd (unreported),
that:-
“There appears to be a common belief by many in these courts that the
use of the word “shall” in a statute makes the provision under construction
a mandatory one in all circumstances. That belief is in my discernment
of the law a fallacious one. As I understand the canons of statutory
interpretation, the use of the word “shall” in a statute only signifies that
the matter is prima facie mandatory. The use of the word is not conclusive
or decisive. It may be shown by a consideration of the object of the
enactment and other factors that the word is used in a directory sense only.
As long ago as 1861, in the case of Liverpool Borough Bank v Turner [1861]
30 L. J. Ch. 379, paragraph 380-381, Lord Campbell had laid it down that;

“No universal rule can be laid down as to whether mandatory enactments

shall be considered directory only or obligatory with an implied
nullification for disobedience. It is the duty of courts of justice to try to
get at the real intention of the legislature by carefully attending to the
whole scope of the statute to be considered.”

And from Principles of Statutory Interpretation by Justice G.P. Singh, a

former Chief Justice of Madhya Pradesh High Court in India, the following
instructive passage appears at page 242:-

“The use of word “shall” raises a presumption that the particular

provision is imperative; but this prima facie inference may be rebutted by
other consideration such as object and scope of the enactment and the
consequences flowing from such construction. There are numerous cases
where the word “shall” has, therefore, been construed as merely directory.”

And also in Milimani HCCC No. 26 of 2004, Patrick Thinguri & 1,006 others
v Kenya Tea Development Agency Co. and another (unreported), where he court
stated, that;

“Turning to the defects concerning the Jurat it is important to consider

whether the defect as described is as to form or is fundamental and likely
to touch on jurisdiction. Firstly, it is not alleged that apart from appearing
on a separate page there is any other defect like the name or place of
swearing, for example. The court finds that this is not a fundamental
defect or irregularity and is both curable under the Order on affidavits
namely Order 18, rule 7 which reads:-

7“The Court may receive any affidavit sworn for the purpose of being
used in any suit notwithstanding any defect by misdescription of
the parties or otherwise in the file or other irregularity in the form
thereof.”
For the avoidance of doubt and in view of the frequency of objections
being received by the courts it should be pointed out that section 72 of the
Interpretation and General Provisions Act does give the courts wider powers
and discretion to avoid being blinded by technicalities which are now being
raised on a daily basis by advocates and give the court time to consider and
embark on matters of substance.
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Pleadings Without Tears- Tips in Civil Litigation 121

Section 72 of the Interpretation and General Provisions Act states:-

“Save as is otherwise expressly provided, whenever a form is prescribed

by a written law an inherent or document which purports to be in that
form shall not be void by reason of a deviation therefrom which does
not affect the substance of the instrument or document or which is not
calculated to mislead.”

In the Court of Appeal case of Mwathi v Imanene 1982 KLR 323 the court
upheld the position as above concerning section 72. I therefore hold that this
section does give the court authority to overlook the defect concerning the
Jurat and to admit the affidavit in evidence…”

[35] The objection is that only the first exhibit in the Supporting Affidavit of Richard
Ronoh which is properly sealed; marked and identified as RR1. All the other
annexures running from pages 2 to 62 are not sealed and marked as per rules 9 and
10 of the Oaths and Statutory Declarations Rules, and are, therefore, not exhibits
as per the law. I note that the affidavit clearly tendered the exhibits as a bundle and it has
referred to the particular exhibits as a bundle. The Commissioner, then sealed, marked and
identified the annexures as a bundle. Therefore, where the exhibit is a report or a composite
document made of different parts or materials consisting in other inextricable, incidental or
accompanying documents, or a bundle of documents, it should be sufficiently described as
such in the body of the affidavit, and, the sealing and the marking of only the cover or the
first page of the report or the composite document or bundle of documents will be a sufficient
compliance with the Oaths and Statutory Declarations Act; and Rules. In any event, at
worst, the matter complained of the annexure in question would be a mere irregularity which
is a matter of form rather than substance, and such technicalities were depreciated by article
159 of the Constitution. Accordingly, I find that the annexure RR1 was properly sealed and
identified as the exhibit in the supporting affidavit herein. The affidavit is thus competent.”
[emphasis mine].

1.25 Injunctions
Order 40 of the Civil Procedure Act deals with temporary injunctions and interlocutory
orders. Order 40, rule 1 addresses cases in which a temporary injunction may be
granted. It reads:
A definition of the term ‘interlocutory’ was considered in the case of case of
Gilbert v Endean.108
Cotton, LJ said that:
‘Those applications only are considered interlocutory which do not decide the rights of
the parties, but are made for the purpose of keeping things in status quo till the rights
can be decided, or for the purpose of obtaining some direction of the Court as to how
the cause is to be conducted, as to what is to be done in the progress of the cause for the
purpose of enabling the Court ultimately to decide upon the rights of the parties.’
We should not trust clients blindly when seeking injunctive relief on an urgent basis.
Always remember the golden principles when a litigant approaches the court for an

108 (1878) 9 Ch. D 259 at 268 per Cotton, LJ.

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122 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

injunction that have stood the test of time since the case of Giella v Cassman Brown and
Company Limited.109 Those principles are:
1. A demonstration that the applicant has a prima facie case with a probability of success.
2. A demonstration that if an injunction is not granted, the applicant will suffer
irreparable loss which cannot be compensated for in monetary terms.
3. Where the court, is in doubt about ingredient (a) – (b) it will decide the matter on
a balance of convenience to both parties.

1.25.1 What is the Object of an Interlocutory Injunction?

The court will carry out a balancing act when faced with an injunction application that
is opposed at the inter partes hearing.The Court of Appeal in the case of Rockland Kenya
Limited v Elliot White Miller110 succinctly defined what the object of an interlocutory
injunction was. Justice Gicheru, J.A (as he then was) held as follows:
“1. The object of an interlocutory injunction is to protect the plaintiff against injury
by violation of his legal right for which he could not be adequately compensated
in damages recoverable in the action if the matters in dispute were resolved in his
favour at the trial. However, his need for such protection must be weighed against
the corresponding need of the defendant to be protected against injury resulting
from his having been prevented from exercising his own legal right for which he
could not be adequately compensated under the plaintiff ’s undertaking in damages
if the subject-matter of the trial was decided in his favour.
2. It is a remedy that is both temporary and discretionary. In cases where the legal
rights of the parties depend on facts that are in dispute between them, the evidence
available to the Court at the hearing of the application for an interlocutory
injunction is given on affidavit and is therefore incomplete as it has not been tested
by oral cross-examination.
3. At that stage therefore, it is not the function of the Court to attempt to resolve
conflicts of evidence on affidavit as to facts on which the claims of either party may
ultimately depend nor to decide difficult questions of law which call for detailed
argument and mature considerations. Such matters are to be dealt with at the trial.
Nonetheless, the Court must in the exercise of its discretionary power in this regard
be satisfied that the claim in respect of which an interlocutory injunction is sought
is neither frivolous nor vexatious: in other words, that there is a serious question to
be tried.’’

1.25.2 Tips
Clients may innocently or deliberately suppress material information from the
advocate when instructing an advocate to seek injunctive relief. As an advocate, your
duty as an officer of the court is to uphold the rule of law and avoid sharp practice.
These are some of the areas that an advocate should always advise a client prior to
filing an injunction:

109 [1973] E.A 358

110 [1994] EKLR for ease of reference the Ruling has been broken down into three parts by the writer.
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Pleadings Without Tears- Tips in Civil Litigation 123

1. Always insist that the client should make a complete disclosure of the history of the
matter so that you can advise the client on the merits and demerits of the injunction
application. There is nothing more embarrassing than for you to file the injunctive
application only to face a Replying Affidavit that exposes your client as a liar who
has committed acts of perjury.
2. Make sure that the matter is not res judicata. You must disclose any previous
decision(s) that addressed any previous issues regarding the suit property. It may be
that a fundamental new issue has arisen that was never considered in the previous
suits.
3. Does your client have a reasonable cause of action? Is he buying time or seeking to
frustrate the intended defendant who has a contractual or legal right in carrying out
a particular cause of action?
4. Make sure that your client is advised to give an undertaking as to damages. Courts
should be aware that injunctions without suitable undertakings can cause immense
financial harm to the defendant when the injunction application is dismissed or
discharged.
5. When filing the injunction and obtaining any injunctive order, always insist on
the summons being signed and sealed by the court at the same time as any order
injunctive order obtained. Courts should as a matter of course make it routine to
sign and seal all summons filed under certificate of urgency, whether injunctive
relief is granted or not.

1.26 The Perils of Perjury When Swearing False Affidavits

Not many litigants appreciate the dangers of swearing a false affidavit.The ramifications
are serious and the court may direct the police prefer charges of perjury while at the
same time invoking its inherent jurisdiction and strike out the application or pleading,
as the case may be.
The offence of perjury is set out in section 108 of the Penal Code, Chapter 63 of
the Laws of Kenya. Section 108 is as follows:
108. Perjury and subornation of perjury
(1)(a) Any person who, in any judicial proceeding, or for the purpose of instituting
any judicial proceeding, knowingly gives false testimony touching any matter
which is material to any question then pending in that proceeding or intended
to be raised in that proceeding, is guilty of the misdemeanour termed perjury.
(b) It is immaterial whether the testimony is given on oath or under any other
sanction authorized by law.
(c) The forms and ceremonies used in administering the oath or in otherwise
binding the person giving the testimony to speak the truth are immaterial, if
he assents to the forms and ceremonies actually used.
(d) It is immaterial whether the false testimony is given orally or in writing.
(e) It is immaterial whether the court or tribunal is properly constituted, or is
held in the proper place or not, if it actually acts as a court or tribunal in the
proceeding in which the testimony is given.
(f) It is immaterial whether the person who gives the testimony is a competent
witness or not, or whether the testimony is admissible in the proceeding or
not.
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124 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(2) Any person who aids, abets, counsels, procures or suborns another person to
commit perjury is guilty of the misdemeanour termed subornation of perjury.
Litigants should be advised that section 110 of the Penal Code imposes a seven-year
jail term for the offences of perjury or suborns perjury.

1.26.1 The Case of the Duplicitous Plaintiff

The court in Madara Evans Okanga Dondo v Housing Finance Company of Kenya111
addressed the issue of the duplicitous plaintiff who failed to disclose that he had filed
a previous suit and lost an injunction application.

Facts
On the day fixed for the hearing of the application, the defendant served a notice
of preliminary objection to the plaintiff to have entire suit struck out for being res
judicata. The defendant in the said notice stated that the plaintiff had filed a similar
suit on the same facts and sought the same orders in another court where the suit
was dismissed on 10 June 2002.The defendant further stated that the plaintiff had
filed a similar application for injunction which had been considered by the court and
dismissed by the other High Court sitting at Kisii. It was contended by the defendant
that the fact that the plaintiff had failed to disclose the existence of the previous
suit which had been dismissed, made the plaintiff guilty of failing to make material
disclosure to this court.
The court agreed with the plaintiff and held:
“In the instant case, it is clearly evident that the plaintiff did not file this suit with the
object of seeking justice from this court. The plaintiff filed this suit purposely to secure the
interim orders of injunction and thereby frustrate the defendant from realising the security
duly charged. The plaintiff knew that the defendant would expose his duplicity; by that
time the plaintiff would have succeeded anyway in postponing the sale. Unfortunately
for the plaintiff, his conduct was in abuse of the due process of the court. He dishonestly
obtained interim orders of injunction by misleading this court. This court would not
allow the plaintiff to get away with his nefarious conduct. Having found that the
plaintiff ’s suit is res judicata, and further having found that the plaintiff concealed material
facts from this court and further having found that the plaintiff made false averments and
swore a false affidavit, this court invokes its inherent jurisdiction and order the plaintiff ’s
application together with the entire suit be struck out with costs to the defendant.’’

1.26.2 Police May be Directed to Investigate a Litigant Over Perjury

There are times that a litigant will resort to swearing false affidavits with a view
to frustrating, for instance, a bank from realizing its security following default or a
judgement creditor from proceeding with the attachment of the moveable assets that
have been proclaimed. We, as advocates and officers of the court, have a duty to make
sure that the client makes full and frank disclosure of all material facts.We should never
be used as a conduit to perpetuate any fraud. We must always advise the client of the
consequences of swearing false affidavits.

111 [2005] eKLR

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Pleadings Without Tears- Tips in Civil Litigation 125

The dangers of swearing a false affidavit were set out in the case of James Kariuki
Nganga t/a Ndarugu Merchants v Joseph Ngae Njuguna & another112 where Justice
Kansango expressed her dismay over the false affidavits that were filed in court.

Facts
Objection proceedings were filed by Michael Muhai Ngae and Housing Finance Co.
of Kenya Ltd sought the following orders that they were the joint owners of motor
vehicles registration number KAJ 033X and that the Decree holder/plaintiff herein
his servant/agent including D.W. Mwangi T/A Kenya Shield Auctioneers be ordered
to release motor vehicle KAJ 033X to the 1st and 2nd objectors forthwith.
Previously, the judgment debtor’s wife’s objection proceedings over the same
motor vehicle were dismissed leading to the latest application by the two objectors.
The first objector deponed that he purchased the vehicle from Crown Coffee
Ltd evidenced by an agreement dated 29 April 2004. The purchase price was KShs
850,000 and the agreement indicates that KShs 200,000 was paid on 29 April 2004.
He also alleged that he obtained a loan from the 2nd objector of KShs 650,000 to
enable him pay the balance of the purchase price and as security the said vehicle was
registered in both objectors’ names.
The court found that neither the 1st objector nor the 2nd objector annexed the
Loan Agreement or any other document that could conclusively state that the loan
of KShs 650,000 was made toward the purchase of the subject vehicle. The court
then held that section 14 of the Auctioneers Act forbade the removal or alteration
of proclaimed good. That would mean that the sale of the motor vehicle to the 1st
objector was illegal. Of interest was that the advocate representing the wife later filed
the second objection proceedings. Based on the evaluation of the facts the court
determined that the motor vehicle did not belong to the objectors.The following part
of the ruling is a warning to advocates not to engage in conduct that may cause their
clients to be investigated for perjury. The court found as follows:
“The objector’s counsel argued that the logbook was conclusive evidence of ownership. Yet
when one looks at section 5 (1) of the Traffic Act one finds that the evidence of ownership is
found in the records kept by the Registrar. If that be so then the annexture to the supporting
affidavit marked“MMN7”is a copy of record of the Registrar dated 18 June 2004 which shows
that the vehicle registration No. KAJ 033X was registered in the judgment debtor’s name.”

Additionally, on 28 July 2004 in the presence and with the consent of counsel now
appearing for the objectors, who was then representing the wife of the judgment
debtor as the then objector, entered into a consent with the plaintiff ’s counsel that
the attached vehicle, KAJ 033X being of the them, could be sold in satisfaction of the
decree.
I have noted that apart from the fact that the objectors’ failed to exhibit the loan
agreement the statement relied upon the evidence of the loan clearly states as pointed
out by plaintiff ’s counsel that the loan account has no collateral. From that it seems
that the vehicle is not security for this account. Then the question begging an answer
is, is this vehicle security for any account of loan of the 2nd objector?’’

112 [2004] eKLR

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126 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In conclusion, the court directed that the police investigate the two objectors for
perjury and held as follows:
“The objectors have an obligation under Order 21, rule 53(1) to prove on a balance of
probability their legal or equitable interest in the attached vehicle. Having considered the
evidence presented before me both in submission and on affidavit I am of the view that
the objectors have failed to satisfy the burden of proof. In my view not only have they
failed to so satisfy the burden of proof, but having considered the affidavit evidence and
other previous and pending applications on record I am of the view that perjury was
committed. This I am sorry to state is becoming too frequent an occurrence in these courts
where parties are committing perjury without care of the serious consequence thereof.

I will therefore direct that the Criminal Investigation Department do investigate the
affidavits sworn by the objectors in this application to ascertain whether Michael Muhia
Ngae or Joseph Kania have committed perjury and if so, necessary action to follow.

The decree holder can proceed with execution and sale of the attached motor vehicle KAJ
033X under the comfort of section 44(1) of the Civil Procedure Act which provides: -

“ALL property belonging to a judgment debtor including property over which

or over the profit of which he has a disposing power which he may exercise for his
own benefit, whether that property is held in his name or in the name of another
but on his behalf, shall be liable to attachment and sale in execution of a decree.”

Having considered the evidence presented before me I am left without a doubt that
motor vehicle KAJ 033X is held by the objectors on behalf of the judgment-debtor,
who had its custody even at the time of attachment.
I have noted that there are various pending applications, which have become a
clog on execution of the decree.
I will therefore order that at the reading of this ruling the pending applications be
fixed for hearing.
The orders of this court are: -
(1) That the application dated 16 November 2004 is dismissed with costs to the plaintiff
to be paid by Michael Muhia Ngae and Housing Finance Company of Kenya Ltd.
(2) That the Criminal Investigation Department do carry out investigation on possible
perjury committed by Michael Muhia Ngae and Joseph Kania in their affidavits in
this mater (sic) sworn and dated 16 November 2004, the Executive Officer will assist
in this regard.
(3) That all the pending objection applications be fixed for hearing at the reading of this
ruling to ensure quick disposal.’’

1.27 Duty of Advocate to Assist the Court

An alarming practice is emerging where advocates raise all manner of allegations to
confuse the issues when their client has defaulted and then uses all manner of excuses
to avoid its obligations. It is bad for commerce when:
• The borrower having defaulted, gets an injunction and uses that as an excuse to avoid
making any further payments or attempt to clear the arrears. Courts must make it
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Pleadings Without Tears- Tips in Civil Litigation 127

clear that injunctive orders must be discharged if no attempt is made to service the
debt.

• The advocate drafts pleadings with the sole aim of diverting attention away from the
persistent default.

An excellent exposition on this issue was addressed in the Canadian case of Royal Bank
of Canada v Boussoulas, 2010 ONSC 4650 (CanLII). The court lamented about the
unfortunate practice of advocates making allegations of fraud without any evidence
to support the same.
The Court stated as follows:
“[26] Where affidavits contain elaborations of parties’ positions and argumentative
statements disguised as fact, it frequently becomes impossible for the court to
distinguish reliably between fact and argument. Witnesses are not advocates and
their affidavits should be confined to statements of facts. As the drafters of affidavits,
lawyers have a duty to limit their contents to properly admissible evidence. The
court should not be required to wade through excess material that is not properly
admissible. Another unacceptable by-product of this practice is that the size of
the affidavits expands, leading the opposite party to respond in kind, with the
inevitable result of a grossly excessive record. The motions judge is forced to
attempt to digest and make sense of all of the material, often with considerable
difficulty.
[27] An even more serious problem is the spreading practice for parties to make broad
allegations of fraudulent conduct on the part of their opponents, while lacking
the requisite prima facie case to sustain such allegations. It has long been the law that
making unfounded allegations of fraud is improper, and a ground for making punitive costs
awards against parties who make such allegations but fail to establish them. The rationale
for this principle is that an accusation of fraud is an accusation of a quasi-criminal
nature and of conduct involving moral turpitude. Such allegations are, therefore,
not to be made lightly, unless the lawyer has been presented with a prima facie case
establishing fraud.
[28] As was stated in Williston and Rolls, The Law of Civil Procedure, Toronto:
Butterworths, 1971, at 95:
A solicitor ought not to allege fraud unless there has been presented to him prima
facie evidence which, if uncontradicted, would justify the allegation; it is an abuse
of the process of the court to allege fraud without foundation.
See also Boulton, A Guide to Conduct and Etiquette at the Bar of England and Wales,
London: Butterworths, 1975, at 20.
[29] As was noted by Justice Ipp, supra at p. 85 of 114 LQR
As part of the duty to act with utmost honour and fairness, lawyers owe a duty to
the court to exercise care when making allegations of misconduct about others.
Otherwise the process of the court is susceptible to abuse.
[30] As I have noted, improper and unproven allegations of fraud can result in adverse
and punitive orders as to costs: see generally, Orkin, The Law of Costs, Aurora:
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128 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Canada Law Book, 2010, at pp. 2-72-73 and 2-110-111. Misconduct by a party
in the course of a proceeding may also warrant the refusal of equitable relief:
see Spry¸ supra at 414. I see no reason why this principle should not extend to
extravagant and unsupported allegations of fraud.
[35] As I have indicated previously, in my view, the conduct of RBC in these
proceedings has been such as to disentitle it to equitable relief. Misstatements and
overstatements of evidence such as those mentioned above impair and impede the
court in the performance of its function, and are to be strongly discouraged. It is
no answer for a party to say: “this motion was brought on notice – the defendant
had every opportunity to respond with his side of the story.” Whether a motion is
or is not brought on notice does not affect a party’s duty to be fair, accurate and
candid with the court, in its notice of motion, affidavits and factum. At the same
time as advocating his or her client’s cause, counsel has a duty to assist the court in
arriving at a just and proper result.”
The Court of Appeal in the case of Ngomeni Swimmers Limited v Katana Chara Suleiman
[2014] eKLR held as hereunder in respect to where an advocate could be held
personally liable to pay costs:
In determining whether an Advocate should be condemned to bear costs personally,
his conduct in the matter is of paramount importance. Where an Advocate’s conduct
is plainly unjustifiable for instance, if he deliberately misleads the court and or client,
craftly interprets or misinterprets the law, his conduct is oppressive and blatantly aimed
at achieving ulterior motives an order for costs also known as ‘wasted costs’ can be made
against him personally. We must hasten to add that the above list of indiscretions is
not exhaustive. At the end of the day, each case must be determined on its own facts.
Suffice to add that before the order is made, the Advocate in question is entitled
to be heard in rebuttal. In Myers v Elman (1)[1939] 4 All ER at page 509, Lord
Wright explained the grounds on which this jurisdiction can be exercised. He said:

“The matter complained of need not be criminal. It need not involve Reculation
or dishonesty. A mere mistake or error of judgment is not generally sufficient but
a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain
with accuracy may suffice. Thus a solicitor may be held, bound by certain events
to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit,
which his client swears. It is impossible to enumerate the various contingencies
which may call into operation the exercise of this jurisdiction. It need not involve
personal obliquity … It would perhaps be more accurate to describe it as conduct
which involves failure on the part of the solicitor to fulfil his duty to court and
realize his duty to aid in promoting, in his own sphere, the cause of justice …”

Under Kenyan law, this right of an Advocate to be heard before he is

condemned to bear wasted costs has been echoed in the case of JB Kohli &
others v Bachulal Popatlal [1964] EA 219 in which it was held in part that:

“But before the court exercises this summary jurisdiction to mulct a solicitor
in costs it must first give that solicitor an ample opportunity to direct the
complaint against him and to answer it. As Lord Wright pointed out in Myers
v Elman (1) [1939] 4 All ER at pg.508) All that is necessary is that the judge
should see that the solicitor has full and sufficient notice of the nature of
complaint made against him, and full and sufficient opportunity of answering it.”
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Pleadings Without Tears- Tips in Civil Litigation 129

In the Ugandan case of Kiwanuka & Co v Walugembe [1969] 1 EA 660 (HCU) a firm
of advocates was held personally liable for payment of the Defendant’s costs in a matter
where they had instituted suit, which suit was subsequently dismissed, on behalf of
a limited liability company, and which suit had been instituted without a mandatory
resolution from the company.
The test for establishing whether an advocate should be made personally liable for
costs was laid down by Lord Denning in the case of R & T Thew Ltd v Reeves (No 2)
[1982] 3 All ER 1086 at 1089, [1982] QB 1283 at 1286:
The compensatory jurisdiction

The compensatory jurisdiction is also preserved, but with this difference; it is retained
by the courts themselves. The Solicitors Disciplinary Tribunal has no power to award
compensation to anyone. Our old books all show that if a solicitor for one side has done
something wrong, which has caused useless costs to the other party, he could be ordered
personally to compensate the other party. That other party made his application at the
conclusion of the case or soon after it. He would apply to the court for an order that the
solicitor on the other side do pay the costs. He would do it by motion in the Chancery
court or by a motion or application for a rule in the courts of common law. It was a
summary jurisdiction without pleadings. All that was necessary was a notice telling the
solicitor what was alleged against him and giving him an opportunity of answering it.
1085 This is all described by Lord Wright in Myers v Elman [1939] 4 All ER 484 at 508,
[1940] AC 282 at 318. This jurisdiction still exists in full force. As a rule the party who
has incurred useless costs will himself make the application. But this is not invariable.
Sometimes the court may act of its own motion. As we did in this very case.

What conduct is sufficient?

This compensatory jurisdiction still retains, however, a disciplinary slant. Just as officers
in the services are subject to military discipline (see ss 64 and 69 of the Army Act 1955),
so are solicitors, as officers of the court, subject to judicial discipline. If they are guilty
of ‘any act, conduct or neglect to the prejudice of good order and [judicial] discipline’
or which is ‘unbecoming the character of an officer and a gentlemen’, causing loss or
damage to another, they can be ordered personally to compensate him. The cases show
that it is not available in cases of mistake, error of judgment or mere negligence. It is only
available where the conduct of the solicitor is inexcusable and such as to merit reproof.
In Myers v Elman [1939] 4 All ER 484 at 490, 498, 509, [1940] AC 282 at 292, 304, 319
Viscount Maugham put it as ‘a serious dereliction of duty’, Lord Atkin spoke of ‘gross
negligence’, and Lord Wright said that ‘gross neglect or inaccuracy’ may suffice. Lord
Wright’s definition included ‘a failure on the part of a solicitor … to realise his duty to aid
in promoting, in his own sphere, the cause of justice’. Lord Porter said that the solicitor
there had been ‘grossly negligent’ (see [1939] 4 All ER 484 at 522, [1940] AC 282 at 338).
Useful illustrations are to be found in Edwards v Edwards [1958] 2 All ER 179 at 193,
[1958] P 235 at 258 (holding the solicitor liable to pay the costs of the other side because
of his ‘oppressive procedure’) and Mauroux v Sociedade Comercial Abel Pereira da Fonseca
SARL [1972] 2 All ER 1085, [1972] 1 WLR 962 (holding the solicitor not liable for an
‘oversight’).

The test was further clarified by the House of Lords in the case of Ridehalgh v Horsefield
and another and other appeals [1994] 3 All ER 848 at 849 where it held as follows:
“The court, in exercising its jurisdiction to ensure that litigants should not be
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130 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

financially prejudiced by the unjustifiable conduct of litigation by their or their

opponent’s legal representatives, would only make an order under s 51(6) of the
1981 Act if it was satisfied that the conduct characterised as ‘improper, unreasonable
or negligent’ directly caused the wasted costs complained of, and would be
astute to safeguard against wasted costs orders becoming a back-door means of
recovering costs not otherwise recoverable against a legally aided or impoverished
litigant. The meaning of the words ‘improper, unreasonable or negligent’ was well-
established and not open to serious doubt. ‘Improper’ covered any significant
breach of a substantial duty imposed by the relevant code of professional conduct,
as well as conduct which would be improper according to the consensus of
professional opinion, whether it violated the letter of a professional code or not.
‘Unreasonable’ described conduct which was vexatious, designed to harass the
other side rather than advance the resolution of the case, and it made no difference
that the conduct was the product of excessive zeal and not improper motive, since
the acid test was whether the conduct permitted of a reasonable explanation.
‘Negligent’ was to be understood in an untechnical way to denote failure to act
with the competence reasonably expected of ordinary members of the profession.”

1.28 Mandatory Injunction

It is trite law that mandatory injunctions can only be issued where the plaintiff has
established a clear and summary case. In the case of Kenya Breweries Ltd and 2 others
v Washington Okeyo113 the Court of Appeal pronounced the test for a mandatory
injunction.

Facts
The appellants filed an appeal from the decision of the superior court whereby the
learned Judge issued a mandatory injunction compelling the second appellant to
release motor vehicle registration No. KAE 284J (the vehicle) to the respondent, the
plaintiff in the suit, and an interlocutory injunction restraining the appellants from
selling or in any way interfering with the same.
The respondent purchased the vehicle with a loan facility made available to him
by the Standard Chartered Bank. It was guaranteed by the first appellant pursuant to
its executive car loan scheme set out for its employees. The first appellant claims that
when he left the employment in 1998, the balance outstanding on the facility was
KShs 457,314.95. That sum was repaid by the first appellant who was the guarantor
of the loan whereupon it requested the respondent to reimburse it. The respondent,
however, claimed that he fully redeemed and discharged the liability pursuant to the
request. On doing so, the respondent expected that the first appellant would transfer
to him the vehicle. However, that was not to be. According to the respondent, the
first appellant transferred the said motor vehicle to the second appellant thereby
occasioning this suit and this subsequent appeal.
The Court of Appeal found that there were two contracts involving the parties.
The first one was between the respondent and the first appellant relating to the car
loan and, secondly, between the respondent and the second appellant relating to the
borrowing of KShs. 930,000 by the respondent for the purpose of purchasing a property.

113 [2002] eKLR

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‘The court also found that it would be inequitable for the respondent to obtain a
mandatory injunction whose effect would be to relieve him of his obligation to pay
his debts as this would amount to stealing a march by avoiding his just obligations.’The
court allowed the appeal and set aside the ruling dated 21 November 2000. On the
test of when a mandatory injunction will be given, the court held as follows:
“The test whether to grant a mandatory injunction or not is correctly stated in volume
24 Halsbury’s Laws of England 4th Edition, paragraph 948 which reads:

‘A mandatory injunction can be granted on an interlocutory application as well as

at the hearing, but, in the absence of special circumstances, it will not normally be
granted. However, if the case is clear and one which the court thinks it ought to
be decided at once, or if the act done is a simple and summary one which can be
easily remedied, or if the defendant attempted to steal a march on the plaintiff …. a
mandatory injunction will be granted on an interlocutory application’.

The Court of Appeal in the case of Stephen Kipkebut t/a Riverside Lodge and Rooms v
Naftali Ogola114 laid out the principles that guide a court when granting a mandatory
injunction.

Facts
The appellant had originally filed an injunction application in the High Court where
he alleged that he was the lawful leaseholder of the suit land and that the respondent
had allegedly trespassed therein and took possession of the property purporting to be
the owner and sublet it to various garage operators. He further alleged that he had
suffered loss and had allegedly been threatened by the respondent with death if he
attempted to take possession of the land. His injunction application was dismissed
with costs even though the defendant was absent during the hearing. The High
Court found that a mandatory prayer for an injunction is not available unless for
exceptional circumstances. The appellant then filed the injunction application in the
Court of Appeal seeking:
“That a temporary injunction be issued compelling the respondent herein, his servants,
agents and tenants to give vacant possession of the applicant’s parcel of land known as LR.
No. 209/14318 situated along Jogoo Road within the city of Nairobi forthwith pending
the hearing and determination of the applicants intended appeal.”

The Court of Appeal found the prayer curiously worded but in essence it found that
it sought a “temporary mandatory injunction”.
The Court of Appeal on 23 October 2009 dismissed the injunction application
and reiterated the tests for the granting of an injunction application. The court held:
“We think for our part that the learned Judge was alive to the principles applicable in
considering prayers for grant of a temporary mandatory injunction, and, perhaps, she can
only be faulted for failure to cite her authoritative sources for such principles. The learned
Judge stated clearly that such orders may only be granted in exceptional circumstances
and was not prepared to order the eviction of the respondent before evidence in the
main suit is heard, or the suit is otherwise determined in summary manner. In that
approach the learned Judge was echoing many past authorities such as East African Fine
Spinners Ltd (In Receivership) and 3 others v Bedi Investments Ltd, Civil Appl. NAI. 72/94

114 [2009] eKLR

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132 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(ur) where Gicheru, JA (as he then was) cited Megarry, J (as he then was) in Shepherd
Homes Ltd v Sandahm [1971] 1 Ch. 34, stating in part:

“………., it is plain that in most circumstances a mandatory injunction is likely, other

things being equal, to be more drastic in its effect than a prohibitory injunction. At the
trial of the action, the court will, of course grant such injunctions as the justice of the case
requires; but at the interlocutory stage, when the final result of the case cannot be known
and the court has to do the best it can, I think the case has to be unusually strong and clear
before a mandatory injunction will be granted, even if it is sought in order to enforce a
contractual obligation. If, of course, the defendant has rushed on with his work in order
to defeat the plaintiff ’s attempts to stop him, then upon the plaintiff promptly resorting
to the court for assistance, that assistance is likely to be available; for this will in substance
be restoring the status quo and the plaintiff ’s promptitude is a badge of the seriousness of
his complaint.”

As stated earlier there are no dates in the pleadings on record to show when the respondent
entered into the parcel of land or that he was stealing a march on the applicant. Megarry,
J, continued:

“The matter is tempered by a judicial discretion which will be exercised so as to withhold

an injunction more readily if it is mandatory than if it is prohibitory. Even a blameless
plaintiff cannot as of right claim at the trial to enforce a negative covenant by a mandatory
injunction. Second, although it may not be possible to state in any comprehensive way
the grounds upon which the court will refuse to grant a mandatory injunction in such
cases at the trial, they at least include the triviality of the damage to the plaintiff and the
existence of a disproportion between the detriment that the injunction would inflict on
the defendant and the benefit that it would confer on the plaintiff. The basic concept
is that of producing a “fair result,” and this involved the exercise of a judicial discretion.
Third, on motion, as contrasted with the trial, the court is far more reluctant to grant a
mandatory injunction than it would be to grant a comparable prohibitory injunction. In
a normal case the court must, inter alia, feel a high degree of assurance that at the trial it
will appear that the injunction was rightly granted; and this is a higher standard than is
required for a prohibitory injunction.”

Locabaill International Finance Ltd. v Agroexport.115

Facts
An Indian company sold to the first defendants, a Romanian state trading organisation,
a quantity of soya meal c&f Bombay to Constanza and in part fulfilment of the
contract chartered a vessel and began loading at Bombay. The plaintiffs were the first
mortgagees of the vessel. Protracted delays occurred in loading at Bombay because
of financial difficulties of the ship-owners. In order to extricate the vessel from its
difficulties in Bombay the first defendants, acting by the second defendants, who were
their United Kingdom agents, agreed to lend the ship-owners sufficient funds to
discharge their creditors at Bombay, thus enabling the vessel to complete loading and
carry out its voyage. The first defendants obtained the necessary foreign exchange for
the performance of the loan from another Romanian concern,T, under an agreement
(the loan agreement) which provided that the first defendants’ rights against the ship-

115 [1986] 1 All ER 901- the facts and holdings are copied from the law reports.
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Pleadings Without Tears- Tips in Civil Litigation 133

owners were to be subrogated to T. In order to ensure that the first defendants did
not arrest the vessel when it arrived at Constanza in order to provide security for
repayment of their advance to the ship-owners, the plaintiffs entered into an agreement
with the defendants under which the first defendants undertook not to arrest, attach
or detain the vessel at Constanza and the plaintiffs undertook not to exercise their
rights as mortgagees to arrest the vessel until the cargo had been discharged. The
plaintiffs were unaware of the loan agreement between the first defendants and T. After
the vessel completed its voyage and discharged its cargo the ship-owners were unable
to repay the first defendants, who were unable to repay T, who therefore exercised
their right to take over the first defendants’ security against the vessel and arrested the
vessel in Romania. The plaintiffs thereupon instituted proceedings in England against
the defendants claiming damages for breach of contract and injunctions requiring the
first defendants to take such action as was necessary to prevent or avoid the arrest of
the vessel and restraining them from causing, procuring, permitting or assisting T to
arrest the vessel. The plaintiffs also applied for an interlocutory injunction requiring
the first defendants to make immediate payment of the sum owed to T under the
loan agreement in order to have the arrest of the vessel lifted. The judge granted the
mandatory injunction sought, holding that the plaintiffs had a fully arguable case for
implying a term into their agreement with the defendants that the defendants would
do whatever was in their power to repay T to avoid T exercising their independent
right of arrest and that damages would not be an adequate remedy in the circumstances.
The first defendants appealed, contending that the judge had applied the wrong test in
deciding to grant the mandatory injunction.
The court held as follows:
(1) A mandatory injunction ought not to be granted on an interlocutory application in
the absence of special circumstances, and then only in clear cases either where the
court thought that the matter ought to be decided at once or where the injunction
was directed at a simple and summary act which could be easily remedied or where
the defendant had attempted to steal a march on the plaintiff. Moreover, before
granting a mandatory interlocutory injunction the court had to feel a high degree
of assurance that at the trial it would appear that the injunction had rightly been
granted, that being a different and higher standard than was required for a prohibitory
injunction dictum of Megarry, J, in Shepherd Homes Ltd v Sandham [1970] 3 All ER
at 412 applied.
(2) The judge had not applied a sufficiently stringent test in deciding whether there had
been a clear breach by the first defendants of an implied term in their agreement
with the plaintiffs which ought specifically to be performed but had instead granted
the mandatory injunction with a lesser degree of conviction than was appropriate.
Since the first defendants would be put in an irretrievable position if it were to be
held at the trial that there was no implied term and since they were attempting to
negotiate their way out of their difficulties with T it would be wrong to make an
order compelling them to pay the whole of the sum claimed by T. Furthermore,
if an injunction was granted it would not be enforceable by the court since there
was no official of the first defendants within the jurisdiction would be subject
to an application for contempt and the first defendants had no assets within the
jurisdiction which could be made the subject of a sequestration order, although (per
Balcombe, LJ) the fact that a defendant had no assets within the jurisdiction was not
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134 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

a conclusive argument for saying that damages would not be an adequate remedy.
It followed therefore that the appropriate remedy was not a mandatory injunction
but an award of damages if the plaintiffs proved their case at trial. The appeal would
therefore be allowed (see page 906 h to p 907 d f h j, post).
Mustil, LJ, said at page 906:
“The matter before the court is not only an application for a mandatory injunction,
but is an application for a mandatory injunction which, if granted, would amount
to the grant of a major part of the relief claimed in the action. Such an application
should be approached with caution and the relief granted only in a clear case. I
feel bound to say that, to my way of thinking, this was not the approach adopted
by the judge because, as I understand the position, a specific argument was not
directed at the hearing before him to the level of conviction which required to be
conveyed to the court before a mandatory injunction could properly be granted.”

1.29 An Application for A Mandatory Injunction is Made Under Section

3A of the Civil Procedure Act
When seeking an interlocutory mandatory injunction, always bring the application
under section 3A of the Civil Procedure Act. In 2003, I opposed an injunction
application where the plaintiff had sought a mandatory injunction under Order 39
of the Civil Procedure Rules. Justice Ringera found that interlocutory mandatory
injunctions are not contemplated by Order XXXIX of the Civil Procedure Rules. An
application for a mandatory injunction can only be made pursuant to the provisions
of section 3A of the Civil Procedure Act and the procedural mode is a motion on
notice pursuant to Order L, rule 1 of the Civil Procedure Rules. In an application
where the plaintiff seeks both interlocutory prohibitive and mandatory injunctions
it is incumbent to do so on a motion on notice for under the procedural law it is
established that where a matter partly falls within the scope of a summons in chambers
and partly within a motion on notice, the motion is to be invoked.This was the case
of Morris and Co. Ltd v Kenya Commercial Bank.116 This was the first major injunction
case I opposed as a young advocate. I was faced with a formidable seasoned litigator. I
still recall with pride the words of the judge who clearly appreciated the arguments of
counsel. The judge noted at the outset as follows:
“The applications were argued before me on 28 November and 4 December 2003 by
Mr Regeru, counsel for the plaintiff and Mr Gichuhi, counsel for the defendants. Both
displayed a considerable skill, verve and vigour.’’

Justice Ringera (as he then was) held as follows on the aspect of how an interlocutory
mandatory injunction should be set out in the application:
“(I)t is trite law that interlocutory mandatory injunctions are not contemplated by Order
XXXIX of the Civil Procedure Rules. That Order only contemplates interlocutory
prohibitive injunctions. An application for a mandatory injunction can only be made
pursuant to the provisions of section 3A of the Civil Procedure Act and the procedural
mode in that case is a motion on notice pursuant to Order L, rule 1 of the Civil
Procedure Rules. The plaintiff herein appears to have been half alive to the foregoing for
its application does invoke section 3A but failed to realise that that could only be done in

116 [2003] 2 EA 605 (CCK) at page 607.

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Pleadings Without Tears- Tips in Civil Litigation 135

a motion. So in this application where the plaintiff sought both interlocutory prohibitive
and mandatory injunctions it was incumbent on him to do so in a motion on notice, for
under our procedural law it is established that where a matter partly falls within the scope
of a summons in chambers and partly within a motion on notice, the large procedure,
namely the motion, is to be invoked. Having failed to do so, the plaintiff ’s application is
also incompetent for this additional reason.”

1.29.1 The Danger of Omitting the Prayer for “Permanent Injunction” May
Leave You in Tears
Under Order 39, rule 2 of the Civil Procedure Rules, unless an application for a
temporary injunction contains a prayer for a permanent injunction in the plaint, the
application is incompetent and the application is ripe for striking out on that point
alone. This point was considered by Justice Ringera (as he then was) in the cases of
Morris and Co. Ltd v Kenya Commercial Bank117and Kihara v Barclays Bank of Kenya.118

Facts of the Kihara v Barclays Bank of Kenya Case

In 1988, while still employed by the defendant, on the foot money he borrowed
from it, the plaintiff purchased certain property which he charged to the defendant as
security.The plaintiff alleged that sometime in March 1995 he was forced to take early
retirement despite the terms of his original contract of employment which had been
unlawfully altered by the defendant without consultation. The plaintiff defaulted in
the repayment of the loan and the defendant issued the requisite notices. The plaintiff
then commenced proceedings seeking relief against the defendant on diverse grounds
including unlawful termination of the contract of employment and violation of his
constitutional rights. He also applied for an interlocutory injunction to issue restraining
the defendant from selling the property until the hearing and determination of the
suit.
The learned Judge summarised the position in the latter case by distinctly
elaborating the remedies sought under Order 39, rules 1 and 2 and dismissed the
injunction application. The judge held as follows:
1. Whether interlocutory injunctive relief can or cannot issue depends on the nature of
the suit instituted and the procedural rules on which the application for interlocutory
relief is grounded. When the application is brought under any of the subrules of
Order 39, rule 1 of the Civil Procedure Rules there is no requirement that the
suit in which the temporary injunction is sought must be one which itself seeks
any restraining orders. Where the application is under Order 39, rule 2 of the Civil
Procedure Rules, it is an express requirement that the suit in which the temporary
injunction is sought must be one for restraining the defendant from committing
a breach of contract or committing the tort complained of. Mansukhlal Patel v
Brian Hume Naylor and others (ur) civil appeal number 10 of 2000 and Laxmanbhai
Construction v Anspar Beverages Ltd (ur) HCCC number 1327 of 2001 explained.
2. The plaintiff ’s application for interlocutory relief did not sound under rules 1(a)
or 1(b) at all (though both rules had been invoked) but fell squarely under rule 2.
Though this had been mentioned by counsel the plaint had not been amended,
and the application for an interim injunction was incompetent as the plaintiff

117 supra
118 (2001) 2 EA 420 (CCK)- the editorial summary and holdings are copied from the East Africa Law Reports.
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136 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

did not seek any relief in the form of a permanent injunction in the plaint.
3. The mere fact that a borrower has a claim in damages against a lender which is equal
to or in excess of the debt due does not at law entitle it to resist the lender’s attempt
to exercise its statutory power of sale when this has properly arisen. Elijah arap Bii
v Kenya Commercial Bank (ur) HCCC number 200 of 2000 adopted. Accordingly,
the plaintiff had failed to make out a prima facie case with a probability of success.
4. As the plaintiff had put up the property as security for the loan with full knowledge
that should he default it would be sold, he had converted it into a commodity for
sale and there was no commodity for sale the loss of which could not be adequately
compensated in damages.The forced sale value of the property was KShs. 1.5 million,
an amount well within the means of the defendant. Even if the defendant had shown
that he had a prima facie case with a probability of success, the application would still
fail on the merits as he had not satisfied that court that if the sale proceeded he would
suffer irreparable injury which could not be compensated by an award of damages.

1.29.2 Does an Injunctive Order Lapse if not Served Within Three Days?
Order 40, rule 4(3) of the Civil Procedure Rules provides as follows:
“In any case where the court grants an ex parte injunction the applicant shall within three
days from the date of issue of the order serve the order, the application and pleadings on
the party sought to be restrained. In default of service of any of the documents specified
under this rule, the injunction shall automatically lapse.”

Always remember that Order 40, rule 3 (3) requires that when an ex parte injunction
is granted the applicant shall within three days from the date of the order, serve the
order, the application and the pleading on the party sought to be restrained.
The dilemma faced by the plaintiff in complying with the three-day window is
when the defendant cannot be traced or when there is a delay in extracting the order
that needs to be served by substituted service and the order is obtained late on a Friday
afternoon. The effect is that the weekend eats into the strict time lines imposed by
Order 40, rule 3 (3). Some judges have gone ahead and held that if an order is not
served within three days then the order automatically lapses.

1.29.3 Tips
However, it is important to note the following, when faced with an objection to
service outside the three-day rule:
In most instances injunctions are heard in the afternoons. The Interpretation and
General Provisions Act at section 57 addresses computation of time as follows:
57. Computation of time
In computing time for the purposes of a written law, unless the contrary intention
appears—
(a) a period of days from the happening of an event or the doing of an act or thing
shall be deemed to be exclusive of the day on which the event happens or the
act or thing is done;
(b) if the last day of the period is Sunday or a public holiday or all official non-
working days (which days are in this section referred to as excluded days), the
period shall include the next following day, not being an excluded day;
(c) where an act or proceeding is directed or allowed to be done or taken on a
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certain day, then if that day happens to be an excluded day, the act or proceeding
shall be considered as done or taken in due time if it is done or taken on the next
day afterwards, not being an excluded day;
(d) where an act or proceeding is directed or allowed to be done or taken within
any time not exceeding six days, excluded days shall not be reckoned in the
computation of the time.
Order 50, rule 8 of the Civil Procedure Rules refers to the exclusion of a day if it is
not expressed to be a clear day.
The court has discretion in any event to extend time under section 95 of the Civil
Procedure Act that reads:
“Where any period is fixed or granted by the court for the doing of any act prescribed or
allowed by this Act, the court may, in its discretion, from time to time enlarge such period,
even though the period originally fixed or granted may have expired.”

Article 159 of Constitution and section 1B of the Civil Procedure Act require the
court to determine matters with substantive justice in mind. Is justice served when
an order is given for 14 days only to be discharged because of non-service within
three days? The business of the court is to justly hear the parties and not be derailed
by subsidiary legislation that may destroy a citizen’s legitimate expectation that the
injunction application shall be determined on the merits.

1.29.4 When a Court Rigidly Applies the Three-Day Rule

An illustration of the court’s rigid application of Order 40, rule 4(3) is the case of Emfil
Limited v Attorney General and 424 others.119 Some of the respondents orally moved the
court for the discharge of the orders of injunction earlier issued on 27 May 2015 on
the grounds, inter alia, that they had not been served with the order within three days.
The order was to be served by substituted service and the plaintiff argued that it had
to be rectified hence the delay. The court allowed the lifting of the orders and held:
“The orders were given on 27 May 2015 and issued on 2 June 2015.They were placed on
the newspapers of 12 June 2015.

The applicants’ counsel explained that the delay was occasioned by their quoting a wrong
O.C.S and police station which error they had to amend before serving the order. From
the record, the application to correct the error was filed on 5 June 2015 and the Orders
granted on 8 June 2015. The advertisement was thus placed outside the 3 days if we
assumed to go by the date of 8 June 2015 as date of issue. The applicant has justified
the delay that in the end the defendants were served and no prejudice has been suffered.
Unfortunately, the rules is (sic) silent on whether or not the compliance with this order is
subject to any prejudice suffered by any party. The orders of injunction issued ex parte on
27 May 2015 have indeed lapsed by operation of law as they were not served within the
3 days as provided under order 40, rule 4(3). This is my finding.’’

1.29.5 Courts have departed from the Stringent Three-Day Rule

A good interpretation of the law concerning service of injunctive orders outside the
three-day window was given by Justice Angote in the case of Global Real Estate v Simone

119 [2015] eKLR

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138 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Mancini and Sara Ferrar.120 On 18 November 2013, the court issued an ex-parte Order
restraining the defendants or their agents from undertaking any further construction
of the roof of villa 47 which was next to the plaintiff ’s residential premises pending
the hearing of the suit. The plaintiff only managed to serve the Order after spending
time tracing the 1st Defendant. The Order was served after three days but within 14
days from the date of issue.
The defendant’s counsel submitted that by the time his client was served with the
Order, the same had automatically lapsed pursuant to the provisions of Order 40, rule
4(3). There was therefore no Order to be obeyed by his client and no contempt was
committed.
The court held as follows [between paragraphs 14 and 23 of the Ruling]:
“I do not agree with that argument. It is trite law that once the court issues an order, a
party served with such an order must first of all obey it and then either move the court to
vary or discharge it or appeal against the Order.

It is my view that it is not in the province of litigants and their advocates to decide the
validity or otherwise of court orders notwithstanding the provisions of the law. In the
case of Johnson v Walton (1990) 1 FLR 350 at 352, Lord Donaldson, M.R. held as follows:

“It cannot be too clearly stated that when an injunctive order is made or when an
undertaking is given, it operates until it is revoked on appeal or by the court itself, and it
has to be obeyed whether or not it should have been granted in the first place.”

The Order that I issued on 18 November 2013 clearly states that it was to remain valid
for 14 days. It was served within 14 days and the defendants were under an obligation to
obey it until they set it aside. One of the grounds for setting aside could be that the Order
was not served within three days as stipulated by the Rules.

It is only the court that can determine whether indeed such an Order had lapsed after
analysing the law and the circumstances of each case. Rules made under the Civil
Procedure Act are subservient to the provisions of the Act and it is in that scheme of
things that the court has to interpret them.

Indeed, Rules under the Civil Procedure Act are not cast in stone. The said Rules are
subject to the inherent jurisdiction of the court as stipulated under section 3A of the Civil
Procedure Act and must be read wholesomely.

I say so because although Order 40, rule 4(3) provides that ex parte injunctive orders
must be served within three days, the Rule must be read alongside section 3A of the
Civil Procedure Act which provides that nothing in the Act shall limit or otherwise affect
the inherent power of the court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the court.

The inherent jurisdiction of this court, which is a residual jurisdiction that ought to be
invoked in special circumstances, is meant to maintain the integrity and character of the
court and ensure that the Orders of the court, where appropriate, are not issued in vain.

Order 40, rule 4(3) of the Civil Procedure Rules should also be read together with the
provisions of Order 50, rule 6. That Rule provides that where a limited time has been

120 [2014] eKLR

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Pleadings Without Tears- Tips in Civil Litigation 139

fixed for doing any act or taking any proceedings under the Rules, or by an order of the
court, the court shall have power to enlarge such time upon such terms as the justice of
the case may require.

It is in light of the above provisions of the law that I disagree with the argument that
because the defendants were served with the Order of 18 November 2013 after three days
had lapsed, there was no Order to be obeyed. Such a scenario and interpretation of the
Rule can only bring disrepute to the entire trial process and the integrity of court orders.

What the parties who are supposed to be served with injunctive orders will invariably do
to defeat justice is to disappear the moment they learn that an ex parte order has been
issued against them just to re - appear on the fourth day and continue with whatever
activity the court would have stopped them from doing. That is an absurdity that a court
of law and equity cannot allow..

A similar position as in the Global Real Estate case was adopted by Justice Sewe in her
Ruling delivered on 30 March 2016 in the case of Bekya Floriculture Limited v Gimalu
Estates Limited.121 The defendant argued that the ex parte orders were not served upon
them within three (3) days as envisaged under the provisions of Order 40, rule 4(3)
of the Civil Procedure Rules. The court dismissed this argument and held as follows:
“The above provision is couched in peremptory terms yet it is clear that there was no
compliance therewith on the part of the plaintiff/applicant. Nevertheless, the court record
shows that the court thereafter stayed Orders No. 3 and 4 of the ex parte Orders issued
on 12 October 2011 pending inter-partes hearing of the defendant’s application dated 19
October 2011. It appears then, the fact that the ex parte orders had not been served upon
the defendant within three (3) days had not been brought to the attention of the Court.
The defendant itself filed an application on 19 October 2011 seeking to stay the said ex
parte orders, an acknowledgement that it was valid and subsisting as at 19 October 2011.
Accordingly, I agree with the submissions made by the plaintiff ’s Counsel that it would
be absurd to ignore the supervening court orders, which orders have not been set aside
as being invalid. Moreover, there is no evidence that the defendant promptly took issue
with the late service of the ex parte orders. More importantly, no demonstrable prejudice
has been visited on the defendant. In the circumstances foregoing, this Court is far from
persuaded to the viewpoint that the ex parte orders of 12 October 2011 automatically
lapsed by virtue of late service…In view of the foregoing, I take the view that the ex parte
injunction orders are still in place and therefore the same ought to be obeyed as valid
Court Orders until set aside or discharged.’’

1.30 Duty of Parties to Obey Court Orders

If an order has been given ex-parte for 14 days and served outside the 3-day timeline
but within the 14 days, a party is well advised to obey the court order.
In the case of Omega Enterprises (Kenya) Limited v Kenya Tourist Development
Corporation Limited and 2 others122 the Court of Appeal extolled the necessity and
mandatory obligation to obey court orders and not to ignore them.

121 [2016] eKLR

122 [1998] eKLR, [1993] LLR 2525 (CAK)
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140 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Facts
The respondent’s advocate had on 18 December 1992 filed an injunction application
in the High Court and obtained temporary injunction relief on the following terms:
“The 2nd prayer of Chamber Summons of 18 December 1992 is hereby granted until
4.1.1993 when the case will be heard inter-partes. Respondent to be served. Costs in the
cause. Photocopy may be served.”

On 18 December 1992, the suit property was declared sold to Omega as the highest
bidder, for KShs. 31 million. The dispute was whether or not the receiver or the
auctioneer had been served with the aforesaid court order, before the fall of the
hammer on 18 December 1992. According to the receiver, who was present at the
auction, the hammer had fallen at about 10.30 a.m. and the contract of sale was signed
at 10.40 a.m. and that no one came into the auction to serve the court order until after
the agreement had been signed. On the other hand, there was an affidavit of Timothy
Njuguna the investment manager of K.T.D.C. He deponed that M/S Shapley Barret &
Co. Advocates had informed the auctioneer and every bidder of the injunction order.
He went on to state that soon after the sale and before any payment of the deposit was
made by the purchaser, the auctioneer was served with the injunction order. The sale
price, he said, was far below the reserve price. Mohammed Yunis Sroya employed by
m/s Shapley Barret & Co. as a Senior Law Clerk, by his affidavit sworn on 8 January
1993 deponed that at about 9.10 a.m. he informed the auctioneer and the receiver
that an application under a certificate of urgency for an ex-parte injunction to stop the
sale had been filled; and that at about 10.00 a.m. he again spoke with the auctioneer
and the receiver telling them that the order had been granted and arrangements were
being made to serve the order upon them. He has further deponed that the receiver
informed him that he would await service of the order and that the order was served
upon them at 10.50 a.m.
The said application of 18 December 1992 came for inter partes hearing on 11
January 1993 before Akiwumi, J. (as he then was), in the presence of Mr. Oyatsi for
K.T.D.C. and Mr. Le Pelley for Capital and the receiver. Mr Oyatsi simply asked the
court to grant injunction pending hearing of the suit and submitted that a seller had
to ensure that fair price was obtained and that the price was not fair. Mr. Le Pelley
opposed the grant of injunction as he submitted, K.T.D.C had not suffered irreparably.
He also submitted that the balance of convenience was not in favour of the injunction
being granted. He further submitted that anyone injured by wrongful sale shall have
remedy only by way of damages under section 72(1) of Registered Land Act. He also
submitted that it was the Hotel only which had the right of redemption when the suit
property was sold at the auction sale. He further submitted that the auctioneer found
the injunction order only after the auction. In reply Mr. Oyatsi submitted that on a
balance of convenience, injunction should be granted as Capital and the Bank had
securities in their favour and were not going to suffer any loss.
The High Court on 15 January 1993 held:
“The only orders that commend themselves to me and having regard to my inherent
powers under section 3A of the Civil Procedure Act are that the purported public
auction of the Hotel on 18 December 1992 is illegal, invalid and of no effect and the
injunction granted on that day is hereby confirmed and shall continue in force until the
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determination of the substantive suit.”

Omega appealed from the order and succeeded.

Gicheru, JA. (as he then was) held as follows:
“Counsel for the second and third respondents, Mr. Le Pelley, was, however, of the view
that an order of the superior court unless set aside remains as such and until then it
must be complied with. At any rate, according to Mr. Le Pelley, the provisions of Order
XXXIX, rule 3(1) of the Rules are directory rather than being mandatory and the failure
of the superior court to comply with those provisions in the instant appeal did not take
away its jurisdiction to grant an ex parte injunction order. Indeed, the failure of that court
to record the reasons for delaying with an application ex parte in terms of Order XXXIX,
rule 3(1) of the Rules is an undue technicality for that failure may very well have been an
oversight which should not be used as authority to ignore an ex parte order of a superior
court legitimately made and which can only be challenged by an application to set it aside.
To hold otherwise would be a recipe for disorder, counsel concluded.

Order XXXIX, rule 3(1) of the Rules is in the following terms:

“3.(1) Where the court is satisfied for reasons to be recorded that the object of
granting the injunction would be defeated by delay, it may hear the application
ex parte.”
Clearly, from the foregoing provisions, the hearing of an application for injunction
ex parte can only be legitimate where the court is satisfied that the object of granting
the injunction would be defeated by delay and that satisfaction must be manifested
by the recorded reasons of the court. Generally, an injunction will be granted ex parte
only in cases of emergency or in cases of urgency and there is no way of knowing of
the existence of any of these two factors unless the same is apparent on the record of
the court. A matter may be one of urgency either because the matter is too urgent to
await a hearing notice, for instance, where the property is in danger of being lost or
destroyed or because the very fact of giving notice may precipitate the action which
the application is designed to present – See London and Country Banking Co. v Lewis,
(1882) 21 CH. D. 490; Fenwish v East London Railway, (1875) L.R. 20 Eq. 544 at 547
and Brink’s – Mat v Elcombe [1988] 3 All E.R. 188 at 193. Hence the need to show
that there are strong grounds to justify the application being made ex parte. Indeed,
where proceedings are taken by a plaintiff in the absence of the defendant, it is most
important that there should be at every stage of the proceedings a strict compliance
with the rules. This was not so, as is apparent from the record of the superior court in
the instant appeal, at the ex parte stage of the proceedings taken by the first respondent
as that court did not comply with Order XXXIX, rule 3 (1) of the Rules. But let
me quote a passage in the judgment of Romer, L.J.in Hadkinson v Hadkinson, [1952]
2 All E.R. 567 at 569 which was quoted with approval by the House of Lords in the
judgment of Lord Diplock in Isaacs v Robertson, [1984] 3 All E.R. 140 at 142:
‘It is the plain and unqualified obligation of every person against, or in respect of, whom
an order is made by a court of competent jurisdiction to obey it unless and until that order
is discharged. The uncompromising nature of this obligation is shown by the fact that it
extends even to cases where the person affected by an order believes it to be irregular or
even void. Lord Cottenham, L.C., said in Chuck v Cremer (1846) 1 Coop temp Cott 338
at 342, 47 ER 884 at 885: “A party, who knows of an order, whether null or valid, regular
or irregular, cannot be permitted to disobey it…. It would be most dangerous to hold
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142 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

that the suitors, or their solicitors, could themselves judge whether an order was null or
valid – whether it was regular or irregular. That they should come to the Court and not
take upon themselves to determine such a question. That the course of a party knowing
of an order, which was null or irregular, and who might be affected by it, was plain. He
should apply to the Court that it might be discharged. As long as it existed it must not be
disobeyed.” Such being the nature of this obligation, two consequences will, in general,
follow from its breach.The first is that anyone who disobeys an order of the court……….
is in contempt and may be punished by committal or attachment or otherwise.’

In the same case at page 143 of the same report Lord Diplock went on to say:
“there is a category of orders of such a court which a person affected by the order is entitled
to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of
the court without his needing to have recourse to the rules that deal expressly with
proceedings to set aside orders for irregularity and give to the judge a discretion as to the
order he will make. The judges in the cases that have drawn the distinction between the
two types of orders have cautiously refrained from seeking to lay down a comprehensive
definition of defects that bring an order into the category that attracts ex debito justitiae the
right to have it set aside, save that specifically it includes orders that have been obtained in
breach of rules of natural justice.”

1.31 A Purchaser at A Public Auction must be Made a Party to the

Suit
An excellent analysis of the position of the purchaser who bids at a public auction
and later finds that injunctive orders were issued in his absence was also considered in
Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited and
2 others (supra).
Gicheru, JA (as he then was) held as follows:
“In the instant appeal, the appellant was never a party to the first respondent’s suit against
the second and third respondents in which the ex parte order of 18 December 1992
was made by the superior court quite clearly in defiance of Order XXXIX rule 3(1) of
the Rules. Subsequent inter partes hearing on 11 January 1993 of the first respondent’s
Chamber Summons referred to earlier in this judgment was without any reference to
the appellant whose interests after 18 December 1992 would be affected by the first
respondent’s litigation against the second and third respondents. Hence, the order of the
superior court dated 15 January 1993 that the public auction of the property known
as L.R. Eldoret Municipality/Block 4/69 together with the improvements thereon
including the business carried thereon under the name of Eldoret Sirikwa Hotel Limited
was illegal, invalid and of no effect and the confirmation of the certainly irregular ex parte
injunction order of 18 December 1992 which was to continue until the determination of
the substantive suit was, as it affected the interests of and without the appellant being given
an opportunity to be heard, clearly in breach of the rules of natural justice and attracts
ex debito justitiae the right to have it set aside. In the result, I would allow the appellant’s
appeal, set aside the order of the superior court dated 15 January 1993 and order that
the costs of this appeal be awarded to the appellant against the first, second and third
respondents. As Tunoi and Pall, JJ.A. agree it is so ordered.’’
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Pleadings Without Tears- Tips in Civil Litigation 143

1.32 An Ex-Parte Injunctive Order is Only Valid for 14 Days

Pall, J.A in the case of Omega Enterprises (Kenya) Limited v Kenya Tourist Development
Corporation Limited and 2 others addressed the question of an order that was granted ex-parte for
16 days. He held thus:
‘Also Order 39 rule 3(2) mandates that no ex parte injunction in any case shall be for more
than 14 days. I agree with Mr. Gautama that the learned Judge granted the said ex parte
injunction for 16 days clearly in defiance of the mandatory provisions of this subrule. I
agree with Mr. Gautama that an order granted in defiance of order 39, rule 3 is invalid,
and null and void. It cannot have any legal effect.

In Macfoy v United Africa Ltd [1961] 3 All ER. 1169 Lord Denning said at page 1172:

“If an Act is void, then it is in law a nullity and not a mere irregularity. It is not only
bad but incurably bad. There is no need for an order of the court to set it up aside. It is
automatically null and void without more ado, though it is sometimes convenient to have
the court declare it to be so. And every proceeding which is founded on it is also bad and
incurably bad. You cannot put something on nothing and expect it to stay there. It will
collapse.”

As the proceedings of 15 January 1993 were in pursuance of the order of 18 December

1992 they were also of no legal effect and a nullity in law. It is immaterial for the purposes
of this appeal whether or not the order of 18 December 1992 had been set aside. In any
event it was not addressed to Omega. Also there is no doubt that the learned Judge could
not have declared the sale of the suit property illegal or void without first giving Omega
an opportunity of being heard which is a breach of one of the fundamental rules of
natural justice. For these reasons I would allow the appeal with costs and set aside the said
order of 15 January 1993.’’

1.33 Knowledge of court orders

There are two schools of thought - those that require personal service of a court order
and those that find it sufficient if knowledge of the court order is established.
In the case of Hon. Basil Criticos v The Hon. Attorney General and 8 others123 Justice
Lenaola relied on the importance of knowledge of court orders as sufficient in law to
sustain an application for contempt. The judge held:
“14. I must now address my mind to the issue as to whether the petitioner has satisfied the
benchmark for citing the 4th, 5th and 7th respondents for contempt of Court orders.
This would be clear after examining the applicable law. There is a conservatory
order in place issued on 17 February 2012. Thus the law applicable to cite one for
contempt for violating this conservatory order would be the law relating to civil
contempt under the Judicature Act.
15. The law of civil contempt under the Judicature Act is provided for under section
5(1) of the Judicature Act which I reproduce as follows:
“5.(1) The High Court and the Court of Appeal shall have the same power to
punish for contempt of court as is for the time being possessed by the High
Court of Justice in England and that power shall extend to upholding the
authority and dignity of Subordinate Courts.”
16. Two issues arise from the above provisions. Firstly, only the High Court and the

123 [2012] eKLR

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144 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Court of Appeal can entertain an application for contempt. Secondly, while the
substantive law and power to punish for contempt are granted by the Judicature
Act, the procedural law is to be found in the contemporary English law of civil
contempt as it changes from time to time. Presently, this law is retained in the Rules
of the Supreme Court in Schedule 1 of the Civil Procedure Rules.
17. The question I must answer is whether the procedure of instituting and prosecuting
contempt of court application has been adhered to by the petitioner. Over the years,
the courts have been very strict in entertaining an application for civil contempt
of court. Such an application can only be allowed only if the particular order of
court has been served on that person and the copy of that order must be endorsed
with a notice informing the person whom the copy is served that if he disobeys the
order, he is liable to the process of execution to compel him to obey the order -
See Mwangi Wangondu v Nairobi City Commission CA 95/1988 (Unreported), Jacob
Zedekiah Ochino and another v George Aura Okombo CA 36 of 1989 (unreported).
18. Mr. Nyakundi for the 1st interested party in opposing the application argued that
the petitioner has not then satisfied law of contempt in citing the 4th,5th and 7th
respondents for contempt of Court. He submitted that the parties who have been
named as contemnors have not been shown to be aware of the orders of the Court
since there was no penal notice that was served upon the contemnors.
19. A perusal of the record reveals that the orders of 17 February 2012 were given by
consent of the parties. There is a penal notice attached to the order. Did the 4th, 5th
and 7th respondents have knowledge of these orders? Mr. Gichuhi urged me to find
that the contemnors had knowledge of the orders as the issue of the Court orders
issued on 17 February 2012 was captured in the print media more than once. He
relied on the newspaper cuttings exhibited in the affidavit of the petitioner. Even if
I was to assume for a moment that the 4th, 5th and 7th respondents had knowledge
of the orders of 17 February 2012, would that satisfy the requirement of personal
service as provided for in our law? In Re Tuck Murch v Loose More (1906) Ch. 692
it was observed that, “...knowledge is higher than service...service is unnecessary
where there is knowledge.”
20. The issue of knowledge of orders as being sufficient was until recently, alien in our
jurisprudence. In Kariuki and others v Minister for Gender, Sports, Culture and Social
Services and others [2004] I KLR 588, it was held:
“ ...but in our law, service is higher than knowledge and since the service here
was frustrated…I shall hold in accord with the existing law that there was no
service”. This was made following the decision in Wangondu (supra).
However, the law has changed and as it stands today knowledge supersedes personal
service and for good reason. This has recently been held in Kenya Tea Growers
Association v Francis Atwoli & 5 others, Petition No.64 of 2010 where I opined as
follows:
“In the case before me, I am more than satisfied that even at the higher level of
beyond reasonable doubt, when an individual has been served with and/or has
knowledge of a court order but not only ignores it but in fact incites others to do
the same, the threshold for contempt has been met. Francis Atwoli in fact went
further to arrogate himself the decision to determine when the strike should end
despite the fact that the Court Order had stopped it. He went further to interpret
it as made without jurisdiction and that only the “Workers Court”, (the Industrial
Court) had jurisdiction to determine the matter. He did not do so once but on a
number of occasions as he flew by helicopter from place to place on 18 October
2012. His contempt was obvious and his conduct and words can attract no other
finding.”
The point above is that where a party clearly acts and shows that he had knowledge
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Pleadings Without Tears- Tips in Civil Litigation 145

of a Court order, the strict requirement that personal service must be proved is
rendered unnecessary. That should be the correct legal position and I subscribe to
it.
See also the finding of Kimaru, J, in Justus Wanjala Kisiangani and 2 others v City Council
of Nairobi and 3 others [2008] eKLR where the learned Judge had this to say:
“I have perused the proceedings before the subordinate court. It is evident that the initial
order granted by the subordinate court on 23 February 2007 was extended from time
to time till 3 August 2007 when the respondent breached the said order by demolishing
the structures built on the suit property. During all this time that the interim orders
were extended, the respondent’s advocate was present in court. The respondents in this
application cannot therefore be heard to say that they were unaware of the existence of the
said order requiring them to maintain status quo. I think the respondents are labouring
under misconception that since they were not served with the subsequent orders in regard
to the interim orders, then they were under no obligation to obey the same. It is trite law
that any party who is aware of a court order is required to obey the same”.

1.34 Material Non-Disclosure - the Bane of the Secretive Client

Woe betide the client who either chooses to walk the path of deceit or spins tales of
woe spiced with half-truths and suppression of material facts. Gloom and despair await
you once the deceit is exposed. Take heed - the truth shall set you free if you come
clean ab initio.
The most concise exposition on the law pertaining to serious material non-
disclosure was adroitly analysed by the late Justice Hewett in the case of John Muritu
Kigwe and another v Agip (Kenya) Limited.124 The plaintiff ’s deliberate concealment/
suppression of material facts drew the judge’s wrath and indignation and ordered that
the injunction application be dismissed with costs to be taxed on an advocate-client
basis.The judge summarised the position on material non-disclosure after considering
with approval several English authorities on the point. The summary is as follows:
a. It is the duty of a party asking for an injunction to bring under a notice to the court all
facts material to the determination of his right to that injunction; and it is no excuse
for him to say that he was not aware of the importance of any facts which he has
omitted to bring forward.125
b. The material facts are those which it is material for the judge to know in dealing
with the application as made: materiality is to be decided by the court and not by
assessment of the applicant or his legal advisers.
c. The applicant must make proper inquiries before making the application.The duty of
disclosure therefore applies not only to material facts known to the applicant but also
to any additional facts which he would have known if he had made inquiries.
d. The extent of the inquiries which will be held to be proper, and therefore necessary,
must depend on all the circumstances of the case including (i) the nature of the case
which the applicant is making when he makes the application; and (ii) the order for
which the application is made and the probable effect of the order on the defendant.

124 Milimani HCCC No. 2382/99 (unreported)

125 Citing the dicta in the cases of The King v General Commissioners for Income Tax (1917) 1 KB 486, and Brinks
Mat. Ltd v Elcombe & Others (1988) 1 WLR 1350.
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146 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

e. If material non-disclosure is established the court will be “astute” to ensure that a

plaintiff who obtains (an ex parte injunction) without full disclosure is deprived of any
advantage he may have derived by that breach of duty.
f. Whether the fact not disclosed is of sufficient materiality to justify or require
immediate discharge of the order without examination of the merits depends on the
importance of the fact to the issues which were to be decided by the judge on the
application.
g. It is not for every omission that the injunction will be automatically discharged. The
court has the discretion notwithstanding proof of material non-disclosure which
justifies or requires the immediate discharge of the ex parte order, nevertheless to
continue the order, or to make a new order on terms.
In the case of Orion East Africa Ltd v Ecobank Kenya Ltd and another126 the Court of
Appeal dismissed an appeal by the appellant who sought to set aside the orders of the
superior court that declined to grant an injunction. The court found that the charge
had properly been drawn and executed and that substantial amount of money had
been credited to the appellant’s account which money had been drawn and utilised. It
found that the appellant had not demonstrated that the debt had been repaid.
On the issue of material non-disclosure, the Court of Appeal held [pages 1-11 at
pages 10a-10b]
“The court was right in holding that the appellant was seeking an equitable relief with
unclean hands. In Dalip Singh v State of U.P and others, 2010 (2) section 114, the Supreme
Court of India stated, inter alia, “... it is now well established that a litigant, who attempts
to pollute the stream of justice or who touches the pure fountain of justice with tainted
hands, is not entitled to any relief, interim or final.”

We are not saying that the appellant herein should not expect any relief from the trial
court after the full hearing, but on the basis of the trial judge’s findings as highlighted
hereinabove, we are satisfied that the appellant’s application for interlocutory injunction to
restrain the 1st respondent from exercising its statutory power of sale was rightly rejected.’’

1.34.1 Courts Set Aside Ex-Parte Orders Obtained Through Material Non-
Disclosure
Justice Odunga in the case of Republic v Principal Registrar of Government Lands and
others Ex-Parte John Ngugi Gathumbi127 discharged orders that had been obtained
through suppression of facts. His Lordship held:
“With respect to the issue of non-disclosure, the law is clear that where a party, at the ex
parte stage of an application fails to disclose relevant material to court and thus obtains an
order from the court by disguise or camouflage the court will set aside the ex parte orders
so obtained. However, what is material and what is not must depend on the particular
circumstances of the case. The issue was deliberated upon at length in Bahadurali Ebrahim
Shamji v Al Noor Jamal & 2 others, Civil Appeal No. 210 of 1997 where the Court of
Appeal stated:

“It is perfectly well-settled that a person who makes an ex parte application to the court

126 [2015] EKLR

127 [2014] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 147

– that is to say, in the absence of the person who will be affected by that which the court
is asked to do – is under an obligation to the court to make the fullest possible disclosure
of all material facts within his knowledge, and if he does not make the fullest possible
disclosure then he cannot obtain any advantage from the proceedings, and he will be
deprived of any advantage he may have already obtained. It has been for many years the
rule of court, and one which it is of the greatest importance to maintain, that when an
applicant comes to the Court to obtain relief on an ex parte statement he should make a
full and fair disclosure of all the material facts – facts, not law. He must not misstate the
law if he can help it – the court is supposed to know the law. But it knows nothing about
the facts, and the applicant must state fully and fairly the facts, and the penalty by which
the court enforces that obligation is that if it finds out that the facts have not been fully
and fairly stated to it, the court will set aside any action which it has taken on the faith
of the imperfect statement…In considering whether or not there has been relevant non-
disclosure and what consequence the court should attach to any failure to comply with the
duty to make full and frank disclosure, the principles relevant to the issues in these appeals
appear to include; (i) The duty of the applicant is to make full and fair disclosure of the
material facts. (ii) The material facts are those which it is material for the judge to know
in dealing with the application made; materiality is to be decided by the court and not
the assessment of the applicant or his legal advisers. (iii) The applicant must make proper
inquiries before making the application. The duty of disclosure therefore applies not only
to material facts known to the applicant but also to any additional facts which he would
have known if he had made sufficient inquiries. (iv) The extent of the inquiries which
will be held to be proper, and therefore necessary, must depend on all the circumstances
of the case including (a) the nature of the case which the applicant is making when he
makes the application, (b) the order for which the application is made and the probable
effect of the order on the defendant, and (c) the degree of legitimate urgency and the time
available for the making of the inquiries. (v) If material non-disclosure is established the
court will be astute to ensure that a plaintiff who obtains an ex parte injunction without
full disclosure is deprived of any advantage by that breach of duty. (vi) Whether the fact
not disclosed is of sufficient materiality to justify or require immediate discharge of the
order without examination of the merits depends on the importance of the fact to issues
which were to be decided by the judge in the application. The answer to the question
whether the non-disclosure was innocent, in the sense that the fact was not known to
the applicant or that its relevance was not perceived, is an important consideration but
not decisive by reason of the duty on the applicant to make all proper inquiries and
to give careful consideration to the case being presented. (vii) Finally, it is not every
omission that the injunction will be automatically discharged. A locus pentitentiae (chance
of repentance) may sometimes be afforded. The Court has a discretion, notwithstanding
proof of material non-disclosure which justifies or requires the immediate discharge of
the ex parte order, nevertheless to make a new order on terms: when the whole of the
facts, including that of the original non-disclosure, are before it, the court may well grant
such a second injunction if the original non-disclosure was innocent and if an injunction
could properly be granted even had the facts been disclosed…In the instant case the so-
called material facts repeatedly alleged to have been either suppressed, concealed or not
disclosed by the respondents are only two pending applications which were never heard
nor determined by the superior court. It is submitted that the court was consequently
misled but the court cannot understand how this could be so…It is accepted that in cases
of ex parte proceedings there must be full and frank disclosure to the court of all material
facts known to the applicant but in the instant case everything was in the court record
and was available to the learned Judge for perusal. There was no deliberate concealment
on the part of the respondents. Both the applications were on record and the notice
of discontinuance accompanying the latest application clearly showed what applications
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148 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

were being discontinued and they were not in any sense misleading. Granted that the
respondents did not inform the learned Judge of the pending applications, the issue is:
were the material facts those, which it was material for the learned Judge to know in
dealing with the application as, made? The answer to this must be in the negative since
the learned Judge was satisfied that the pending applications did not preclude him from
doing justice to the parties especially in that the applications and the suit had not been
heard on merit. He was also concerned that injury to the respondents, which could not
be compensated for damages, could be occasioned by a delay. This mode of approach to
the matter before him cannot be faulted”.

1.35 Undertaking as to damages

By the undertaking as to damages the party obtaining the order undertakes to abide by
any order as to damages which the court may make in case it should afterwards be of
the opinion whether the defendant has, by reason of the order, sustained any damages
which such party ought to pay.128
The plaintiff ’s undertaking as to damages on an order for an injunction remains
in force notwithstanding the dismissal or discontinuance of the action, and if the
plaintiff ultimately fails on the merits the defendant is entitled to an inquiry as to the
damages sustained by reason of the interlocutory injunction, unless there are special
circumstances. The undertaking applies, even if the plaintiff has not been guilty of
misrepresentation, suppression or other default in obtaining the injunction, and is
equally enforceable whether the mistake in granting the injunction was on a point of
law or on the facts.129

1.35.1 What is the Object of the Undertaking as to Damages?

A good rendition of the nature and object of an undertaking as to damages was
rendered by Justice Gikonyo in the case of Mumias Sugar Company Limited v Option
two Limited and another.130 The judge held:
“[26] Undertaking as to damages is not aimed at giving any comfort to or to sooth
a party or to dilute the effect of a court order; it serves much more defined
legal purposes, which are two-fold: 1) To offer protection in and entitle the party
against whom the interlocutory order is issued to claim for damages for injury
suffered by the order should the court eventually find that the interlocutory order
ought not to have been issued in the first place; 2) To enable the court to do justice
to such party who has been injured by an order which had been wrongly issued.
The misadventure of the judge in issuing the offending order may be as a result of
the judge not knowing all the facts of the case or having been misled or restricted
by the affidavit evidence before him or by the powerful arguments of counsel. See
what the court said in Chatur Radio Services v Phonogram Limited that:
“The object in insisting upon an undertaking as to damages is that if by
misadventure through the judge not knowing all the facts, such as being misled by
the affidavit evidence before him or by the arguments of counsel, and injunction
is granted on an interlocutory application which ought not to have been granted,

128 Halsbury’s Laws of England 4th Edition Reissue Volume 24 at paragraph 982 quoting the case of Tucker v New
Brunswick Trading Co. of London (1890) 44 ChD 249 CA.
129 Halsbury’s supra at paragraph 983
130 [2014] eKLR
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Pleadings Without Tears- Tips in Civil Litigation 149

then the defendant is entitled to some remedy in damages; thus, the defendant
becomes protected against the damage he may suffer by the wrongful issue of
the injunction so that the whole purpose of that injunction, which is to preserve
matters in status quo until the issue to be investigated in the suit can finally be
disposed of, is not rendered nugatory. Save therefore in exceptional circumstances,
an undertaking as to damages is required when an interlocutory injunction is
granted in order that the court granting such injunction may be able to do justice
if the injunction was wrongly granted.
[27] However, I reckon that, although the question whether the plaintiff should give an
undertaking as to damages is a matter for the discretion of the court, except where
there are exceptional circumstances, the undertaking should always be required
where an interlocutory injunction has been granted. That is a principle of law
upon which the discretion should be exercised by the court on this subject. I,
therefore, do not accede to the plaintiff ’s argument that the defendants have not
shown that the plaintiff will be unable to pay any damages that may be suffered by
the defendants or any damage will occur at all. Neither the plaintiff ’s ability nor
inability to pay an amount of damages will prevent or compel the court to call
for an undertaking as to damages from the plaintiff, respectively.   As such, cases
of this nature, where Anton Piller orders and an injunction have been issued, an
undertaking as to damages is desirable unless there are special reasons which impel
the court to decline the request. The undertaking should not be seen as a punch
to the plaintiff ’s success but as recognition of equality and protection of parties
before the law, and a way of dispensation of justice to all. More so, there is really no
prejudice that the plaintiff will suffer or can be conceptually read in the giving of a
written undertaking as to damages in a case such as this. I find there are no special
circumstances which would prevent the court from requiring the plaintiff to give
an undertaking as to damages should the court be of the opinion upon plenary
trial of the case, that the injunction and the Anton Piller orders herein ought not
to have been issued.’’
A principle in granting an injunction is that in giving protection to the applicant
the Court must give regard to the corresponding “need of the defendant to be
protected against injury resulting from having been prevented from exercising his
own legal right.” (Gicheru, J.A) in Rockland Kenya Ltd v Miller131

1.35.2 Courts Should be Vigilant and Order Undertakings to be Given

It defies logic why courts at times do not insist on the applicant providing an
undertaking as to damages particularly when:
1. The injunction is sought to stop construction of a private development that has
already commenced and third parties like financiers, contractors and purchasers
are affected when a time sensitive project is stopped.
2. It has become the norm for parties whose land had been compulsorily acquired
to rush to court to seek injunctive relief to prevent the contractor from carrying
out the construction pending payment of compensation. The public suffers when
a public infrastructural project is derailed by a court injunction and the contractor
claims damages of millions of shillings per day on account of idle equipment.
The unfortunate thing is that many a times the applicant literally gets away with
murder if the injunction application is dismissed and no damages are assessed for
the losses suffered.

131 [1994] KLR 63. Cited by Justice Tuiyott in the case of Mat International Terminal Limited v Multiple ICD (K)
Ltd & 3 others [2012] eKLR
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150 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

3. The applicant when seeking an injunction with serious ramifications fails to offer
any undertaking as to damages.
4. The applicant prevents a financier from appointing a receiver over rental income
and during the pendency of the injunction application fails to service the debt or
deposit the rental income in an escrow account.

1.35.3 The Australian Case of Love v Thwaites – Beware of Seeking an

Injunction and Suffering an Award of Damages Thereafter
The case of Love v Thwaites and another132 should serve as a warning to litigants in
Kenya when seeking injunctions that cripple or cause immense financial loss to the
defendant. A good illustration in Kenya is when land is publicly acquired and the party
dissatisfied with the award of compensation or delayed payment obtains injunctive
orders that stall the project when vacant possession of the land is denied by a court
order. This case addressed the following points:
• Undertaking as to damages –
• Assessment of damages
• Whether damage of a type or character that was reasonably foreseeable
• Principles applying to assessment
• Mitigation
On account of the unique facts of this case that bear striking similarities to the position
in Kenya, a detailed but summarized account will be given.

Facts
In 2002, the Roads Corporation compulsorily acquired the plaintiff ’s land and
improvements for construction of a road bypass.
In January 2003, just before the contractor was to move into the plaintiff ’s land,
the plaintiff obtained an interlocutory injunction restraining the Roads Corporation,
the respondent, from demolishing or disturbing his property. The injunction defined
with precision the land and property to which it applied (‘the protected area’). In
order to obtain the injunction, the plaintiff gave the usual undertaking as to damages.
The usual undertaking being ‘to abide by any order the Court may make as to
damages in case the Court shall hereafter be of opinion that the defendant shall have
sustained any, by reason of this order, which the plaintiff ought to pay’.
On 23 June 2009, the appellant’s proceeding was dismissed. On 8 July 2009 the
interlocutory injunction was discharged. Following the discharge of the interlocutory
injunction, a judge of the Trial Division directed that there be an assessment of the
respondent’s damages incurred as a result of the injunction.
The assessment of the respondent’s damages was heard by a judge in the Trial
Division over four days in October 2012. On 14 November 2012 the judge ordered
the appellant to pay the respondent damages assessed in the amount of $3,420,389.70
together with interest in the amount of $2,427,258.47.

132 [2014] VSCA 56

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Pleadings Without Tears- Tips in Civil Litigation 151

The plaintiff lost the appeal before the Court of Appeal which held, inter alia:
1. The requirement of the undertaking as to damages is as a response to the anxiety
entertained by the court that otherwise its interlocutory order might lead to
damage for which there could be no redress except by an order for costs.
2. A party seeking an equitable remedy is required to ‘do equity’ and this is the origin
of the requirement that the party giving an undertaking as to damages submit to
such order for payment of compensation as the court may consider to be just.
3. In the circumstances arising here, Mr Love was given an opportunity to consent
to the discharge of the injunction, including by letter dated 31 March 2004 from
the solicitors for the Roads Corporation which adverted to the significant costs
associated with the overpass and outlined the need for the urgent discharge of
the injunction on the basis of changed circumstances which it identified. The
invitation to discharge the injunction was repeated in a letter from the solicitors
for the Roads Corporation dated 29 April 2004, which advised that the loss and
damage caused by the injunction was ongoing and would be claimed pursuant
to the undertaking as to damages in the event that the Roads Corporation was
successful. On each occasion Mr Love refused to discharge the injunction and the
undertaking as to damages continued in force.
4. While there is no suggestion that the usual undertaking was here given lightly,
the consequences that have flowed from the failure of Mr Love to make out his
case at trial have been significant. These consequences provide a salutary lesson to
practitioners and their clients to appreciate the conditions governing the grant of
an interlocutory injunction. The usual undertaking carries serious risks; it would
be wholly erroneous to view it as no more than a ritual or a formality.

Lessons learnt
The Australian case gives valuable lessons to practitioners in Kenya who should advise
their clients that:
1. Any damages awarded assessed on the basis of the undertaking as to damages after
dismissal of the injunction application may wipe out the compensation award
in respect of the land that had been compulsorily acquired. The litigant may
end up not only losing the assessed compensation award but may also suffer the
possibility of paying substantial damages. International construction contracts are
time sensitive and quantify the amount of damages payable for each day of delay.
This is a quick measure of one aspect of the damages suffered.
2. The courts should always insist on the applicant providing an undertaking as to
damages.
3. In the event that a dispute has arisen over the amount of compensation payable,
the respondent should quickly offer to deposit the amount in an interest earning
escrow account.When this offer is made, the court should not stop the construction
project but direct the parties to expedite the valuation of the property. After all,
section 117 of the Land Act, 2012 mandates the Commission to open a special
account into which the Commission shall pay interest on the amount awarded
at the prevailing bank rates from the time of taking possession until the time of
payment.
4. No court should grant drastic orders by granting an injunction, either at the ex
parte stage where a major public interest construction project is underway. The
damages that the taxpayer is made to suffer on account of such injunctions is
catastrophic and the applicants inevitably get away without having to pay for the
colossal damages occasioned.
5. Contractors must acquire the comfort that their contractual obligations when
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152 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

implementing the infrastructural development will not be jeopardized by

injunctions.

1.36 Can The Court Issue an Injunction Pending Appeal Once the Main
Injunction Has been Dismissed?
There is a misapprehension that once the court has dismissed an injunction application,
the court is functus officio and cannot grant an injunction pending appeal.
The English case of Erinford Properties Ltd.v Cheshire County Council133 considered
the jurisdiction to grant a limited injunction pending appeal.

Facts
Megarry, J, had dismissed an application for interlocutory injunction. The Judge,
however, proceeded to grant an ex-parte injunction to the plaintiff pending an appeal
to the Court of Appeal of England.The defendant applied to discharge that injunction
on the ground that the court was functus officio. Dismissing the motion by the defendant
and granting the injunction pending appeal Megarry, J, held at page 454:
“The questions that have to be decided on the two occasions are quite different. Putting
it shortly, on a motion the question is whether the applicant has made out a sufficient case
to have the respondent restrained pending the trial. On the trial, the question is whether
the plaintiff has sufficiently proved his case. On the other hand, where the application is for
an injunction pending an appeal, the question is whether the judgment that has been given is one
on which the successful party ought to be freed to act despite the pendency of an appeal. One of
the important factors in making such decision of course is the possibility that the judgment may be
reserved or varied. Judges must decide cases even if they are hesitant in their conclusions;
and at the other extreme a judge may be very clear in his conclusions and yet on appeal
be held to be wrong. No human being is infallible and for none are there more public
and authoritative explanations of their errors than for judges. A judge who feels no doubt
in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision,
recognize that his decision might be reversed, and that the comparative effects of granting or refusing
an injunction pending an appeal are such that it would be right to preserve the status quo pending
the appeal. I cannot see that a decision that no injunction should be granted pending the
trial is inconsistent, either logically or otherwise with holding that an injunction should
be granted pending an appeal against the decision not to grant the injunction, or that by
refusing an injunction pending trial the judge becomes functus officio quoad granting any
injunction at all.”

This position has been cited with approval by the Kenyan Court of Appeal in various
matters. In Butt v Rent Restriction Tribunal [1982] KLR 417 at page 420 Madan, JA, with
whom the rest of the court agreed held: -

“Megarry, J, as he then was, followed Wilson (supra) in Erinford Properties Limited v

Cheshire County Council [1974]2 All ER 448 at page 454 and also held that there
was no inconsistency in granting such an injunction after dismissing the motion,
for the purpose of the order is to prevent the Court of Appeal’s decision being
rendered nugatory should that court reverse the judge’s decision.” (underlining mine)
The principles of Erinford have been applied by various courts in Kenya.

133 (1974) 2 All ER 448 at pg. 454

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Pleadings Without Tears- Tips in Civil Litigation 153

The Court of Appeal of Kenya in Russell Co. Ltd v Commercial Bank of Africa Ltd
and another 134observed as follows:
“We observed earlier that we should have something to say on the discretion to be exercised
by the High Court when there is an appeal against its refusal to order an injunction. We
would commend the views of Megarry, J (as he then was) in Erinford Properties Ltd v
Cheshire County Council [1974] 2 All ER 448; that the purpose of such an injunction is
to preserve the status quo for a short period until the notice of appeal has been lodged.
Then the High Court can consider whether the nature of the appeal would be rendered
nugatory if an injunction were not continued. It is necessary for the High Court to be
loyal and realistic at this stage, in case wider issues than those relied upon have to be taken
into consideration.’’

1.36.1 What Time Limit Should the Injunction Remain in Force Under the
Erinford Principles?
To benefit from the Erinford principles advocates normally ask for a limited stay of
about 14 days pending the filing of a formal application for stay.
Once an injunction is dismissed and the client instructs you to appeal, move
quickly to the Court of Appeal and lodge the injunction application. Do not forget
to lodge the Notice of Appeal beforehand. While the application is pending, file an
urgent application in the High Court, exhibiting the injunction application [minus
the bulky exhibits] seeking an injunction pending the determination of the Court of
Appeal injunction application. Make sure to bring the application under the court’s
inherent powers and Section 1B of the Civil Procedure Rules. The court may be
more inclined to grant limited injunction as you have demonstrated that an urgent
application is pending determination before the Court of Appeal.
James Juma Muchemi and Partners Limited v Barclays Bank of Kenya Ltd135

Facts
The court had previously granted a conditional injunction on condition that the
plaintiff deposits in court within thirty (30) days the amount claimed by the 1st
defendant. The court directed that failure to deposit the said sum as ordered, the
injunction application was to stand dismissed. The judge extended the interim orders
for 30 days to allow the plaintiff to comply with the order for deposit. He granted the
plaintiff leave to appeal and rejected an oral application by the plaintiff for a stay of 90
days. He directed that in the event the period of 30 days proved to be inadequate, the
parties be at liberty to apply.
On 9 September 2011 the plaintiff filed a Notice of Appeal against the said ruling
and followed the same on 16 September 2011 with an application for injunction in
the Court of Appeal on. The Court of Appeal did not certify the said application as
urgent as at the time since that court was not sitting for Civil matters in Nairobi. The
plaintiff therefore on realizing that the 30 days’ extension of the interim orders was

134 [1985] EKLR

135 [2011] eKLR
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154 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

elapsing, moved the court on 6 October 2011 seeking, inter alia, an injunction pending
the hearing and determination of the said application in the Court of Appeal.
At the hearing of the said motion the plaintiff ’s advocate informed the court
that the parties were due to appear before the Court of Appeal on 18 October 2011
to argue the issue of whether or not the plaintiff ’s application before that Court
was urgent. He submitted that the plaintiff was seeking at least a stay of 90 days. The
defendant’s advocate opposed the application arguing that the court was functus officio
and lacked jurisdiction to hear the application.
The court allowed the application and granted a limited stay of 60 days under the
Erinford principles. The reasoning of the judge was as follows:
“I have seen the Notice of Appeal filed in this court on 8 September 2011.While I cannot
delve into any of the issues which the plaintiff seeks to agitate in the Court of Appeal
as set out in the draft Memorandum of Appeal exhibited in the application before the
Court of Appeal, I am of the view that the Provisions of Order 42, rule 6(2) may not be
applicable in its strict sense to the application before me.That Rule is for stay of execution
pending appeal. If I understood Mr. King’ara well, the application has been brought under
the principles of the Erinford Properties case. In that case, the issue that was considered and
decided upon was whether a judge who has dismissed an injunction application can at
the same time grant one pending an appeal to the Court of Appeal. Clearly, it was not
an issue of a stay of any execution pending appeal. Although granting the prayer sought
may amount to the same thing as stay of execution as Megarry, J found, the considerations
applicable in the Erinford Principle may not be the same to those under Order 42, rule
6(2). There is no provision to grant an injunction pending appeal to the Court of Appeal
under Order 42, rule 6. My understanding is that Order 42, rule 6(2) in its strict sense
applies in a situation where a stay of execution of an order or decree is being sought whilst
under the Erinford Principle, it applies where an injunction is being sought pending
appeal.

An examination of the application before me will show that the prayers sought are not
for stay of execution pending appeal, but grant of the declined injunction pending the
hearing and determination of an application under rule 5(2)(b) of the Court of Appeal
Rules. In my view therefore, when a court in Kenya is applying the Erinford Properties
Principles, it does so under its inherent jurisdiction.

Accordingly, I am inclined to exercise my discretion in favour of the plaintiffs and I grant

prayer No. 3 of the Motion only limited for 60 days from the date hereof. I will not tie
this order to the hearing and determination of the pending application in the Court of
Appeal as is sought by the plaintiffs. I believe that a period of sixty (60) days is enough
for the said application to have come before the Court of Appeal for hearing and in any
event, for the plaintiff to have sought and deposited in Court the amount demanded and
ordered by the Court. The costs of the application will be in the cause.’’

1.36.2 Lapse of Injunction if not Determined within One Year

Before the amendment of the Civil Procedure Rules in 2010, once a litigant obtained
an injunction, he would either sit back and go into legal hibernation for more than
a year or actively seek to frustrate the active prosecution of the suit by any means
possible such as filing applications with the sole aim of prolonging litigation or even
antagonizing the judicial officer by asking for his recusal on the flimsiest of grounds. At
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times these wanton and baseless attacks on the judicial officer achieved their devious
purpose and the vexed officer would recuse himself.
To cure this deliberate act of legal malaise Order 40, rule 6 of the Civil Procedure
Rules, 2010 imposed a one-year time limit for the life of an injunction order. The
Rule reads:
6. Lapse of injunction [Order 40, rule 6]
Where a suit in respect of which an interlocutory injunction has been granted is
not determined within a period of twelve months from the date of the grant, the
injunction shall lapse unless for any sufficient reason the court orders otherwise.

The logical interpretation of Order 40, rule 6 is as follows:

• As soon as the injunction is granted, it is the duty of the plaintiff to get on
with the suit by complying with Order 11 of the Civil Procedure Rules of
the Case Management Conference Rules (applicable in the Commercial and
Admiralty Division of the High Court in Nairobi).
• Once a hearing date is fixed and the hearing either commences or is
postponed because the matter cannot be reached, the judge or magistrate has
the discretion to extend the injunction application if the next hearing date
falls outside the one-year period.
• However, if the plaintiff takes no active steps in prosecuting the suit and one
year lapses, then the injunction automatically lapses. In this case, there really is
no reason or lawful justification for the order to be extended considering that
the party or his advocate has breached the sacrosanct duty enshrined in Order
1A of the Civil Procedure Act that says:
1A. Objective of Act
(1) The overriding objective of this Act and the rules made hereunder
is to facilitate the just, expeditious, proportionate and affordable
resolution of the civil disputes governed by the Act.
(2) The Court shall, in the exercise of its powers under this Act or the
interpretation of any of its provisions, seek to give effect to the
overriding objective specified in subsection (1).
(3) A party to civil proceedings or an advocate for such a party is
under a duty to assist the Court to further the overriding objective
of the Act and, to that effect, to participate in the processes of the
Court and to comply with the directions and orders of the Court.
There have been different interpretations on this seemingly innocuous Rule.
Let us begin with the case of Henry Ndungu Kinuthia v Barclays Bank of Kenya
and another136 where the judge considered whether a party could be held in contempt
if action contrary to the original injunctive order that had lapsed after one year.
The judge was of the view that if an order for injunction had lapsed pending the
determination of the suit, then a party had to apply to set it aside.

136 [2014] eKLR

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156 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Facts
On 22 February 2011, the court issued injunctive orders pending the hearing and
determination of the suit. The bank was restrained from exercising its statutory power
of sale over the charged property.The suit was set for full hearing on 26 June 2014.This
was more than three years after the initial injunction order was granted. Prior to the
hearing of the suit, and after the lapse of one year after the injunction was granted,
the bank instructed auctioneers to advertise the charged property for sale by public
auction.
The plaintiff filed an application for contempt. The bank raised a preliminary
objection, inter alia, that the subject injunction had lapsed as per the mandatory
provisions of Order 40, rule 6 of the Civil Procedure Rules and therefore no act of
contempt of the court had been committed.
Justice Ogola dismissed the preliminary objection and found the bank liable for
contempt. The judge held as follows:
“13. This point of Preliminary Objection is important if read together with ground
one of opposition. The 1st defendant has opposed the application on the grounds
that it is fatally defective for having been filed without leave of the court.The
proper position is that contempt of court proceedings emanating under Order 40
of the Civil Procedure Rules do not need the leave of court to commence. They
commence by virtue of order 40, rule 3, that is, upon breach of the injunctive or
the interlocutory order issued. The court on its own motion can also commence
these proceedings.   The relevant fact here for the respondent is that since the
jurisdiction of this court is granted under Order 40, rule 3, it is important for
the applicant to cite that Rule to avoid an accusation that the applicant did not
seek the leave of the court. The Preliminary Objection on the grounds that this
application is brought under the wrong provision of the law, is hereby sustained,
and on that basis these proceedings cannot go any further.
14. However, under Order 40, rule 3 of the Civil Procedure Rules this court can
on its own motion punish contempt of court arising under that order. The 1st
defendant’s counsel did rightfully submit that the subject injunction has lapsed as
per the mandatory provisions of Order 40, rule 6 of the Civil Procedure Rules.
Rule 6 states as follows: -
“Where a suit in respect of which an interlocutory injunction has been granted
is not determined within a period of twelve months (12) from the date of the
grant, the injunction shall lapse unless for any sufficient reason the court orders
otherwise.”
15. The injunction the subject matter of this application was issued on 22 February
2011. Clearly 12 months have since passed. However, that does not mean that the
injunction lapsed.The order says that “unless for any sufficient reason the court
orders otherwise.”  
16. Whether there was sufficient reason or not, I do not know. What is on record,
however, is that the Judge in her wisdom issued the injunctive orders herein
“pending the hearing and determination of this suit”. That is clear enough. That
order is not against the law in Order 40, rule 6. Rather it complements Order
40, rule 6. If the Respondents were unhappy with that order, they ought to have
applied to have it set aside or reviewed or they could even have appealed against it.
To decide, unilaterally, that it was an illegal order was itself an act in contempt of
the said court order. This court on its own motion has the jurisdiction to punish
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Pleadings Without Tears- Tips in Civil Litigation 157

such contempt.
17. I am satisfied that the contemnors, aware of this court’s orders issued on 22
February 2011, injuncting any proceedings in the said suit properties, in flagrant
disobedience thereto, brought the authority and the dignity of this court in
disrepute, and for the reason I find them in contempt of this court.’’
A similar position was taken in the case of Wilson Tanui Barno and 2 others v Jeniffer
Kositany137 where the judge lamented about the backlog of cases and the impracticality
of concluding cases where injunctions had been granted within one year. Justice
Munyao Sila held as follows:
“I have my own problems with the practicality of Order 40, rule 7, and I think it needs to
be modified to take into account the reality that we have serious backlog of cases. It is not
realistic, that all cases will be determined within one year of the issuance of an injunction.
In my view, where the court has issued an order of injunction pending hearing and
determination of the suit, then that position should ensue, and if any party is aggrieved by
the continued existence of the order of injunction, or wishes to have it set aside, whether
on the basis of Order 40 rule 6 or rule 7, then such party is at liberty to apply to the court
for the order of injunction to be set aside or to be varied. It is not proper for any party
to take it upon himself that an order of injunction has lapsed pursuant to the provisions
of Order 40, rule 6 and proceed to disobey it. That can be recipe for anarchy. Litigation
should not be seen or taken to be a game of cat and mouse, where one party lies in wait
to pounce on the other, by some technicality of law.There needs to be decorum for at the
end of the day, what is required of the court is to make a final determination of the rights
of the parties in a matter.’’

However, a contrary view was held in the case of Kitangila Limited v Keziah Mumbi
Paul and 5 others138 where the 1st and 3rd defendants filed applications for contempt
against the plaintiff ’s directors for purportedly breaching the injunctive orders. The
court was of the view that any party who had an injunction granted in their favour
prior to the coming into force of the new Rules had an obligation to seek and obtain
extension of the order at any rate within 12 months of the coming into force of
the new Civil Procedure Rules otherwise the orders lapsed within the expiry of 12
months from the date the new Rules came into force.

Facts
The basis for the contempt application was predicated on a court order given on 15
January 2008 and issued on 21 January 2008. The order of 8 January 2008 granted by
Honourable Justice Kubo (as he then was) firstly granted the parties leave to file further
affidavits respecting the application by the plaintiff, secondly it directed that “the status
quo in respect of L.R. Nos. 10426/24, 10426/26 and 10426/7 be maintained until
the hearing and determination of this application i.e. the suit properties be preserved,”
and thirdly, that fresh hearing dates be taken at the registry on priority basis. It was
the 3rd and 6th defendants/applicants’ contention that the plaintiff acted in defiance
and in disobedience of the court’s order directing that the status quo in respect of the
suit properties be maintained and the properties be preserved until the application was
heard and determined by effecting the transfer of the suit property to the 7th defendant.

137 [2015] eKLR

138 [2014] eKLR
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158 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

The applicants submitted that at material times the plaintiff was aware of the existence
of the orders issued by court but nonetheless proceeded to deal with the property in
total disregard of the court order.
The plaintiff in response to the applicants’ application for contempt argued that
they had withdrawn the suit and that there was no active suit between the plaintiff and
the applicants. Consequently, in the absence of a suit there could be no contempt.The
plaintiffs have further averred that the order that they were alleged to have disobeyed
had lapsed by effluxion of time by virtue of Order 40, rule 6 of the Civil Procedure
Rules, 2010 which clearly stipulated that any order of injunction granted by the court
would remain valid only for a period of 12 months unless the court for any sufficient
reason ordered otherwise. The court addressed the law of contempt by the pertinent
part of the Ruling by Justice Mutungi addressed the implications of Order 40, rule 6
as follows:
“There is yet another aspect of this matter that calls for my comment. The plaintiffs have
submitted that the order relied upon by the applicants had lapsed upon the expiry of 12
months from the date of the coming into force of the Civil Procedure Rules, 2010. The
plaintiff ’s application for injunction herein was made under the previous Order XXXIX,
rules 1 and 2 of the previous Civil Procedure Rules (repealed) and that the equivalent
provisions are now to be found under Order 40 of the current Civil Procedure Rules,
2010.

Order 40, rule 6 provides: -

“Where a suit in respect of which an interlocutory injunction has been granted is not
determined within a period of twelve months from the grant, the injunction shall lapse
unless for any sufficient reason the court orders otherwise”.

The transition provision under Order 54, rule 2 of the Civil Procedure Rules provided
for the suits that were pending and provided thus: -

“2. In all proceedings pending whether preparatory or incidental to, or consequential

upon any proceedings in court at the time of the coming into force of these
rules, the provisions of these rules shall thereafter apply, but without prejudice to
the validity of anything previously done.
Provided that:
a. If, and in so far as it is impracticable in any such proceedings to apply the
provisions of the Rules, the practice and procedure heretofore obtaining
shall be followed,
b. In any case of difficulty or doubt the Chief Justice may issue practice notes
or directions as to the procedure to be adopted”.
Honourable Justice Mabeya, had occasion to consider the application of Order 40(6)
to suits that were pending before the effective date of the Civil Procedure Rules, 2010
in the case of Michael N. Muigai Kenyatta and another v Barclays Bank of Kenya Ltd and
others (HCCC No. 385 of 2010 Milimani) and he observed thus: -

“The said rule in my view is clear in its purport. That the new rules were intended
to apply to proceedings that were pending in court before the rules came into force.
It is only where there is difficulty in compliance that the Chief Justice is expected to
make practice notes or directions as to the procedure. It has not been shown that it is
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Pleadings Without Tears- Tips in Civil Litigation 159

difficult to apply Order 40, rule 6 of the Civil Procedure Rules to this suit”.

I agree with Mabeya, J, that Order 40(6) read together with Order 54 (2) of the Civil
Procedure Rules, 2010 was intended to apply to previously pending suits before the new
Civil Procedure Rules came into force. Order 40(6) of the new Civil Procedure Rules
was intended to redress situations where parties who obtained orders of injunctions sat on
them and never bothered to prosecute their suits often occasioning great prejudice against
the party to whom the injunction was directed.

It is my view therefore that any party who had an injunction granted in their favour
prior to the coming into force of the new Rules had an obligation to seek and obtain
extension of the order at any rate within 12 months of the coming into force of the new
Civil Procedure Rules otherwise the orders lapsed within the expiry of 12 months from
the date the new Rules came into force.”

In the instant suit the status quo order was granted on 15 January 2008 pending the hearing
inter partes of the plaintiffs’ application that was brought to court under a certificate of
urgency. As observed earlier in this ruling that application was never fixed for hearing
inter partes and up and until the time the instant application for contempt was brought had
not been heard. The applicants have taken the view that the status quo order was an order
of restraint and no doubt the same required to be in conformity with Order 40, rule 6
following the coming into force of the new Rules. It is unclear why none of the parties
sought to have the plaintiffs’ application dated 28 November 2007 heard and determined
even after the court directed the hearing to proceed on a priority basis.

Order 40, rule 6 by virtue of the transitional provisions of Order 54, rule 2 quite clearly
had a retroactive operation and it is my holding that there was no order in force at the
time the applicants brought this application and thus the plaintiffs cannot be liable for
contempt of court of an order that was not there at the time of the commission of the acts
it is alleged constitute disobedience of the order.

In the premises and for all the reasons canvassed in this ruling I find the applications by the
3rd and 6th defendants dated 31 July 2013 devoid of merit and I decline to grant the prayers
sought. I order that each party bears their own costs of the application.’’

1.36.3 Apply for Extension of Time if the Injunction Order is About to

Lapse
The practical and logical thing to do is to apply for an extension of time if the
injunction application is about to lapse and the suit has not been determined.
In the case of Mary Wambui Kamau and 2 others v Richard Kirimi Kinoti139 the court
granted a further extension of one year upon application by the plaintiff.

Facts
By a Notice of Motion dated 8 September 2015 and filed in court on 11 September
2015, the 1st plaintiffs applied for extension of the injunctive orders issued on 22
September 2014 by a further 12 months. The application was predicated on the
grounds that the court issued injunctive orders on 22 September 2015 restraining

139 [2015] eKLR

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160 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

the defendant from, inter alia, transferring or interfering with the ownership and
or possession of various motor vehicles and entering upon or interfering with the
running of the plaintiffs’ schools pending the hearing and determination of the suit
and from interfering with the plaintiff ’s peace.
Soon after the injunction was granted the defendant filed an appeal challenging
the injunctive orders before the Court of Appeal. The Court of Appeal heard the
application and a Ruling was pending delivery outside the 12 months’ term of the
injunctive orders.
The plaintiffs had complied with all the pretrial requirements under Order 11 of
the Civil Procedure Rules and submitted that if the orders were not extended, the
plaintiffs stood to be greatly prejudiced as the defendant could dispose of the motor
vehicles and interfere with the operations of the schools. Justice R.E. Aburili allowed
the application for extension of time and held as follows:
“The only issue for determination is whether the plaintiff has proffered to this court
sufficient reasons why the injunctive orders issued on 22 September 2014 should be
extended as contemplated in Order 40, rule 6 of the Civil Procedure Rule which provides:

“Where a suit in respect of which an interlocutory injunction has been granted is

not determined within a period of twelve months from the date of the grant, the
injunction shall lapse unless for any sufficient reason the court orders otherwise.

This court observes that albeit the said Rule is couched in mandatory terms, the words
“unless for any sufficient reason the court orders otherwise”confer the court with discretion
to order for extension of injunction orders if there are sufficient reasons advanced by a
party applying for such extension or variation.

The plaintiff has argued and the court record bears her witness that after the
said injunctive orders were issued by Hon Ougo, J, the applicant had to apply to court
for amendment of her plaint and subsequent to that leave to amend, the defendant too
amended his pleadings and introduced a counter claim on 9 July 2015.

The plaintiff has also demonstrated that she has fully complied with the pre-trial
requirements pursuant to Order 11 of the Civil Procedure Rules. No doubt, the plaintiff,
and indeed, no party to the suit could have been expected to comply with pre-trial
requirements fully before pleadings close and in this case, the pleadings must have closed
sometime in August 2015 upon which pursuant to Order 11, rule 3(1) of the Civil
Procedure Rules, a case conference would then be convened a month after the pleadings
close.

Although the defendant opposed this application for extension of the injunctive orders,
he did not rebut the above position which is apparent from the court record. The
mere objection to extension on the ground that there had been delay to frustrate the
defendant or that the plaintiff waited until the orders were about to lapse before seeking
for their extensionis not sufficient. There was no material advanced before this court
to suggest thatthe conduct of the plaintiff was deplorable and that it therefore disentitled
her from seeking the orders herein. Order 50, rule 6 of the Civil Procedure Rules on
enlargement of time allows such application for enlargement even after the time prescribed
has expired. In this case, the application was timeously brought before such expiry of the
12 months.
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Pleadings Without Tears- Tips in Civil Litigation 161

Injunctive relief is indeed an equitable relief/remedy based on equitable principles and

the conduct of the parties are usually considered in extending the orders. It has not
been shown in this case that the plaintiff, upon obtaining the injunctive relief, went to
slumber or that she had not taken any proactive steps to set down the suit for hearing.

The plaintiff moved the court as appropriate, for leave to amend her pleadings and that action
prompted the defendant too to amend his pleadings and introduce a counterclaim which
is a suit within a suit. And as I have stated above, pleadings only closed in August 2015.
It cannot, therefore, in the view of this court, be true that there was any inordinate delay
and or inexcusable conduct by the plaintiff.

The plaintiff has also submitted that if the orders sought are not granted maintaining status
quo, then the substratum of this suit, which the injunctive orders were preserving would be
lost.

The Court of Appeal in the case of George Orango Orago v George Liewa Jagalo and 3 others
[2010] eKLR stated that the purpose of an injunction is to conserve or preserve the subject
matter/property pending determination of a suit concerning the property. The defendant
filed a counterclaim and   it was equally incumbent upon him to expeditiously move
the court, where he felt there was delay, to have the suit determined as espoused under
Sections 1A and 1B of the Civil Procedure Rules, that the duty to ensure that suits
are expedited is imposed on all the actors in a suit.

In addition, no pre-trial questionnaire and or issues had been filed by the parties as
required by Order 11 of the Civil Procedure Rules.

The court further notes that the issues in contest are highly contentious and the
defendant even challenged the decision by Ougo, J granting the impugned injunction and
sought a remedy before the Court of Appeal.

As was held in Ougo and another v Otieno [1987]eKLR 364, where there is a serious
conflict of facts, status quo should be maintained until the dispute has been decided
at the trial.

“This is not to say that the suit herein must remain archived in perpetuity for public
policy demands that justice must be administered without undue delay. See article 159(2)
(b) of the Constitution and that the business of the courts should be conducted with
expedition (see Fitz Patrick v Batger and Company Ltd [1967] 2 All ER 657, since it has
not been demonstrated that the plaintiff has no interest in prosecuting the suit herein;
and as no application was ever made by the defendant to have the injunction granted
herein discharged under Order 40, rule 7 of the Civil Procedure Rules for inaction
or misconduct, I find sufficient reasons have been advanced why the injunctive orders
granted by Ougo, J, on 22 September 2014 should be extended, thereby protecting or
preserving the substratum of the suit herein pending the determination of this suit.’’

The danger of not applying to extend an injunctive order was addressed by the Court
of Appeal in the case of Erick Kimingichi Wapang’ana and another v Equity Bank Limited
and another.140

140 [2015] eKLR

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162 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Facts
Contemporaneous with the filing of the suit, the appellants also filed an application
and sought the same orders as those sought on the plaint, albeit on a temporary basis.
On 12 October 2011 the judge. heard that application ex-parte and granted the orders
sought. By their notice of motion dated July 2014, and brought under Order 40, rules
6 and 7 of the Civil Procedure Rules and sections 1A, 1B, 3A and 63(e) of the Civil
Procedure Act, the respondents sought a declaration that the said injunction order
issued on 12 October 2011 had lapsed. The application was allowed leading the
appellant to filing the appeal which was dismissed by the Court of Appeal sitting in
Kisumu. The Court held:
“4 In both their grounds of appeal and submissions by their learned Counsel, Mr.
Lunani, the appellants faulted the learned Judge for declaring that the said order
of injunction had lapsed. Since the order read that “pending the hearing and
determination of the suit, the defendant, (sic) their servants, agents, (sic) be
restrained by way of injunction from offering for sale or doing any act to sale
(sic) the plaintiff ’s immovable assets namely E. Bukusu/S. Kanduyi/13584, E.
Bukusu/S. Nalondo/618 and E. Bukusu/S. Nalondo/2741,” they argued that no
extension was required under Order 40, rules 6 and 7 of the Civil Procedure
Rules. They therefore, urged us to allow this appeal.
5. In response, Mr. Makokha, learned Counsel for the respondents, submitted that
this application is incompetent for failure to obtain leave to appeal. On its merits,
counsel dismissed this appeal as unmeritorious. He argued that the appellants,
having not sought or obtained an extension of the life of the order of injunction,
by dint of Order 40, rule 6, the same lapsed after a period of 12 months. In the
circumstances, counsel concluded, the Judge’s order of 16 December 2014 was
inevitable.
6. Having considered these rival submissions, we agree with counsel for the
respondents that this appeal has absolutely no merit and is for dismissal on two
grounds. One, Order 43 of the Civil Procedure Rules lists other provisions of the
Civil Procedure Rules in respect of which appeals can be preferred from orders
made thereunder. Order 40, rules 6 and 7, which we are concerned with in this
appeal is not included in Order 43. In the absence of leave having been obtained,
it follows that this appeal is incompetent.
7. Even if the appeal was competent, we agree with counsel for the appellants that
the same is unmeritorious.Temporary injunctions are issued under Order 40, rules
1 to 5. Rule 6 of that Order provides that:
“Where a suit in respect of which an interlocutory injunction has been granted is
not determined within a period of twelve months from the date of the grant, the
injunction shall lapse unless for any sufficient reason the court orders otherwise.”
8. Rule 6 of Order 40 was made in clear cognizance of the preceding Rules in
that order. It therefore follows that notwithstanding the wording of any order of
interlocutory injunction, the same lapses if the suit in which it was made is not
determined within twelve months “unless,” as the Rule further provides, “for any
sufficient reason the court orders otherwise.”
9. In this case there was no subsequent order extending the injunction. Having been
issued on 11 October 2011, the injunction order therefore lapsed on 12 October
2012. We agree with counsel for the appellants that Mukunya, J’s order of 16
December 2014 declaring that the injunction of 11 October 2011 had lapsed was
inevitable.’’
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Pleadings Without Tears- Tips in Civil Litigation 163

1.36.4 Tips
1. Whenever an injunction is obtained, do abide by the overriding objective and
advise the client that indolence may lead to the injunctive orders expiring after
one year.The courts may not be inclined to extend the orders if the party enjoying
the orders has failed to demonstrate that active steps have been taken to prosecute
the suit.
2. If the injunctive order is about to expire and steps have been taken to comply with
directions to setting the case down for hearing, do apply before the expiry of the
12 months for extension of time.
3. Where money is owed to the defendant who has been restrained from taking
any action to recover the debt, do advise your client to negotiate a settlement.
In practice,defendants would not be averse to settling a matter amicably and may
even accede to giving reasonable terms for settlement of the debt when faced with
prolonged litigation. Most creditors appreciate the time value of money concept.
One would rather settle now rather than wait for years before recovery of the debt
is achieved.
4. Finally, remember that an injunction is a temporary respite. There is no guarantee
that your client will succeed at the trial hence the need to consider a reasonable
settlement.
 Chapter 2

Trial Advocacy in the Civil Cases – Vanquishing

the Shackles of Legal Complacency

2.1 Preparation of Witness Statements, Documents and Submissions

Under The Civil Procedure Rules, 2010

2.1.1 Introduction
The Civil Procedure Rules, 2010 came into force on 17 December 2010. I first
presented this paper at a Continuous Legal Education training in 2012. This chapter
aims to provide some guidance on the topic under discussion. I have updated the
chapter to include samples of the List of Documents, Witness Statements and Written
Submissions. The samples will provide a useful guide on how to make your pleadings
concise and presentable.
For the sake of brevity, the Civil Procedure Rules, 2010, shall simply be referred
to as ‘the Rules’.
The spirit of the Rules is to bring about case management, efficient use of court
resources and eradicating the perennial delays that have caused unmitigated suffering
to litigants. Since the Rules came into force advocates have adopted different styles in
drafting the List of Documents, Witness Statements and Submissions.
This chapter paper will try to address some of the best practices adopted in other
jurisdictions that may assist in the administration of justice. In essence this is but the
tip of the iceberg of judicial reform towards case management.
I shall now begin by listing some of the golden parameters that define the spirit
and intent of the Rules as they impact the wheels of justice.

2.1.2 Court in the Driving Seat

1. The traditional approach was to permit the claimant to drive the case on the
assumption that expedition was in his interest; however, experience has shown
this to be an unreliable assumption: Rastin v British Steel.141

2.1.3 Benefits of Case Management

2. The early identification of issues through case management is likely to encourage
early settlement of disputes and reduce the duration of proceedings. Post-trial
amendments are likely now to be viewed with greater strictness than in the past:
Nikken Kosakusho Works v Pioneer Trading Co.142

141 [1994] 1 WLR 732 at 739; [1994] 2 All ER 641 at 646

142 [2005] EWCA Civ 906.
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166 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

3. This paragraph does not supplant the inherent jurisdiction to strike out nor does
it create an additional option to striking out in which there is a preliminary trial
adopting the standard of proof applicable to a trial: Royal Brompton Hospital v
Hammond (No. 5).143

2.1.4 Court Retains Power to Strike Out Pleadings

4. There is, however, a principle implied in the overriding objective that it is not
just to subject a defendant to a lengthy and expensive trial where there is no
realistic prospect of success: Three Rivers District Council v Bank of England (No.
3).144

2.1.5 Issues for Determination Prior to Trial

5. The court should be slow to deal with single issues where there will need to be
a full trial on liability involving evidence in any event and/or where summary
disposal of the single issue may well delay, because of appeals, the ultimate trial:
Three Rivers District Council v Bank of England.145

2.1.6 Court can Penalize Party with Costs for Obstructing Justice
6. Encouragement by costs. There are many instances where valuable court time
is wasted on account of numerous mentions being fixed to allow a defaulting
advocate file his documents. It is not surprising to find an advocate take more
than 2 months to file his submissions outside the original time limit. Costs orders
would usually be a source of encouragement: see Dunnett v Railtrack.146

2.1.7 Determination of Old cases

7. Active case management should, in theory, eliminate those cases which drag
on for many years due to inaction of the claimant and eventually lead to an
application to dismiss for want of prosecution: Biguzzi v Rank Leisure.147

2.1.8 Striking out Pleadings on Technicalities vis-a-vis Oxygen Principle

8. The initial approach of the courts now must not be to automatically strike out
a pleading but to first examine whether the striking out will be in conformity
with the overriding objectives set out in the legislation. If a way or ways alternative
to a striking out are available, the courts must consider those alternatives and see
if they are more consonant with the overriding objective than a striking out:
Deepak Kamani v Kenya Anti-Corruption Commission (CA)148 which applied the
principles in the Biguzzi case.

143 [2001] EWCA Civ 550 at [21], [23].

144 [2001] 2 All ER 513
145 [2001] 2 All ER 513
146 [2002]1 WLR 2434
147 [1999]1 WLR 1926 at 1933.
148 [2010] eKLR
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 167

2.1.9 Application of Overriding Principles must have Backing of Facts

and Law
9. The application of the overriding principle has to have the backing of a factual
or legal foundation and what is important is to do justice on the basis of the facts
of a particular matter: African Safari Club Ltd v Safe Rentals Ltd (CA).149

2.1.10 Parties must not Abuse Court Process

10. Under section 1A (3) the applicant has a duty to obey all court processes and
orders. In our opinion, coming to us having abused the process in the superior
court violates the overriding objective (which in another case has been baptized
the (double “O” principle”) and in this case, we have chosen to call it (“the
O2 or the oxygen principle”) because it is intended to re-energise the processes
of the courts and to encourage good management of cases and appeals: Hunker
Trading Company Ltd v Elf Oil Kenya Ltd (CA)150.

2.2 The Overriding Principles

The overriding principles were enshrined in both the Civil Procedure Act and the
Appellate Jurisdiction Act in 2009 and came to be famously referred to as the oxygen
principles.
11. Sections 1A and 1B of the Civil Procedure Act reads:
1A(1) The overriding objective of this Act and Rules made hereunder is to facilitate
the just, expeditious, proportionate and affordable resolution of civil disputes
governed by the Act.
(2) The Court shall in the exercise of its powers under this Act or the interpretation
of any of its provisions, seek to give effect to the overriding objective in subsection
(1).
(3) A party to civil proceedings or an advocate for such a party is under a duty to assist
the court to further the overriding objective and, to that effect, to participate in
the processes of the court and to comply with directions and orders of the court.
1B(1) For the purpose of furthering the overriding objective specified in section 1A, the
Court shall handle all matters presented before it for the purpose of attaining the
following aims:
(a) the just determination of the proceedings;
(b) the efficient disposal of the business of the Court;
(c) the efficient use of the available judicial and administrative resources;
(d) the timely disposal of the proceedings, and all other proceedings in the Court,
at a cost affordable by the respective parties; and
(e) the use of suitable technology.

149 [2010] eKLR

150 [2010] eKLR
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168 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

2.2.1 The Court’s Duty to Further the Overriding Objective

The court must further the overriding objective by actively managing cases. Active
case management includes:
(a) encouraging the parties to co-operate with each other in the conduct of the
proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly
disposing summarily of the others;
(d) encouraging the parties to use an alternative dispute resolution procedure if the
court considers that appropriate and facilitating the use of such procedure;
(e) helping the parties to settle the whole or part of the case;
(f) fixing timetables or otherwise controlling the progress of the case;
(g) considering whether the likely benefits of taking a particular step justify the cost
of taking it;
(h) making use of technology; and
(i) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

2.2.2 Duty of Advocate to Further the Overriding Objective

The advocate and his client must at all times further the overriding objective by:
(a) Helping the court to further and achieve the overriding objective.This means co-
operating and assisting the court to get to the crux of the dispute. Any party who
obstructs the overriding objective will be penalised.
(b) Dealing with the dispute in ways which are proportionate to the amount of
money involved, the importance of the case, the complexity of the issues and the
financial position of the parties.
(c) Considering mediation as an alternative to litigation.
(d) Clients must assist advocates in meeting the timelines imposed to ensure that
documents and witnesses are available.

2.3 Documents to Accompany Suit

Order 3, rule 2 requires the following documents to accompany the plaint or
counterclaim [see Order 7, rule 5 that replicates the same provision for the filing of
Defences and Counterclaims]. The important documents are:
2. Documents to Accompany Suit [Order 3, rule 2.]
All suits filed under rule 1(1) including suits against the government, except small
claims, shall be accompanied by—
(a) the affidavit referred to under Order 4, rule1(2);
(b) a list of witnesses to be called at the trial;
(c) written statements signed by the witnesses excluding expert witnesses; and
(d) copies of documents to be relied on at the trial including a demand letter
before action:
Provided that statement under subrule (c) may with leave of court be furnished at
least fifteen days prior to the trial conference under Order 11
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 169

2.3.1 Order of Production of Documents

As stated in 2.3.1 above,’ The production of the bundle of documents should essentially
flow with the sequence of averments in the pleadings. Remember that the material
facts raised in the pleading should essentially be supported by documentary evidence
where applicable.
A good starting point to appreciate how documents ought to be produced is to
consider the provisions of Order 2 of the Rules as stated below:
“1.(1) Every pleading in civil proceedings including proceedings against the Government
shall contain information as to the circumstances in which it is alleged that the
liability has arisen and, in the case of the Government, the departments and officers
concerned.
(2) In such proceedings if the defendant considers that the pleading does not contain
sufficient information as aforesaid, the defendant may, at any time before the time
limited by the summons for appearance has expired, by notice in writing to the
plaintiff, request further information as specified in the notice.
(3) Where such a notice has been given, the time for appearance shall expire four
days after the defendant has notified the plaintiff in writing that the defendant
is satisfied or four days after the court has, on the application of the plaintiff by
chamber summons served on the defendant not less than seven days before the
return day, decided that no further information is reasonably required.
[Order 2, rule 2.] Formal Requirements
2.(1) Every pleading shall be divided into paragraphs numbered consecutively, each
allegation being so far as appropriate contained in a separate paragraph.
(2) Dates, sums and other numbers shall be expressed in figures and not words.
[Order 2, rule 3.] Facts not Evidence, to be Pleaded
3.(1) Subject to the provisions of this rule and rules 6, 7 and 8, every pleading shall
contain, and contain only, a statement in a summary form of the material facts on
which the party pleading relies for his claim or defence, but not the evidence by
which those facts are to be proved, and the statement shall be as brief as the nature
of the case admits.
(2) Without prejudice to subrule (1), the effect of any document or the purport of
any conversation referred to in the pleading shall, if material, be briefly stated, and
the precise words of the document or conversation shall not be stated, except in
so far as those words are themselves material.
The key words to appreciate are ‘information’ and ‘material facts’. The evidence
contained in the bundle of documents should as nearly as possible flow with the
chronological averments in the pleadings as this will present a systematic and coherent
manner during the preparation of the witness statement and presentation of the
evidence.

2.3.2 Preparation of the Bundle of Documents

As stated in 2.3.1 above, the documents should flow with the averments. The index
should have at least three columns. The table below will serve as an illustration.
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170 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Republic of Kenya
In the High Court of Kenya at Nairobi
Milimani Law Courts
Civil Suit No. 2424 of 2016
Silipi Deni Ltd……………Plaintiff
v
Pesa Bank of Kenya Limited ……………Defendant
Defendant’s List of Documents
No. Copies of Documents Pages
Facility Letters 1-5
Letter of Offer dated 20 September 2005
Letter of Variation dated 17 October 2005 6-7
Term Loan for EUR 1,839,000 8-11
Letter of Variation of Euro Loan 1,839,000 12-14
Term Loan for KShs 15,000,000 15-21
Letter of Variation 22-24
Standard Terms and Conditions 25-58
Correspondence 59-60
Defendant’s Letter dated 6 February 2006
informing Plaintiff of new interest rate.
Defendant’s Letter dated 20 February 2009 61
requesting Plaintiff to regularize account.
Defendant’s Formal Demand dated 24 March 2009. 62
Plaintiff ’s letter dated 7 April 2007 demanding 63-68
refund of interest.
Plaintiff ’s letter dated 29 September 2009 69-70
threatening to file suit.
Defendant’s letter dated 20th May 2013 denying 72
liability.
Statement of Account
• Current Account No. 142503093 for the pe- 73-215
riod 15 January 2010 to 31 December 2015. 216-301
• Euro Account No. 145040263
DATED at Nairobi this 9th day of February 2016
Top Advocates
Advocates For The Defendant
Drawn & Filed By: - To Be Served Upon: -
Top Advocates Kali Advocates
Maridadi Plaza Jaribu Towers
P.O.Box 2323 P.O.Box 1212
Nairobi Nairobi
Email:Top1@Gmail.Com Email: Kalisana@Gmail.Com
Tel: 0702-000 000 Tel: 0711-111 111
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 171

The simplicity in the tabulated layout has the following advantages:

1. In the event that there are various classes of documents, the subheadings provide a
useful reference point. The documents under each sub-heading should be set out
chronologically.
2. Various letters can be under a sub-heading called ‘Correspondence’. The letters
can also be shown in the index by a general description; it is not necessary to list
every letter separately.151
3. The third column nicely sets out the paginations. A common mistake many
advocates make is to list documents without providing a column for the pagination.
4. The List of Documents complements the witness statement as the statement shall
refer to the specific documents in the List.
5. Copies of all documents must be legible. Care must be taken to ensure that
during the photocopying process, edges are not cut off or rendered illegible by
the binding. It is important that every bundle should be individually checked to
ensure that no document was omitted during the photocopying process.
6. An important aspect to consider is that of numbering. It is preferable to number
the documents filed in the magistrate’s court or the superior court at the bottom
of each page. Bear in mind that if you later decide to lodge an appeal before the
Court of Appeal the documents are numbered at the top right hand corner.
7. A defendant should not replicate documents already produced by the plaintiff
when filing the defendant’s bundle. There is no point in including a common
document that has been agreed. The exception would be if the document filed in
court is incomplete or illegible. This is the essence of having an agreed bundle.

2.4 The Case of Privileged Documents and Without Prejudice

Correspondence
When preparing the bundle of documents care should be taken not to include
privileged, confidential or without prejudice documents whose presence in the bundle
may be objected to by the opposing party.

2.4.1 Should an Employee be Permitted to Rely on Illegally Obtained

or Privileged Evidence in Support of his Suit for Termination of
Employment?
It so happens that employees have access to confidential and privileged information
which they later use to buttress their case before the Industrial Court. This issue was
considered in the case of Leland I. Salano v Intercontinental Hotel.152

Facts
In the Supplementary List of Documents, the claimant attached lengthy electronic
mails exchanged among Senior Managers of the Hotel, relating to some commercial
transactions conducted by the respondent with 3rd parties; standard operating
procedure for security related issues with computers and printers; and e-mails of the
Director of Human Resources discussing staffing of the IT section. The respondent

151 See the Practice Direction 4.1 relating to Civil Appeals to the Court of Appeal dated 12th February 2009 by
Chief Justice Andrew Li of Hong Kong.
152 [2013] eKLR
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172 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

opposed to the use of these documents by the claimant to advance his cause. The
documents were said to be confidential and were obtained by the claimant illegally.
The respondent asked the Court to expunge the documents from the record. It was
submitted by the respondent that under article 31 of the Constitution, every person
had the right to privacy, which include the right not to have their possessions seized,
information relating to their family or private affairs unnecessarily required or revealed,
or privacy of their communication infringed. The confidential, and illegally obtained
documents, violated article 50(4) of the Constitution of Kenya, and their retention in
the proceedings would deny the respondent the right to a fair trial.
The court dismissed the application and held, inter alia, as follows:
“12. The employment relationship is grounded on mutual trust, confidence, good faith
and fidelity. This demands that employees do not unfairly exploit information
acquired or skills imparted, by their former employers to the detriment of their
former employer’s business. Ex-employees may join their former employers’
competitors. The obligation of the employee to keep employer’s information
confidential is not automatically ended with the termination of employment.
13. In the absence of an express term barring the employer from use of confidential
material acquired in the course of employment after termination, the obligations
of mutual trust, confidence, good faith, and fidelity imposes on the employee an
implied contractual obligation to keep confidential the information obtained from
the employer, during and after employment.
14. But, there is a marked difference between the obligation of confidentiality
which the law imports into employment relationship during employment, and
that which must be observed after termination. During employment, case law
has established that the obligation of confidentiality extends to all information
imparted by the employer, which the employee knows or ought reasonably to
know to be confidential in nature. Once the employment relationship is at an end,
the employee’s obligation to retain the confidentialities of the former employer is
less onerous.
19. The point is that once the employee has left employment, there is less onerous
obligation to demand that the employee honours confidential information that
may have been acquired during employment.
20. In the case of Salano and the Intercontinental Hotel, there is no written contract
during employment, which restricted the employee from use of confidential
material after termination. There is no confidentiality policy exhibited before
the Court. There is no written contract of employment in this dispute, imposing
any obligations on the employee, not to use any documents acquired during
employment, after the termination of his contract of employment. The imposed
obligation, as seen above, is less onerous after termination. It has not been shown by
the respondent, that the documents the respondent seeks to have expunged from
the record were confidential, at the time Salano was in employment, or that the
claimant had a duty to treat them as confidential. None of the documents contain
any sign, or paragraphs, identifying them as confidential. There is no evidence
that any Manager, including the claimant, had the duty of keeping any document
confidential. There is no evidence of restricted access, and no passwords imposing
protections. In sum there is no prove [sic] that the documents were confidential, or
were obtained illegally. The Court has not been told what trade secrets are at risk,
with the disclosure of the documents before the Court. There is no evidence that
Hotel Intercontinental has a confidentiality policy in place, which would bar the
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 173

admissibility of the documents forwarded for the consumption of the Court by

the claimant.’’
The court also held in the above case that by virtue of section 20 of the Industrial
Court Act, it was not bound by technicalities and rules of evidence except in criminal
proceedings.
This Ruling is per incuriam in that it allowed illegally obtained evidence to support
the claimant’s case. The court does not appear to have taken into account the provisions
of the Kenya Information and Communication Act, which at section 83U states:
Unauthorized access to computer data
83U.(1) Subject to subsections (2), any person who causes a computer system to perform
a function, knowing that the access he has secured is unauthorized, shall commit
an offence and shall on conviction be liable to a fine not exceeding two hundred
thousand shillings or imprisonment for a term not exceeding two years or both.
(2) A person shall not be liable under subsection (1) where he—
(a) is a person with a right to control the operation or use of the computer
system and exercises such right in good faith;
(b) has the express or implied consent of the person empowered to authorize
him to have such an access;
(c) has reasonable grounds to believe that he had such consent as specified
under paragraph (b) above; or
(d) is acting in reliance of any statutory power for the purpose of obtaining
information, or taking possession of any document or other property.’’
If consent was not given by the employer, it is a criminal offence for an employee to
access a computer and print privileged information that was not addressed to him.
In addition, article 31(d) of the Constitution states that every person has a right
to privacy which includes the right not to have the privacy of their communication
infringed.
It is important to remember the provisions of Sections 5, 23 and 139 of the
Evidence Act that state:
‘Section 5: Subject to the provisions of this Act and of any other law no evidence shall
be given in any suit or proceedings except evidence of the existence or non-existence of
a fact in issue and of any other fact declared by any provision of this Act to be relevant.

Section 23: (1) In civil cases no admission may be proved if it is made either upon an
express condition that evidence of it is not to be given or in circumstances from which
the court can infer that the parties agreed together that evidence of it should not be given.

(2) Nothing in subsection (1) shall be taken to exempt any advocate from giving evidence
of any matter of which he may be compelled to give evidence under section 134.

Section 139: No one shall be compelled to produce documents in his possession, which
any other person would be entitled to refuse to produce if they were in his possession,
unless such other person consents to their production.’

The issue of privilege of documents has been addressed in two local cases where the
courts disallowed the production of documents that were held to be privileged.
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174 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In the case of Baseline Architects Limited v and others v National Hospital Insurance
Fund Board Management,153 Justice Warsame considered the issue of privileged evidence
which had been illegally obtained. An issue of disclosure of privileged communications
between government officials was at stake in light of the public interest and public policy
issues. The court determined the question of whether evidence of communication in
the nature of a legal opinion between the Attorney General and the respondent, a
public body could be properly adduced in evidence by the applicant when there was
no disclosure as to how it had been obtained. The court held as follows:
‘It is also clear in my mind that justice is administered in civil disputes on the principles
that you cannot use an advantage obtained improperly or illegally in a manner prejudicial
and/or detrimental to the interest of the opposite party. That principle is based and/or
founded on fair play and there can never be justice without a fair play. And in my opinion
there cannot be fair play if we allow parties to steal a march by relying on documents
improperly obtained from the other side…It would be both wrong and dangerous if
parties were allowed to intercept legal opinion between the office of the Attorney General
and government department and to rely on the same on the success of their case, because
they think the documents are favourable to the success of their case.

As stated it is a general principle of law well founded on public policy and recognized
by the Constitution and Chapter 80, Laws of Kenya that documentary evidence may be
withheld or an answer to any question may be refused on the ground that the disclosure
of the document or the answering of the question will be injurious to the public…
It is manifest, I think that there must be a limit to the duty and power of allowing the
production of evidence which is adverse to the party who authored or was a party to such
document.’

Justice Mugo in the case of Glencore Energy U.K Limited v Kenya Pipeline Co. Limited154
held as follows:
“In my mind, therefore, the said report is one which legal professional privilege, also
known as legal privilege (and which includes reports from experts) does attach, within
the legal principle that:

“Communications between a solicitor or a client and a third party where a document is

created with the dominant purpose of using the document or its contents in order to
obtain legal advice or to help in the conduct of litigation which was at the time reasonably in
prospect are privileged.” (underlining by the court).

[See: Stuart Sime’s: A Practical Approach to Civil Procedure, 4th Edition at paragraph 26.6.2.2]

153 [2008] eKLR. See also the various English decisions referred to in the ruling. A good precedent referred to in
the ruling on the issue of privilege is that of Derby & Co. Limited & others vs Weldon and others, Court of Appeal
Civil Division 1990 3 All ER 672 where it was held;
“Where privileged documents belonging to one party to an action were inadvertently disclosed to and
inspected by, the other side in circumstances such that the inspecting party must have realized that a mistake had
occurred but sought to take advantage of the inadvertent disclosure, the court had power under its equitable
jurisdiction to intervene and order the inspecting party to return all copies of the privileged documents and to
grant an injunction restraining him from using information contained in or derived from the documents, even
if it was not immediately obvious that the documents were privileged. Since the conduct of the defendants’
solicitors made it plain that they were seeking to take advantage of an obvious mistake, the court would order
them to return all copies of the privileged documents which they had obtained as a result of the mistake,
including the three documents in issue”.
154 [2011] eKLR
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 175

As regards the plaintiffs’ assertion that privilege was eroded by the appearance of the
report at the stated websites, the court finds that the same cannot hold since, as was held
in Waugh v British Railways Board (supra), a document, once privileged is always privileged,
unless, of course, the person claiming that privilege waives the same.There is no evidence
of the privilege having been waived in the present case.

Under the Rules, and in this case, I believe this court is properly guided by Order 24, rules
11-13 of the Supreme Court Practice, 1995, no order for the production of any document
for inspection or to the court or for the supply of a copy of any document shall be made
unless the court is of the opinion that the order is necessary either for disposing fairly of
the cause or matter, or for saving costs.’’

In the case of Okiya Omtatah Okoiti and others v Attorney General and others,155 Justice
Lenaola considered the admissibility of evidence that consisted of primary and
secondary evidence and the power of the court to exclude or admit wrongfully
obtained documents and information that had been wrongfully acquired. The judge
after a reasoned judgment proceeded to expunge the documents and determined
the petition in their absence. This is a very comprehensive decision on relying on
privileged documents supplied by an undisclosed party and serves as a lesson to be
wary when attempting to rely on such documents.

Facts
The Ministry of Transport entered into a Memorandum of Understanding on 12
August 2009 with China Roads and Bridges Corporation (4th respondent) in which
the latter was to undertake a feasibility study on the construction of an electric railway
system spanning Mombasa-Nairobi. That feasibility study was to be undertaken by
the 4th respondent at its own cost and if it turned out to be feasible, then they would
also help with financing the project. Having thus presented the positive feasibility
report, the Cabinet decided that the project would be undertaken under government
to government terms with the Chinese government offering part of the loan
through Exim Bank, a Chinese government owned bank. Accordingly, the 2nd and 4th
respondents negotiated and signed two commercial contracts; one for the Standard
Gauge Railway (SGR) line and the second one for the supply and installation of
facilities, locomotives and rolling stock with the total contract sum for civil works
and purchase and installation of locomotives and rolling stock amounting to the sum
of KShs. 327 billion. The petitioners’ case was that the government erred in awarding
the contract to the same parties who did the feasibility study without compliance to
the established procurement system, the SGR project would lead to environmental
degradation and also that the 4th respondent were not fit to be awarded the tender
since they had already been blacklisted by the World Bank. The 1st and 3rd respondents
objected to the production of confidential documents that had been produced by
petitioners without disclosing how they had obtained the documents.They submitted
that the documents should be expunged. On the issue of confidential documents, the
court agreed with the 1st and 3rd respondents and held as follows:
78 I will start off by considering firstly the submission made by Prof. Mumma that
the public servants who disclosed the contested information to the petitioners are

155 [2014] EKLR

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176 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

in breach of their public duty and their duty to their employer for clandestinely
and secretly removing official documents and handing them to third parties, being
the petitioners.The petitioners have on the other hand described the persons who
gave them the documents and the information as public spirited public servants
and also as ‘whistle blowers’. With respect to them, however, and to my mind, I
do not think that those persons fit the legal definition, meaning and conduct of
whistle blowers. I say so because article 33 of the United Nations Convention
Against Corruption states as follows in regard to whistle blowers;
“Each State Party shall consider incorporating into its domestic legal system
appropriate measures to provide protection against any unjustified treatment
for any person who reports in good faith and on reasonable grounds to the
competent authorities any facts concerning offences established in accordance
with this Convention.”
79. It is thus clear from the above provisions that whistle blowers are supposed to
make reports, in good faith, to competent authorities empowered by law to act on
their reports, any corrupt conduct on the part of anyone. The petitioners herein
are not the authorities so contemplated under article 33 above and as such the
persons who gave them the documents cannot claim to be whistle blowers.
80. Secondly, it was submitted that the public servants who handed over the documents
to the petitioners are in breach of the employees’ duty to the employer as provided
for under the Public Officers Ethics Act, 2003. Section 11(2)(c) of that Act states
that:
“a public officer shall not for personal benefit of himself or another use or
allow the use of information that is acquired in connection with the public
officer’s duties …”
Section 24 provides further that:
“a public officer contravenes the Code of Conduct and Ethics if he causes
anything to be done through another person that would, if the public officer
did it, be a contravention of the Code of Conduct and Ethics”.
81 On the basis of the arguments made by the respondents and presented to the
Court on the issue before me now, there does seem to be a real possibility
that those public servants responsible for handing over the documents to the
petitioners contravened the Code of Conduct and Ethics and violated section
11(2) (c) of the Public Officers Ethics Act as stated above. I say so because many of
the documents produced in Court, and as I have studied them, are in reference to
commercial contracts, professional privilege and may even compromise diplomatic
privilege because of the diplomatic communication and correspondence between
Government officials. In that regard, in Robert Tchenguiz & others v Vivian Imerman
(supra), the Court observed as follows:
“How can the law – how can the judges – countenance recourse to self-help in
circumstances where the court itself declines to act, and when to do so would be
not merely unprincipled but an unjustifiable invasion of someone’s rights? In the
instant appeal Mrs. Imerman was not entitled to the confidential information at
the stage she obtained it. The Family Proceedings Rules prevented it. The law
forbids it. She should not be allowed to obtain an advantage over her husband
who, for all the court knows, would have been honest when the time came for
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 177

him to be honest, namely at the time the Rules required him to disclose his
assets through Form E.”
82. I am in agreement and self-help is generally not accepted with regard to documents
held in confidence. The question in my mind right now therefore is whether the
petitioners were entitled to the documents at the stage they obtained the said
documents. I heard the petitioners to say that the persons who gave them the
documents acted in good faith. That is why Apollo Mboya stated in his affidavit at
paragraph 62 that; “the documents relied upon were submitted to the Law Society
of Kenya by conscientious public spirited citizens in lawful possession of the said
documents”. That clear averment notwithstanding, in my view, the defence of
good faith would not stand in the current case because the Constitution at article
35 has provided that every citizen, including the petitioners, have a right to obtain
information held by the State and article 22 of the Constitution places on the
petitioners an obligation to request for that information and the State also has an
obligation to disclose to them the information sought unless there exist sufficient
reasons for non-disclosure - See Nairobi Law Monthly and another v Kengen eKLR
[2013].
83 Use of ‘self-help’ or clandestine means in the face of clear constitutional
mechanisms is also, in my view, therefore unwarranted. In that regard in Tchenguiz
v Imerman (supra,) the Court observed as follows:
“Are the courts to condone the illegality of self-help consisting of breach of
confidence because it is feared that the other side will itself behave unlawfully
and conceal that which should be disclosed? The answer in our judgment can
only be: No”.
At paragraph 138 the Court stated further that:
“Otherwise the position would be that the party employing the criminal or
fraudulent agent would have it entirely within its power to decide which of the
criminally or fraudulently acquired information he was willing to rely on and
disclose and which he was not. Where such a party will be asking the court to
make inferences from such material it is only fair that such material should be
seen as a whole”.
84. The point made above in the context of the matter before me is that if litigants
choose to use clandestine means to procure information such actions would
heavily compromise the need for article 35 of the Constitution and would
obviously violate the other parties’ fundamental right to privacy under article 31
of the Constitution. Had the petitioners followed lawful channels and procedures
available in law in obtaining the information, then the question of violation of
the respondents’ rights to privacy as alleged in the cross-petition would not have
arisen. Indeed, in Dubai Aluminium Co Ltd v Al-Alawi [1999] 1 WLR 1964 where
confidential documents had been obtained by a private investigator’s agents by
making so-called ‘pretext calls’, the Judge held that there was a strong prima facie
case of criminal or fraudulent conduct in obtaining of the information involving
breaches of the England Data Protection Act of 1984. Rix, J stated thus therefore:
“It seems to me that if investigative agents employed by solicitors for the
purpose of litigation were permitted to breach the provisions of such statutes
or to indulge in fraud or impersonation without any consequence at all for
the conduct of the litigation, then the courts would be going far to sanction
such conduct. Of course, there is always the sanction of prosecutions or civil
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178 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

suits, and those must always remain the primary sanction for any breach of the
criminal or civil law. But it seems to me that criminal or fraudulent conduct
for the purposes of acquiring evidence in or for litigation cannot properly
escape the consequence that any documents generated by or reporting on
such conduct and which are relevant to the issues in the case are discoverable
and fall outside the legitimate area of legal professional privilege. It is not as
though there are not legitimate avenues which can be sought with the aid
of the court to investigate (for instance) banking documents. That apparently
is true in Switzerland as well. In any event, the material being investigated is
usually material which falls within the other party’s possession or control, and
which in all probability he will in due course be obliged to disclose himself.”
85. I agree with the above sentiments and the law in Kenya as regards the procedures
for introducing a public document into Court as evidence is also clear. Section 80
of the Evidence Act states thus;
“Every public officer having the custody of public documents which any
person has a right to inspect shall give that person on demand a copy of it on
payment of the legal fees thereof, together with certificate written at the foot
of such copy that it is a true copy of such document or as the case may be, and
such certificate shall be dated and subscribed by such officer with his name and
his official title and shall be sealed”.
86 To my mind, this provision exists in our law books for a good reason; it guarantees
the authenticity and integrity of the documents relied upon in Court. The
petitioners in this case have relied on photocopies of several documents to support
their case and yet section 83 of the Evidence Act states that:
“(1) The court shall presume to be genuine every document purporting to be
a certificate, certified copy or other document which is –
a. Declared by law to be admissible as evidence of any particular fact; and
b. Substantially in the form, and purporting to be executed in the
manner, directed by law in that behalf; and
c. Purporting to be duly certified by a public officer.
(2) The court shall also presume that any officer by whom any such document
purports to be signed or certified held, when he signed it, the official
character which he claims in such document.”
87. It is clear therefore that the documents produced in this Court fall short of the
criteria established under the Constitution and the Evidence Act.The photocopies
of the documents are not certified in accordance with the law and it therefore
follows that this Court cannot rely on them because they are not admissible. In
addition, section 35 of the Evidence Act also provides for the admissibility of
documentary evidence as follows:
“(1) In any civil proceedings where direct oral evidence of a fact would be
admissible, any statement made by a person in a document and tending
to establish that fact shall, on production of the original document, be
admissible as evidence of that fact if the following conditions are satisfied,
that is to say –
a. If the maker of the statement either –
i. Had personal knowledge of the matters dealt with by the
statement; or
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 179

ii. Where the document in question is or forms part of a record

purporting to be a continuous record, made the statement (in so
far as the matters dealt with thereby are not within his personal
knowledge) in the performance of a duty to record information
supplied to him by a person who had, or might reasonably be
supposed to have, personal knowledge of those matters; and
b. If the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be called
as a witness need not be satisfied if he is dead, or cannot be found, or
is incapable of giving evidence, or if his attendance cannot be procured
without an amount of delay or expense which in the circumstances of the
case appears to the court unreasonable.”
It is obvious that the documents purportedly relied upon by the Petitioners do not
meet the above criteria and are therefore not admissible.
88 I would still have arrived at the same conclusion even if none of the respondents
had denied the existence of those documents or disputed their contents and I say
so although I am aware of the decision in Karuna s/o Kaniu v Reginam [1995] All
ER where it was stated as follows:
“In considering whether evidence is admissible, the test is whether it is relevant
to the matters in issue, and, if it is relevant, the court is not concerned with the
method by which it was obtained or with the question whether that method
was tortious but excusable; this principle, however, does not qualify the rule
that a confession can only be received in evidence if it is voluntary.”
89. Looking at the reasoning in Karanu (supra) I am certain that the same would not
apply in the instant petition. I say so because as will be seen from the provisions of
the law as cited above, it is clear how documents are to be admitted as evidence.
The law having concerned itself in such a manner, I do not think that is proper
for a Court of law to disregard or concern itself with the method by which
documents to be relied upon in evidence were obtained. I also say so because
article 50(4) of the Constitution states as follows:
“Evidence obtained in a manner that violates any right or fundamental freedom
in the Bill of Rights shall be excluded if the admission of that evidence would
render the trial unfair or would otherwise be detrimental to the administration
of justice”.
The issue therefore and following on that provision is whether allowing the
documents to remain on record, would be an action detrimental to the administration
of justice.
In that regard, in Derby & Co Ltd and others v Weldon and others [1990] 3 ALL ER
672 it was held that:
“Where privileged documents belonging to one party to an action were
inadvertently disclosed to and inspected by the other side in circumstances
such that the inspecting party must have realized that a mistake had occurred
but sought to take advantage of the inadvertent disclosure, the court had power
under its equitable jurisdiction to intervene and order the inspecting party
to return all copies of the privileged documents and to grant an injunction
restraining him from using information contained in or derived from the
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180 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

documents, even if it was not immediately obvious that the documents were
privileged. Since the conduct of the defendants’ solicitors made it plain that
they were seeking to take advantage of an obvious mistake, the court would
order them to return all copies of the privileged documents which they had
obtained as a result of the mistake, including the three documents in issue.”
90. I am in agreement with the exposition of the law and I am also in agreement with
the decision in Baseline Architects Ltd and others v National Hospital Insurance Fund
Board Management [2008] eKLR where it was stated that:
“I therefore think [that] the intense criticism levelled against the employees
of the applicant in the way the documents attached to the affidavits of the
respondents were obtained is a matter of great concern. Perhaps it shows the
lack of respect and trust by the said employees”.
The Court went on to state that:
“In my understanding, a party to a litigation is not obliged to produce documents
which do not belong to him but which have been entrusted to his company by
a third party in confidence. It would be an abuse of that confidence to disclose
it, without the permission of the owner of the original documents”.
91. Applying the same reasoning to the present petitions, I recall that the contention
put forward by the respondents was that the production and use of its documents
illegally obtained is likely to be injurious to the public. My humble view is that a
possible injury to public interest must be balanced with another risk which is the
frustration of administration of justice by such refusal. On that issue, Lord Reid in
Konway v Limmer [1968] 1 All ER 874 expressed himself as follows:
“It is universally recognized that there are two kinds of public interest which
may clash.There is the public interest that harm shall not be done to the nation
or the public service by disclosure of certain documents, and there is the
public interest that the administration of justice shall not be frustrated by the
withholding of the documents which must be produced if justice is to be done.
There are many cases where the nature of the injury which would or might be
done to the nation or the public service is of so grave a character that no other
interest, public or private, can be allowed to prevail over it. With regard to such
cases, it would be proper to say, as Lord Simon did, that to order production of
the document in question would put the interest of the state in jeopardy, but
there are many other cases where the possible injury to the public service is
much less and there one would think that it would be proper to balance the
public interest involved. I do not believe that Lord Simon really meant that the
smallest probability of injury to the public service must always outweigh the
gravest frustration or the administration of justice.”
92 I am in agreement and I must now address the issue whether a party is entitled to
use, to his advantage, stolen or irregularly obtained documents in a manner that
is prejudicial to other parties in proceedings such as the one before me. As stated
elsewhere above, the documents produced and relied on by the petitioners were
meant for the respondents and the Exim Bank of China. In my understanding, it
is necessary to secure some freedom of communication especially in Government
offices. The 2nd respondent and the 3rd respondent, for example, had sought advice
from the 1st respondent, the Attorney General, during the negotiations leading to
the impugned contracts. It is a principle of public interest that such advice ought
to be written with utmost confidence and if such communication were to be
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 181

availed to members of the public in unclear circumstances, then I must agree with
Mr. Njoroge for the 1st and 3rd respondents that it is prejudicial to public interest,
however pertinent the issue may appear and the reasons for that finding are not far
to find. As was stated in Baseline Architects Ltd (supra)
“In my humble view, it is of utmost importance that public service should function
properly and to my mind it cannot do so unless commonplace communications
between one civil servant and another are privileged from production. It would
also seem to me that it would be an injustice to civil servants to hold that they
are so timid that they would not write freely and candidly unless they know
what they wrote could in no circumstances whatsoever, come to the light of the
day to be used by a person not intended to see or rely on the contents of such
documents. However, it is also important to ensure that claims of privilege are not
used unnecessarily to the detriment of the vital needs of the court to have the
truth put before it.
The point I am making is that judicial control over the evidence in a case cannot
be abdicated to the caprice of privilege, yet we cannot say that courts may
automatically require a complete disclosure. It is in the public interest that the
material should be withheld if by its production and disclosure, the safety and
well-being of the public could be adversely affected. It is, I think a principle which
commands general acceptance that there are circumstances in which the public
interest must be dominant over the interest of a private individual.To the safety or
the well-being of the general public, the claims of a private litigant motivated by
profit may have to be subservient.”
The Court went on to state that:
“It is therefore vital to protect the public form private interest peril – i.e.
interests of a litigant must give way to that of the general public. It is quite
obvious that public policy requires that the most unreserved communication
should take place between public servants and it should not be subject to
restraints or limitations. But it is quite clear that if the document in possession
of the respondents is allowed to be produced, used and relied upon in a court
of justice, that would in essence restrain the freedom of communication and
render public officers to proceed in a more cautious, guarded and reserved
manner in their communication and concerns.”
In conclusion, the Court stated that:
“It is also clear in my mind that justice is administered in civil disputes on the
principles that you cannot use an advantage obtained improperly or illegally in
a manner prejudicial and/or detrimental to the interest of the opposite party.
That principle is based and/or founded on fair play and there can never be
justice without fair play. And in my opinion there cannot be fair play if we
allow parties to steal a match by relying on documents improperly obtained
from the other side.”
I am in complete agreement with the learned Judge and to my mind, it matters
not whether a report of theft of those documents has been made or not. The
petitioners cannot simply rely on information that they obtained in unclear
circumstances and to allow them to do so would in my view, defeat the very
essence of article 35 of the Constitution and the purposes it intends to achieve as
well as the rights of privacy enshrined in article 31 of the Constitution.
93 I have already said that a citizen is entitled to information held by the State and it
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182 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

is thus clear that there is no need or room to use irregular methods in obtaining
information since the law has entitled every citizen the right to information only
by use of lawful means. The duty of the State to show why that information
should not be given as sought is also clear but it must be remembered that the right
to information is not absolute and may be limited in appropriate and reasonable
circumstances.
94. I am also aware that article 35(3) has mandated the State to publish information
affecting the Nation.To my mind therefore, the petitioners could properly compel
the Government to publish the information relating to the SGR project in
the event that it fails to do so and if that information affects the Nation, they
can properly seek this Court’s intervention. I have stated this to show that the
petitioners had in fact many avenues in law as to how they could have obtained
the information, subject of the SGR project, without resorting to illegal and
untidy measures.
95. It is therefore clear to my mind that in obtaining the documents which the
petitioners are relying on in the present petition, they violated the 2nd respondent’s
fundamental right to privacy and also the privacy of the communication between
the State and the Exim Bank of China. Article 31 of the Constitution grants every
person the right to privacy which right includes the right not to have the privacy
of their communication infringed. I have already stated elsewhere above that the
public servants who indeed clandestinely gave the petitioners the documents
acted in violation of their Code of Conduct and the Public Officers Ethics Act.
There are of course exceptions to the rule of reliance and production of without
prejudice communication. In the case of Lochab Transport Ltd v Kenya Arab Orient
Insurance Ltd156 Justice Shields held as follows:
‘I do not understand this plea. It could only be made by a lawyer who did not understand
the significance of the words ‘without prejudice.’ You cannot have an agreement made
without prejudice. If an offer is made ‘without prejudice’, evidence cannot be given of
this offer. However, if this offer is accepted, a contract is concluded and one can give
evidence of the contract and given evidence of the terms of the ‘without prejudice’ latter
offer. See the quotation from Walker v Walker 23 QBD 335 referred to by Mr Wandaka
…’

2.4.2 Documents May Be Struck Out

Under Order 11, rule 3(2)(o)(iii) a party or even the court on its own motion, may,
inter alia, make such order as may be appropriate including - striking out of any
document or part of it. The inclusion of privileged, confidential or without prejudice
documents may lead to delay in the trial on account of an application to strike out. In
addition, the offending party will be penalised in costs. Careful consideration must be
given before including such documents in the bundle.

2.5 List of Witnesses to be Called at the Trial

Order 3, rule 2 of the CPR states as follows:

2. All suits filed under rule 10 including suits against the government, except small
claims, shall be accompanied by —
(a) the affidavit referred to under Order 4, rule 1(2);

156 [1986] eKLR

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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 183

(b) a list of witnesses to be called at the trial;

(c) written statements signed by the witnesses excluding expert witnesses; and
(d) copies of documents to be relied on at the trial including a demand letter
before action:
Provided that statement under subrule (c) may with leave of court be
furnished at least fifteen days prior to the trial conference under Order 11.
The proviso does not make it mandatory to file a witness statement with suit.
Let us take the typical banking litigation matter. In practice, the bank normally
calls one witness who shall testify, depending on the complexity of the case. It is
important to ensure that the officer to be the bank’s witness is familiar with the facts
of the case. If the witness leaves employment of the bank, another list setting out the
new witness shall have to be filed in due course if the bank is unable to procure the
attendance of the original witness.
However, insurance companies will face a challenge in this regard because they
usually take almost three years before taking out subrogation proceedings. By this
time the insured may not be readily available and a suit will become time barred on
account of delay in locating the plaintiff. It is therefore paramount to file suit with
reasonable time.
There is no need to call numerous witnesses who will basically repeat the gist of
the evidence. Ascertain from the outset the witness who is credible and is comfortable
appearing in court to testify.

2.5.1 Fluency of Witnesses

If a witness is not sufficiently fluent in English to give his evidence, the witness
statement should be in the witness’s own language and a translation provided. If a
witness is not fluent in English and can understand written English, the statement
need not be in his own words provided that these matters are indicated in the
statement itself. It must, however, be written so as to express as accurately as possible
the substance of his evidence.157
The gist of the above is that suits ought to be filed expeditiously when the witness
statements can be prepared in good time. It is also good practice to encourage clients
to file suits early when disputes arise when the memory of the witness is fresh. Do not
wait to file suit when limitation is about to expire.

2.5.2 Written Statements Signed by the Witnesses Excluding Expert

Witnesses
Written witness statements have been successfully used in the various jurisdictions the
world over. It serves to dramatically reduce the time spent at the trial of the case. As a
matter of course, the advocate will assist the witness in conveying the facts of the case
in a coherent manner.The witness must ensure that his statement contains an accurate
representation of the facts.

157 Civil Procedure 2011 Volume 2 at page 345 paragraphs H1.4 & H1.5. This is also popularly referred to as the
‘White Book’.
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184 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1. The statement should relate to facts and not opinion. No submissions of law are
permitted.
2. Remember the rule on hearsay evidence.
3. The statement should be concise and clear. Do not have convoluted statements
which are incomprehensible.
4. Be wary of making deceptive and false statements which may invite charges of
perjury or contempt of court.
5. The statement should be in the first person e.g. ‘I witnessed the accident...’

2.5.3 Format of the Witness Statement

Before meeting the witness have all the documents to be relied on available beforehand
to enable you to prepare the questions to be answered by the witness.
Bear in mind the rules of evidence when preparing the witness statement.
The witness statement shall contain the heading of the suit.There could be several
witness statements and it is important to clarify this. After the heading of the suit one
can set out the name of the witness as follows:
Witness statement of Mdosi wMambo
To avoid the witness statement pages being accidentally lost, it would be important to
bind the witness statement or having each page set out the case number by way of a
header or footer. Each page must be paginated. For the sake of consistency, each page
must be paginated at the bottom and never at the top.This is to avoid untidiness when
lodging an appeal as the numbering switches to the top right hand corner.

2.5.4 Content in Witness Statement

The following is a summary of what should go in the preparation of the witness
statement.
1. The witness statement should give the full names and job designation of the
witness. In the case of an expert witness it would be vital to set out his expertise
and years of experience. Usually the expert witness is articulate and should be
asked to prepare his statement regarding the material issues he will address. You
can then look at the draft and refine it after clarifying any issues. The same will
apply to witnesses. For instance, employees of companies are proficient enough to
prepare their own draft witness statements after having a witness interview where
the issues for determination are set forth and documents examined.’. Remember
that a witness should testify to matters in his own words that he is comfortable
with.
2. For the sake of clarity, just like in an affidavit, each paragraph should be numbered.
3. If the documents relied upon are bulky or bearing in mind the issues for
determination, it would be useful to have useful subheadings such as, ‘the letter of
offer, the legal charge, the insurance policy document, et cetera. The witness shall
rely on the bundle of documents already filed.
4. Set out the facts of the case in a chronological sequence and keep it simple.
Remember, the witness is not an expert in law and should confine himself to
matters of fact.
5. Just like in an affidavit, the witness statements must contain a statement of truth.
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 185

The words can be: I verily believe that the facts stated in this witness statement are
true’. This shall appear at the end of the statement.
6. The witness statement should be dated, and must be signed by the person making
it. It may be useful to have a person to witness the signature.
7. If a witness, whose evidence was crucial particularly as to facts peculiar to his
knowledge, were to regrettably pass away, his witness statement would still be
admissible under the provisions of section 35 of the Evidence Act which reads:
35.(1) In any civil proceedings where direct oral evidence of a fact would be
admissible, any statement made by a person in a document and tending
to establish that fact shall, on production of the original document, be
admissible as evidence of that fact if the following conditions are satisfied,
that is to say -
(a) if the maker of the statement either -
(i) had personal knowledge of the matters dealt with by the statement;
or
(ii) where the document in question is or forms part of a record
purporting to be a continuous record, made the statement (in so
far as the matters dealt with thereby are not within his personal
knowledge) in the performance of a duty to record information
supplied to him by a person who had, or might reasonably be
supposed to have, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be
called as a witness need not be satisfied if he is dead, or cannot be
found, or is incapable of giving evidence, or if his attendance cannot
be procured without an amount of delay or expense which in the
circumstances of the case appears to the court unreasonable.
(2) In any civil proceedings, the court may at any stage of the proceedings, if
having regard to all the circumstances of the case it is satisfied that undue
delay or expense would otherwise be caused, order that such a statement as
is mentioned in subsection (1) shall be admissible or may, without any such
order having been made, admit such a statement in evidence -
(a) notwithstanding that the maker of the statement is available but is not
called as a witness;
(b) notwithstanding that the original document is not produced, if in lieu
thereof there is produced a copy of the original document or of the
material part thereof certified to be a true copy in such manner as may
be specified in the order or the court may approve, as the case may be.
(3) Nothing in this section shall render admissible any statement made by a
person interested at a time when proceedings were pending or anticipated
involving a dispute as to any fact which the statement might tend to
establish.
(4) For the purposes of this section, a statement in a document shall not be
deemed to have been made by a person unless the document or the material
part thereof was written, made or produced by him with his own hand, or
was signed or initialled by him or otherwise recognized by him in writing
as one for the accuracy of which he is responsible.
(5) For the purpose of deciding whether or not a statement is admissible by
virtue of this section, the court may draw any reasonable inference from
the form or contents of the document in which the statement is contained,
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186 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

or from any other circumstances, and may, in deciding whether or not a

person is fit to attend as a witness, act on a certificate purporting to be the
certificate of a medical practitioner.

2.5.5 Sample Witness Statement

The following is a sample witness statement that incorporates the various rules on
drafting the witness statement.
Republic of Kenya
In the High Court of Kenya at Nairobi
The Commercial and Admiralty Division
Civil Suit No. 12304 of 2016

TAJIRI LIMITED…………………… ……………………............PLAINTIFF

VERSUS

HONEST SUPPLIERS LIMITED………………..................DEFENDANT

Plaintiff ’s Witness Statement of Mdosi Mingi

1. I am a director of the Plaintiff and I am duly authorised to make this Witness
Statement as the Plaintiff ’s evidence in support of its suit.
2. I would like to produce as evidence in support of the Plaintiff ’s suit all the
documents set out in the Plaintiff ’s List of Documents dated 10th March 2016.
3. The Plaintiff entered into an agreement with the Defendant for the supply of Tea
Oil 80%. A copy of the agreement is at page 1.
4. The Defendant submitted samples of Tea Oil 80% on or about April 2015 which
the Plaintiff approved on 5th May 2015. It was a condition precedent that the bulk
of the goods supplied would correspond with the sample in quality and would
be merchantable. The following documents confirm that at all material times, the
Defendant was to supply Tea Oil 80%. This fact is not in dispute as demonstrated
below.
Defendant’s List of Documents dated 28th April 2016
(a) At pages 2 to 3 are the Defendant’s letters dated 14th March 2016 offering
20 drums of Tea oil 80%.
(b) At page 15 are the letters dated 15th and 20th April 2015 where the parties
were in discussion.
Plaintiff ’s List of Documents dated 10th March 2016
(c) At page 10 is the Defendant’s Certificate of Analysis dated 30th April
2015 confirming that the Tea Oil supplied contained test results of 80.12%
terpinen-4-ol.
(d) At page 15 is the Import Cost Summary showing a sample approval of 85%
on 10th May 2015 and a product supplied of Tea Oil 80%.
5. The Plaintiff duly paid for the delivery of 20 barrels of Tea Oil supplied by
the Defendant at a cost of KShs 30,500,000. As shown in the Plaintiff ’s List of
Documents between pages 8 to 10 the product was supplied.
6. Contrary to the Plaintiff ’s strict specifications the Defendant supplied goods that
were not as per the express specifications and the sample that had been approved.
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 187

The Tea oil supplied by the Defendant had a strong odour that raised numerous
complaints from the Plaintiff ’s customers. These complaints were made known to
the Defendant after the Plaintiff was unable to sell the product to its customers
and had to refund the payments made to the customers.The following documents
demonstrate the various complaints received in respect of the eucalyptus oil
supplied by the Defendant- batch 1524748.

COMPLAINTS BY SOME OF THE CLIENTS

[Documents below are in the Plaintiff ’s List of Documents]
(a) Karibu Wote Ltd on 5th August 2015 returned 2 drums of the Tea oil
because it was not to standard. The Plaintiff had to refund KShs 2,000,000.
The documents are at pages 12 to 14.
7. Following various letters after the Plaintiff complained about the product, the
Defendant admitted that the Tea oil had issues.
8. On account of the wrong product supplied, the Plaintiff has been unable to dispose
of the product and has had its business reputation tarnished.
9. The Plaintiff has had to incur the costs of quality analysis of the Tea oil supplied
by the Defendant at great cost. The particulars of various test revealed that the
product supplied by the Defendant was sub-standard.

PARTICULARS
(a) The critical reading of the terpinen-4-ol content was 20% as opposed to the
standard of not less than 80%.
10. The verily believe that the Defendant supplied goods that were sub-standard
and the tests by the experts and comments from the customers confirm that the
product supplied was not merchantable.
11. The Plaintiff has suffered KShs 30,000,000 being refund for the goods supplied.
The receipt for the payment made to the Defendant is at page 11.
12. Despite the Plaintiff demanding that the Defendant collects the goods and
compensates the Plaintiff, the Defendant has neglected and/or refused to do so. A
copy of the letter of demand is at page 12.
13. I verily believe that the facts stated in this Witness Statement are true and pray that
judgment be entered as prayed in favour of the Plaintiff.
Name of Witness Mdosi Mingi
Signature of Witness
Date
Witnessed by: Kijana Mambo
Date
Wazito & Co. Advocates
Advocates for the Plaintiff
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188 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Drawn & Filed by: - To be Served Upon:

Wazito & Co. Advocates, Jaribu Uone Advocates
Hakuna Pesa Plaza, 10th Floor, Tajiri Plaza
Maskini Street Gold Boulevard
P.O.Box 12325 P.O.Box 1047
Nairobi. Nairobi
Office Mobile: 0700125007 Office Mobile:0747 258456
Email:Wazito@Gmail.Com Email:jaribuadv@Yahoo.Com

2.5.6 Analysis
1. The witness statement’s layout and presentation is simple and easy to read.
2. From the outset, it is important for the witness to confirm that he is producing
and relying on the documents already filed in court.
3. The narrative flows and develops the plaintiff ’s case.
4. Reference is made to each document relied upon on the documents produced in
court. As a matter of style, I prefer to set out reference to the pages in the bundle
of documents in italics. It draws attention to the particulars documents.
5. The witness statement can be witnessed. It does not have to be commissioned as
the witness will be sworn or affirmed prior to producing his witness statement as
the evidence-in-chief.
6. The witness can also counter the defendant’s testimony and refer to the defendant’s
documents.

2.5.7 Summary of the Contents of A Witness Statement

An excellent summary of what has just been discussed is set out in the English Civil
Procedure, 2011.158 It states as follows:
H 1.1
(a) The function of a witness statement is to set out in writing the evidence-in-chief
of the witness; as far as possible, therefore, the statement should be in the witness’s
own words;
(b) it should be as concise as the circumstances of the case allow without omitting any
significant matters;
(c) it should not contain lengthy quotations from documents;
(d) it is seldom necessary to exhibit documents to a witness statement;
(e) it should not engage in (legal or other) argument;
(f) it must indicate which of the statements made in it are made from the witnesses’
own knowledge and which are made on information or belief, giving the source
for any statement made on information or belief;
(g) it must contain a statement by the witness that he believes the matters stated in it
are true; proceedings for contempt of court may be brought against a person if he
makes, or causes to be made, a false statement in a witness statement without an
honest belief in its truth.

158 Sweet and Maxwell. See page 345, paragraphs H1.1 to H1.3
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 189

H 1.2
It is usually convenient for a witness statement to follow the chronological
sequence of events or matters dealt with ...it is helpful for it to indicate to which
issue in the list of issues the particular passage in the witness statement relates,
either by a heading in the statement or in a marginal notation or by some other
convenient method.

H 1.3
It is improper to put pressure of any kind on a witness to give anything other than
his own account of the matters with which his statement deals. It is also improper
to serve a witness statement which is known to be false or which it is known the
maker does not in all respects actually believe to be true.

2.5.8 Evidence- in- Chief

Where a witness is called to give oral evidence, his witness statement is to stand as
his evidence-in-chief unless the Court orders otherwise. In an appropriate case the
trial judge may direct that the whole or any part of a witness’s evidence-in-chief is
to be given orally. A witness giving oral evidence at trial may with the permission of
the court amplify his witness statement and give evidence in relation to new matters
which have since arisen since the witness statement was served. A supplemental
witness statement should normally be served where the witness proposes materially to
add to, alter, correct or retract from what is in his original statement.159

2.5.9 There is no Property in a Witness

There is a misperception that a party cannot summon the opponent’s witness. For
instance, there may be occasions when the opposing party does not want to present a
certain witness whose evidence may be favourable to the opponent.
Section 22 of the Civil Procedure Act gives the court power to summon any
witness. It reads:
22. Subject to such conditions and limitations as may be prescribed, the court may, at
any time, either of its own motion or on the application of any party -
(a) make such orders as may be necessary or reasonable in all matters relating to
the delivery and answering of interrogatories, the admission of documents
and facts, and the discovery, inspection, production, impounding and return
of documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give
evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.
Order 16, rule 1 of the Civil Procedure Rules states:
‘At any time before the trial conference under Order 11 the parties may obtain, on
application to the court or to such officer as it appoints in this behalf, summonses to
persons whose attendance is required either to give evidence or to produce documents.’

159 Civil Procedure, 2011,Volume 2 at page 345, paragraphs H1.6 & H1.7
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190 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In the case of Hirji v Modessa,160 the Court of Appeal considered the issue of whether
a party in civil proceedings can compel the opposing party to give evidence.
The appellant sued for damages for the death of her son. The only issues were
whether the persons named as dependants were in fact dependants of the deceased; and
quantum. There was no evidence of any drop in the profits of the business following
his death. At the trial the judge refused to allow the appellant’s advocate to call the
respondent (who was in court and whom his advocate had indicated that he did not
intend to call) as a witness.
The court held that although the respondent was a competent and compellable
witness he had not been summoned, and the judge therefore had a discretion whether
or not to require him to give evidence, which discretion he should in the circumstances
have exercised by allowing him to be called; but there had been no failure of justice;
Justice Law J.A held at page 726, paragraph D [page 2]:
“Although it may be unusual, there is nothing wrong in a plaintiff calling the defendant
as a witness, especially (as in this case) when Counsel for the defendant has indicated that
he will be calling his client.”

2.5.10 Adverse Inference

Section 3 of the Evidence Act deals with the issues surrounding proving of facts. It
reads:
“evidence” denotes the means by which an alleged matter of fact, the truth of which is
submitted to investigation, is proved or disproved; and, without prejudice to the foregoing
generality, includes statements by accused persons, admissions, and observation by the
court in its judicial capacity;
“fact” includes -
(a) any thing, state of things, or relation of things, capable of being perceived by the
senses; and
(b) any mental condition of which any person is conscious;
“fact in issue” means any fact from which, either by itself or in connexion with
other facts, the existence, non-existence, nature or extent of any right, liability or
disability, asserted or denied in any suit or proceeding, necessarily follows:
(2) A fact is proved when, after considering the matters before it, the court either
believes it to exist, or considers its existence so probable that a prudent man ought,
in the circumstances of the particular case, to act upon the supposition that it
exists.
(3) A fact is disproved when, after considering the matters before it, the court
either believes that it does not exist, or considers its non-existence so probable that
a prudent man ought, in the circumstances of the particular case, to act upon the
supposition that it does not exist.
(4) A fact is not proved when it is neither proved nor disproved.
Section 112 of the Evidence Act says:
‘In civil proceedings, when any fact is especially within the knowledge of any party to
those proceedings, the burden of proving or disproving that fact is upon him.’

160 [1967] E.A 724

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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 191

In the case of Kimotho v Kenya Commercial Bank161the court considered whether by

the failure to call a witness the court may infer that a person’s evidence would not
have helped a party whom it was reasonably expected to call that person as a witness.
The court held that failure by a party to call as a witness any person whom he might
reasonably be expected to call if that person’s evidence be favourable to him, may
prompt a court to infer that that person’s evidence would not have helped the party’s
case.
The plaintiff had been employed by the defendant on a two-year contract after
retirement on attaining the age of 55 years. He held a very senior position in the
defendant bank being assistant general manager. Before the expiry of the two years,
the plaintiff received a letter terminating his services with immediate effect. The
defendant cited a clause in the contract of employment permitting it to terminate
the plaintiff ’s employment without notice if the plaintiff committed any breach of
the contract provisions or was guilty of grave misconduct or wilful neglect of duty.
The reasons given for the termination were that the plaintiff had handled customers
and staff unsatisfactorily, that his conduct had deteriorated over time culminating in
the plaintiff ’s misconduct at a senior management meeting at which the plaintiff (was
alleged to have) used derogatory and unacceptable language against a colleague and to
have demonstrated insubordination to the bank’s chairman.
The plaintiff then brought suit against the defendant claiming that the termination
was wrongful. At trial of the suit, the defendant’s witness sought to rely on an incident
that allegedly happened at a senior management meeting where the plaintiff allegedly
engaged in an altercation with a colleague. The alleged colleague was, however, not
called to testify.
At page 109 paragraph d [page 4], the court adopted the dicta in the case of
O’Donnel v Reichand Supreme Court [1975] VR 916 and held:
“Failure by a party to call as a witness any person whom he might reasonably be expected
to call if that person’s evidence be favourable to him, may prompt a court to infer that
that person’s evidence would not have helped the party’s case.”

2.5.11 Expert Witnesses

There are several instances when the testimony of an expert will be required and has
to presented in court. In this instance you will produce the expert’s opinion as part
of your evidence. One should not blindly accept the evidence of the expert without
interrogating it.
It is important for an advocate who is calling an expert witness to familiarize
himself with the expert’s report by reading case law on similar matters where other
experts have testified. This will ensure that your expert is up to the task and will not
have his report destroyed easily during cross-examination or by another expert.
Always remind yourself of the role of the expert by reading various good books
on the law on evidence such as Cross on Evidence, Phipson on Evidence or Sarkar on
Evidence.
Some of the common areas that a party may call an expert are the following:

161 [2003] 1 EA 108

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192 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

• Handwriting analysis
• Accountancy
• Medical negligence
• Valuation of land
• Fingerprint analysis
• Automobile accidents
• Construction industry - architects, structural engineers, architects
• Insurance claims
Section 48 of the Evidence Act addresses the opinions of experts as follows:
48. Opinions of experts
(1) When the court has to form an opinion upon a point of foreign law, or of
science or art, or as to identity or genuineness of handwriting or finger or
other impressions, opinions upon that point are admissible if made by persons
specially skilled in such foreign law, science or art, or in questions as to
identity, or genuineness of handwriting or fingerprint or other impressions.
(2) Such persons are called experts.
A good exposition on the role of an expert is by Sarkar on Evidence162 where at pages
863 to 864 the treatise states:
“There are however cases in which the court is not in a position to form a correct
judgment without the help of persons who have acquired special skill or experience
on a particular subject, e.g.when the question involved is beyond the range of common
experience or common knowledge or when special study of a subject or special training
or special experience therein is necessary. In such cases the help of experts is required. In
this case, the rule is relaxed and expert evidence is admitted to enable the court to come
to a proper decision. Under this head comes, matters of science, art, trade, handwriting,
finger-impressions and foreign law. The rule admitting expert evidence is founded on
Necessity.
“The instances in which the witness’ opinion is excluded by this principle are roughly
classed into two groups. First, all witnesses whether testifying on observed data of their
own or on data furnished by others, may state their inferences so far only as they have
some special skill which can be applied to interpret or draw inferences from these data.
Secondly, witnesses having no special skill, who have had personal observation of the
matter in hand, may, as a result of their personal observation of the matter in hand, have
drawn inferences or made interpretations which the tribunal could equally well make
from the same data of personal observation, if laid before them: and thus if it is possible to
detail these data fully for the tribunal, the witness’ own inferences are superfluous’’ (Wig
s 1918). This mode of examination (as to the belief or opinion), however chiefly prevails
on questions of science or trade, where, from the difficulty and occasional impossibility
of obtaining more direct and positive evidence, persons of skill, sometimes called experts,
are allowed not only to testify to acts but to give their opinions in evidence [Tay s 1416].
When an expert is dead or cannot be found, his opinion may be proved by the production
of his book.’’

162 15th Edition, 1999 Wadhwa and Company Publishers, India.

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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 193

2.5.12 An Expert Must Establish His Credibility

It is important to ensure that the expert who shall testify is credible. Experts do not
come cheap and the client must be made aware of the necessity of hiring an expert
whose opinion evidence will buttress his case or reduce/destroy the credibility of the
opponent’s evidence or discredit/cast sufficient doubt as to the opponent’s expert’s
opinion.
The Court of Appeal set out the standards expected of an expert witness in the
case of Mutonyi & another v Republic.163 It is a useful guide of what to expect of an
expert who is giving opinion evidence.
The Court held as follows:
“Expert evidence is evidence given by a person skilled and experienced in some
professional or special sphere of knowledge of the conclusions he has reached on the basis
of his knowledge, from facts reported to him or discovered by him by tests, measurements
and the like.”
Section 48 of the Evidence Act (Cap. 80) provides that where, inter alia, the court has
to form an opinion upon a point “of science or art, or as to identity or genuineness of
handwriting or finger or other impressions”, opinions on that point are admissible if
made by persons “specially skilled” in such matters.
In Cross on Evidence, 5th edition at page 446, the following passage from the
judgment of President Cooper in Davie v Edinburgh Magistrates [1933] SC 34, 40, is set
out as stating the functions of expert witnesses:
“Their duty is to furnish the judge or jury with the necessary scientific criteria for testing
the accuracy of their conclusions, so as to enable the judge or jury to form their own
independent judgment by the application of these criteria to the facts put in evidence.”
So, an expert witness who hopes to carry weight in a court of law, must, before giving
his expert opinion:
1. Establish by evidence that he is specially skilled in his science or art.
2. Instruct the court in the criteria of his science or art, so that the court may itself
test the accuracy of his opinion and also form its own independent opinion by
applying these criteria to the facts proved.
3. Give evidence of the facts on which may be facts ascertained by him or facts
reported to him by another witness.’’
The court in the case of Shah and another v Shah and others164considered the application
by the applicant seeking leave to file a supplementary affidavit in response to the
respondent’s application. The intended supplementary affidavit contained, inter alia, an
exhibited report of a document examiner. In essence, the applicant sought to bring on
record expert opinion regarding handwriting in certain exhibited documents.
The respondent opposed the admission of the supplementary affidavit on grounds
that affidavits cannot be sworn indefinitely in an application, that expert opinion is
subject to cross-examination and that the opinion was not admissible because it was
based on photocopies being secondary evidence. Further, the respondent contended
that the expert witness’ evidence was to be strongly contested and his credibility was
163 [1982] eKLR
164 [2003] 1 EA 290
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194 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

important hence the affidavit ought not be admitted as evidence. The holding of the
judge was as follows:
“One of the special instances when witnesses may be called to give evidence of opinion
is where the situation involves evidence of expert witnesses and this was an exception
to the general rule that oral evidence must be direct. The expert opinion is however
limited to foreign law, science or art, including all subjects on which a course of study or
experience is necessary to the formation of an opinion. Handwriting is one such field.
As a rule of practice, a witness should always be qualified in court, by asking him various
questions, before giving his evidence. Failure to qualify an expert may result in exclusion
of his testimony.
Even where the testimony of a witness is prima facie admissible, if his evidence has been
challenged, it becomes inadmissible. Ahmed v R [1957] EA 523 followed.
Evidence of facts precedes expression of opinion. The expert witness must be called
upon to testify to the facts within his knowledge so as to be allowed to express an opinion
as to the meaning of those facts. (Section 49 of the Evidence Act).
The opinion of an expert witness is open to corroboration and or rebuttal.The opinion is
not binding on the court but is considered together with other relevant facts in reaching
a final decision in the case. The court is not bound to accept evidence of an expert if it
finds good reasons for not doing so. CD De Souza v Sharma (1953) 26 EACA 41 followed.
Properly grounded, expert evidence of scientific conclusion will be extremely persuasive
in assisting the court to reach its own opinion, the more so when the area of science
is one lending itself to greater defence of exactness than in instances of, for example,
expression of handwriting. Gancio De Sa v Arin (1931) 1 EACA 13 followed.
Since the opinion of the expert was based on secondary evidence (photocopies), and
the expert having not been qualified nor subjected to cross-examination, receiving such
evidence through supplementary affidavit would be prejudicial to the other party in the
case.’’

2.5.13 Expert’s Opinion not Binding on Court

The Court of Appeal in the case of Kimatu Mbuvi T/A Kimatu Mbuvi and Bros v
Augustine Munyao Kioko165 held that expert opinions are not binding on the court
although they will be given proper respect, particularly where there is no contrary
opinion and the expert is properly qualified.The court held as follows when addressing
the impact of expert opinions:
“On the other hand, Mr Masika found no fault with the finding since the respondent
testified that he had lost use of the hand and he was seen in court by the trial Judge. The
opinions of the doctors, he submitted, were only for guidance and were not binding on
the Judge. Nevertheless, the Judge combined the respective opinions of the two doctors
that there was reduced use of the hand and a percentage of permanent disability together
with the oral testimony of the respondent to arrive at the finding he made and he cannot
be faulted. Mr Masika further submitted that there was bound to be a difference in the
opinions of the doctors because they were instructed to examine the respondent on both
sides of the case and the opinions would favour the instructing client.
We find this latter submission by Mr Masika rather disconcerting since the suggestion
appears to be that doctors would consciously sacrifice their professional integrity and
honour at the altar of monetary benefit! Like other sciences, medicine is not an exact
science and that is why expert medical opinion is no different from other expert opinions.

165 [2007] 1 EA 139 (CAK)

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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 195

We have stated before, and it bears repeating, that such opinions are not binding on the
court although they will be given proper respect, particularly where there is no contrary
opinion and the expert is properly qualified. But a court is perfectly entitled to reject the
opinion if upon consideration alongside all other available evidence there is a proper and
cogent basis for doing so. In Ndolo v Ndolo [1995] LLR 390 (CAK), this Court stated:
“The evidence of PW1 and the report of Munga were, we agree, entitled to proper and
careful consideration, the evidence being that of experts but as has been repeatedly held
the evidence of experts must be considered along with all other available evidence and
it is still the duty of the trial court to decide whether or not it believes the expert and
give reasons for its decisions. A court cannot simply say: ‘Because this is the evidence of
an expert, I believe it’.”
The Court of Appeal held in the case of Amosam Builders Developers Ltd v Betty Ngendo
Gachie and others166 that as a general rule evidence by experts being opinion evidence
is not binding on the court. The court has to consider it along with other evidence
and form its own opinion on the matter in issue.
This was an appeal from the judgment and decree of the superior court dated 20
January 2001, in which the High Court gave judgment for the 1st respondent, for a
total sum of KShs 2,013, 537.30 being the placement value of a house, special damages
and refund of rent for a period of 11 years at the rate of KShs 900 per month. The
appellant, Amosam Builders & Developers Limited, was the 1st defendant in that suit
with Nakuru Municipal Council as the 2nd defendant. The case involved damages
against the developers who sold a building that developed serious structural defects
within 6 months of purchase. Each side called its own expert.
On the role of the expert the court held as follows:
Determination of the suit depended mainly on evidence which was presented to the
Court by professionals. Such evidence is without doubt opinion evidence.  Section 48 of
the Evidence Act, Cap. 80 of the Laws of Kenya makes provision for such evidence.
In Vander Donckt v Tuelluson (1849) 8 C.B. 12, Maule, J said: -
“All persons, I think who practice a business or profession which requires them to possess
a certain knowledge of the matter in hand are experts so far as experience is required.”
There is no doubt that the witnesses called by both sides as experts were each qualified in
their respective fields. That notwithstanding, as a general rule evidence by experts being
opinion evidence is not binding on the court. The court has to consider it along with
other evidence and form its own opinion on the matter in issue. The court is at liberty
to accept or reject evidence of experts depending on the facts and circumstances of the
case before it. (see C.D. Desouza v B.R. Sharma [1953] 26 KLR 41 at P. 42). In C.D. De
Souza the market costs of construction were rejected by a Rent Control Board, whose
decision to do so was upheld on appeal.
In the case before us there is a conflict of opinion by the experts called by both sides.
It was the responsibility of the trial court to come to a decision one way or the other
after analyzing all the evidence before it. In a case as this where evidence of experts is
conflicting a decision one way or the other depends on the credibility of witnesses.”

166 [2009] eKLR

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196 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

2.5.14 Only an Expert can Rebut another Expert’s Opinion

When faced with documents setting out an expert’s report, it is imperative that you
also have your client appoint an expert to challenge the expert’s report. Failure to do
so may result in the expert’s opinion remaining unchallenged. For instance, in running
down cases where the plaintiff has produced a medical report, if there is doubt on the
injuries sustained, always have the plaintiff examined by another doctor. If the second
medical evaluation contradicts the plaintiff ’s medical report then it is vital that both
doctors testify. If the defendant does not call the doctor to testify,then chances are
that the plaintiff ’s medical report may carry the day. The same applies in all instances
where on party calls and expert and the other side fails to call an expert to challenge
the first expert’s report.
In Dick Omondi Ndiewo T/A Ditech Engineering Service v Cell Care Electronics,167
the court ruled that the evidence of an expert can only be challenged by evidence
of another expert. The court quoted Miscellaneous Application No. 427 of 2010Ali
Mohammed Sunkar v Diamond Trust Bank (K) Limited where the court observed that:
“The defendant’s attempts to resist the plaintiff ’s application by challenging the
handwriting experts report. The report can only be challenged by counterpart expert
report, Elizabeth Hinga who is the head of Debt Recovery Unit cannot simply discredit
the handwriting experts report without tabling another handwriting report.The plaintiff
has proved that he did not author the bank transfers by his own personal averment and
also supported by expert evidence which the defendant has failed to rebut. There is no
sense to go for trial.”
The ratio decidendi in the case of Dick Omondi Ndiewo T/A Ditech Engineering Service
v Cell Care Electronics was adopted by Justice Mativo in the case of Stephen Kinini
Wang’ondu v the Ark Limited.168 I was involved in the hearing before the magistrate
where I represented the defendant who called an expert-a quantity surveyor-to
produce a report to assess the value of works carried out by the plaintiff before the
contract was terminated. The plaintiff did not call an expert to counter the report
by the quantity surveyor. He appealed to the High Court after his substantial claim
was declined and judgment entered on the basis of quantum meruit. The appeal was
dismissed and Justice Mativo delivered a well-reasoned analysis of the role of an expert
witness and held:
“The appellant asks this court to fault the learned Magistrate for holding that the
appellant did not prove his claim and for finding that the appellant was only entitled to
KShs 500,000. In arriving at the said decision, the court was persuaded by the evidence
of DW1, a professional witness called by the respondent who assessed the value of the
work done by the appellant.
The said witness who was a quantity surveyor appointed pursuant to the court order
referred to above opined that KShs 455,000 was adequate for the work done. The
respondent stated that they were willing to pay KShs 500,000, hence the court awarded
the said sum.
The appellant’s evidence in support of the amount claimed was premised on the
strength of a document dated 15 November 2011 prepared by the project manager. The
professional qualifications of this witness were not stated nor was he called as a witness.

167 [2015] eKLR

168 [2016] eKLR. The decision was delivered on 29 August 2016.
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 197

In his submissions, counsel for the appellant argued that the defence witness who did the
valuation did not interview the clerk of works or the contractor to appreciate the scope
of the work done nor did he make reference to the second contractor who completed
the work. In counsel’s view, the said report was tailor made for the purposes of beating
off the contractor’s claim, and that it was not based on fact but on hypothetical logical
extension arising from documents made available. Thus, counsel argued that the report
relied upon by his client was close to the truth.
To rebut the above argument, the respondent’s Counsel cited the case of Dick Omondi
Ndiewo T/A Ditech Engineering Service v Cell Care Electronics[5] where Justice Lucy Njuguna
citing Ali Mohamed Sunkar v Diamond Trust Bank ( K) Ltd[6] held that expert evidence can
only be challenged by evidence of another expert.
The diametrically opposed positions taken by both counsels regarding the expert
evidence brings into sharp focus a passage from a judgment by Sir George Jessell, MR in
the case of Abringer v Ashton[7] where he used the phrase “paid agents:” while describing
expert witnesses. Almost 100 years later Lord Woolf joined the list of critics of expert
witnesses. In his Access to Civil Justice Report, he said this:-
“Expert witnesses used to be genuinely independent experts. Men of outstanding
eminence in their field. Today they are in practice hired guns. There is a new breed
of litigation hangers-on, whose main expertise is to craft reports which will conceal
anything that might be to the disadvantage of their clients.”[8]
The fundamental characteristic of expert evidence is that it is opinion evidence. Generally
speaking, lay-witnesses may give only one form of evidence, namely, evidence of fact. To
be practically of assistance to a court, however, expert evidence must also provide as much
detail as is necessary to allow the court to determine whether the expert’s opinions are
well founded.
While the test for admissibility of expert evidence differs from jurisdiction to jurisdiction,
judges in all jurisdictions face the common responsibility of weighing expert evidence
and determining its probative value.[9] This is no easy task. Expert opinions are admissible
to furnish courts with information which is likely to be outside their experience and
knowledge. The evidence of experts has proliferated in modern litigation and is often
determinative of one or more central issues in a case.[10]
Expert testimony, like all other evidence, must be given only appropriate weight. It must
be as influential in the overall decision-making process as it deserves; no more, no less. To
my mind, the weight to be given to expert evidence will derive from how that evidence
is assessed in the context of all other evidence. Expert evidence is most obviously needed
when the evaluation of the issues requires technical or scientific knowledge only an
expert in the field is likely to possess. However, there is nothing to prevent reports for
court use being commissioned on any factual matter, technical or otherwise, providing;
it is deemed likely to be outside the knowledge and experience of those trying the case,
and the court agrees to the evidence being called.
While there are numerous authorities asserting that expert evidence can only be
challenged by another expert, little has been said regarding the criteria a court should use
to weigh the probative value of expert evidence. This is because, while expert evidence
is important evidence, it is nevertheless merely part of the evidence which a court has to
take into account.[11] Four consequences flow from this.
Firstly, expert evidence does not “trump all other evidence”.7 It is axiomatic that judges
are entitled to disagree with an expert witness. Expert evidence should be tested against
known facts, as it is the primary factual evidence which is of the greatest importance. It is
therefore necessary to ensure that expert evidence is not elevated into a fixed framework
or formula, against which actions are then to be rigidly judged with a mathematical
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198 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

precision.9
Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore
be “artificially separated” from the rest of the evidence. To do so is a structural failing.12
A court’s findings will often derive from an interaction of its views on the factual and the
expert evidence taken together.The more persuasive elements of the factual evidence will
assist the court in forming its views on the expert testimony and vice versa. For example,
expert evidence can provide a framework for the consideration of other evidence.
Thirdly, where there is conflicting expert opinion, a judge should test it against the
background of all the other evidence in the case which they accept in order to decide
which expert evidence is to be preferred.
Fourthly, a judge should consider all the evidence in the case, including that of the
experts, before making any findings of fact, even provisional ones.[12]
A further criteria for assessing an expert’s evidence focuses on the quality of the expert’s
reasoning. A court should examine each expert’s testimony in terms of its rationality and
internal consistency in relation to all the evidence presented. In Routestone Ltd. v Minories
Finance Ltd. and another[13] Jacob, J, observed that what really mattered in most cases was
the reasons given for an expert’s opinion, noting that a well-constructed expert report
containing opinion evidence sets out both the opinion and the reasons for it. The judge
pithily commented “[i]f the reasons stand up the opinion does, if not, not.” A court should
not therefore allow an expert merely to present their conclusion without also presenting
the analytical process by which they reached that conclusion. Where there is a conflict
between experts on a fundamental point, it is the court’s task to justify its preference for
one over the other by an analysis of the underlying material and of their reasoning.
It is my view it’s correct to state that a court may find that an expert’s opinion is based on
illogical or even irrational reasoning and reject it.[14] A judge may give little weight to
an expert’s testimony where he finds the expert’s reasoning speculative[15] or manifestly
illogical.[16] Where a court finds that the evidence of an expert witness is so internally
contradictory as to be unreliable, the court may reject that evidence and make its decision
on the remainder of the evidence. The expert’s process of reasoning must therefore be
clearly identified so as to enable a court to choose which of competing hypotheses is the
more probable.
It is a trite principle of evidence that the opinion of an expert, whatever the field of
expertise, is worthless unless founded upon a sub-stratum of facts which are proved,
exclusive of the evidence of the expert, to the satisfaction of the court according to the
appropriate standard of proof.The importance of proving the facts underlying an opinion
is that the absence of such evidence deprives the court “of an important opportunity of
testing the validity of process by which the opinion was formed, and substantially reduces
the value and cogency of the opinion evidence”. An expert report is therefore only as
good as the assumptions on which it is based.
An expert gives an opinion based on facts. Because of that, the expert must either prove
by admissible means the facts on which the opinion is based, or state explicitly the
assumptions as to fact on which the opinion is based.”

2.6 Submissions
The Practice Note Expeditious Disposal of Cases - 2008169 addressed the filing of
submissions as follows:
1. All courts are encouraged to permit the filing and exchange by the parties of

169 September 1st 2008: Gazette Notice No. 8167 of 2008

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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 199

written submissions to supplement or replace oral arguments.

2. All courts are encouraged to require that lists of authorities sought to be relied
upon by a party be filed and served three clear days before the hearing and that
the same be paginated and highlighted as necessary.
Order 51, rule 16 eventually codified the practice direction and gave the court the
discretion to limit the time for oral submissions by the parties or their advocates or
allow written submissions.
There is an excellent article written by Troy Simpson on ‘Persuading Judges in
Writing:Tips for Lawyers (And how technology can help).170 I will pick out the salient
golden rules for writing submissions from his article [as set out from paragraphs 67 to
69 in my article]. I now set out his tips in the succeeding paragraphs as they capture
the essence of writing persuasive submissions. For the sake of brevity, I have omitted
various footnotes used in Simpson’s article and recommend that one reads the full
article online.

2.6.1 Written Persuasion Provides the best Opportunity to Persuade a

Judge
American lawyers have used trial briefs and appellate briefs for a century or more. And
even courts with strong oral traditions have shifted to written advocacy.
England, too, has “now moved so far in the direction of core arguments always
being in written form”171 that Justice Lightman has said:
“[A]dvocacy … today … transcends its traditional form of oral presentation in court and
includes and finds critical expression in written forms in which expertise is called for of
the advocate and which can have a decisive effect on the outcome of a case … Counsel
now requires expertise at least as much in preparing [written skeleton arguments] as in
making oral submissions.” 172
According to Andrew Goodman, written advocacy in England (and Australia and
America) now provides “an essential tool” that “enables you to damage your opponent
without even opening your mouth”.173 Written persuasion offers a “unique opportunity,
not to be wasted”. 174

2.6.2 Your writing style can Affect all Three Classical Persuasion Processes
Your writing style can affect all three classical persuasion processes.

170 www.llrx.com/features/persuadingjudgesinwriting.htm. In the article the writer has highly recommended

the use of a specialist editing software called Stylewriter that can help one to use a persuasive writing style,
quickly and easily. The software scans for jargon, clichés, and needless words, among other flaws and suggests
replacing these flows with plain English alternatives.
171 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) (“Influencing the
Judicial Mind”) xvi.
172 The Hon Mr Justice Lightman, “Advocacy-A Dying Art?”, address to the Chancery Bar Association
Conference, 26 January 2004, quoted in Andrew Goodman, Influencing the Judicial Mind xvi.
173 Andrew Goodman, Influencing the Judicial Mind xviii
174 Andrew Goodman, Influencing the Judicial Mind xviii
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200 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Writing Clearly
First, if you do not write clearly, then your audience will not understand the logic of
your argument.175 And, in legal writing, logic persuades judges most.

Style
Second, writing style affects your reader’s emotions. Well-written prose makes readers
happy, but a poorly written document forces the reader to struggle through the
document.176
For lawyers, “well-written prose” means a writing style that captures the judge’s
attention and helps the judge to get the lawyer’s point. Specifically, lawyers please
judges by writing clearly and by organising their material.

Credibility boost

Third, writing well and eliminating “trivial” errors boosts your credibility. 177
Smith says credibility involves: “good moral character”, “goodwill”, and
“intelligence”.
“Good moral character” includes zeal, respect, candour, truthfulness, and professionalism.
Whereas good character refers to one’s general moral make up, “goodwill” refers to one’s
disposition to a specific audience (for example, a judge or opponent).
The “intelligence” traits that relate to writing style include paying attention to detail,
organising an argument, articulating an argument, and empathising with the reader.

2.6.3 Advocacy Experts Suggest Some Specific Tips

Simpson collated the following tips from various sources.

Tip 1–Write Politely

To show what Smith calls goodwill and good moral character, write politely. Scorn,
insult, sarcasm, and offensive language:
“are not the stuff of which real persuasion is made. The argument is not convincing
because the reader soon recognizes its artificiality”.25
Uncivil language lacks candour; it comprises “a form of bad manners”.26

Tip 2-Grammar
To evince credibility, avoid grammatical and punctuation errors. As American Judge
Patricia Wald has said:
“You cannot imagine how disquieting it is to find several spelling or grammatical errors
in an otherwise competent brief. It makes the judge go back to square one in evaluating
the counsel.”178

175 Michael R Smith, Advanced Legal Writing 98.

176 Michael R Smith, Advanced Legal Writing 97-98
177 Michael R Smith, Advanced Legal Writing 169
178 Patricia M Wald, “19 Tips from 19 Years on the Appellate Bench” (1999) 1 Journal of Appellate Practice and
Process 7.
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 201

Tip 3-Avoid Use of Epithets

To evince credibility and good character, avoid words like “clearly” and “obviously”.
Australian High Court Justice Kenneth has explained:
“The statement of an issue is not made more persuasive by simply sprinkling it with
intensifying epithets like ‘clearly’, ‘flagrantly’ or ‘obviously’ or … conclusory legal
statements like ‘in clear breach of its contractual obligations’.” 179
Words like “clearly” and “obviously” signal weakness rather than strength.180 They also
lack candour and fairness. And if you have to emphasise the obviousness of something,
then you insult the judge’s intelligence. Even more important, if you mistakenly call
a complex idea, or an ambiguous rule, or a nuanced judgment, “clear” and “obvious”,
then you lose credibility.

Tip 4- Understate Rather than Overstate

Understate rather than overstate. You need more skill and intelligence to understate
than overstate. In the “Art of Brief Writing”, former lawyer and author, the late F
Trowbridge Von Baur, said:
“[I]t is relatively easy to overstate a point with generalities and adjectives. However, to
understate an argument, specific and close reasoning are required. An argument that
can be understated will tend to be sound … An understated argument has a unique if
intangible power of persuasion.” 181
For example, do not change “three” to “many”; “dog” to “ferocious beast”; or
“corporate officers” to “self-seeking moguls”. Similarly, consider deleting words like
“very”. It seems paradoxical, but deleting intensifiers like “very” strengthens your
writing.

Tip 5-Hedge words

Think carefully about using hedge words like “probably” and “possibly”. Most
commentators suggest hedge words weaken your writing. On the other hand, hedge
words may sometimes help your credibility, depending on your audience. For example,
some psychological research suggests that qualified statements persuade people
who know your area of expertise (such as judges) more than unqualified statements
persuade these people; but the reverse applies for people who do not know your area
of expertise (such as lay jurors).

179 Justice KM Hayne, “Written Advocacy”, paper delivered as part of the Continuing Legal Education Program
of the Victorian Bar, 5 and 26 March 2007.
180 Bryan Garner,The Elements of Legal Style (2nd edition 2004) 363-364; Jonathan K Van Patten, “Twenty-Five
Propositions On Writing and Persuasion” (2004) 49 South Dakota Law Review 250, 269; Andrew H Baida,
“Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy” (2002) 22
Australian Bar Review 149, 160, 178 (“Fair advocacy often gives way to inappropriate (and weak) argument
… when buzzwords like ‘obviously’ and ‘clearly’ creep into a statement of facts. These adverbs are tell-tale
signals of weak or non-existent record support”).
181 F Trowbridge Vom Baur, “The Art of Brief Writing” (1976) 22 The Practical Lawyer 81, 89. See also John A
Wilson, “Common Sense in Advocacy: Some General Observations on Trial of a Suit” in George Rossman
(ed), Advocacy and the King’s English (1960) 59, 64 (“Understatement is, in itself, a powerful factor in the
psychology of persuasion”).
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202 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Tip 6-Use short words

To achieve clarity and what Smith calls positive “medium mood”, use short words,
short sentences, and short paragraphs. The less involved the language, “the easier it
is to read and to follow a thought”. Moreover, it requires more skill, thought, and
intelligence to condense an idea than to write a lengthy discourse.

Tip 7
To make your writing easy to read, avoid:
1. unnecessary legalese and other jargon;
2. clichés;
3. throat-clearing phrases (for example, “It is significant that”, “It is important to note
that”); and
4. other needless words.

2.6.4 Other Golden Rules

Brevity
Your audience is the court. Judges and magistrates are overloaded with work and
may not have the patience to read written submissions that resemble a dissertation
or novel. For instance, the trend in the Court of Appeal is to emphasise on brevity.
The writer was in one appeal instructed to limit his submissions to 10 pages from an
initial 17 pages. The final judgment eventually captured the brevity and clarity of the
submissions.182
The purpose of written submissions is to save court time and to assist the judge.
Written submissions must be factually accurate and contain references to the evidence
so that the judge can return to the source (the evidence) readily.183
The court should exercise its powers under Order 51, rule 16 by limiting the
pages of the written submissions depending on the complexity of the matter [a full
hearing will merit more pages of submissions than an interlocutory application]. In
addition, a time limit for highlighting should be imposed. After all, highlighting does
not mean verbatim reading of the entire submissions as this defeats the whole purpose
of brevity and clarity.

Identify the issues and Summarise the Facts

Summarise and audit the evidence under the issues for determination. One can at the
beginning set out the agreed facts, followed by the issues for determination [factual
and legal]. Thereafter address the issues with emphasis on applicable statutes and case
law.

182 See the case of East African Safari Air v Antony Kegode [2011] EKLR. The writer’s arguments were captured in
the judgment.
183 Christine E Adamson SC ‘Written Submissions’.This paper was presented at a bar practice course of the New
South Wales Bar Association.
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 203

Numbered Paragraphs and Sub-headings

Just like preparing an affidavit it is always neat to use numbered paragraphs to
write your submissions. It makes reading the submissions easier to comprehend and
appreciate. At the same time key points can easily be referred to and highlighted. Also
remember to paginate the submissions.

Sample Submissions
I will now set out the following submissions in a matter that I filed before the Court
of Appeal in a concluded appeal to demonstrate the format and style that I adopt
when filing my submissions.
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Appeal No.88 of 2008

Debbonair Travel Limited..................1St Appellant

Kennedy Gichuha Chege..................2nd Appellant

and

Mohammad Hassim Pondor (Suing on Behalf of…1St Respondent

The International Air Transport Association-IATA)

Mercantile Life & General Assurance Co. Ltd.……....2nd Respondent

(Appeal from the ruling and decree of the High Court of Kenya at Nairobi (Mr.
Justice M.A Warsame) dated 12 March 2008 Civil Case Number 130 of 2006).

Civil Case No 130 of 2006

Mohammad Hassim Pondor (Suing on Behalf of

The International air Transport Association-Iata) ……………1St Plaintiff

Mercantile Life & General Assurance Co. Ltd.......2Nd Plaintiff

Debbonair Travel limited......................1st Appellant

Kennedy Gichuha Chege..................2nd Appelant

Berita Kaswii Gichuha……….…3rd Respondent

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204 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1st and 2nd Respondents’ Written Submissions in Opposition to the Appeal

Dated 19 May 2008
1. The respondent’s shall make reference to the authorities set out in the List of
Authorities dated and filed on 4 March 2015.
Chronology of Relevant Events
The Agreement dated 6 June 2001
2. The terms and conditions governing the agreement are concisely set out in
paragraph 7 of the Amended Plaint at page 20 of the Record of Appeal. It is vital
to point out that all monies collected by the 1st appellant in respect of the sale
of passenger tickets remained the property of the carriers and were to be held in
trust-see the agreement at clauses 7.1 & 7.2 at page 54 of the Record].
3. The 1st appellant failed to account and avail all records relating to all transactions
under the agreement for inspection by the 1st respondent in accordance with
Clause 10- see page 55 of the Record of Appeal.
The Deeds of Indemnities
4. The 2nd appellant and 3rd defendant executed the Deeds of Indemnities at pages 34
to 37 of the Record of Appeal and agreed at all times to keep the 2nd respondent
fully indemnified against all actions, proceedings, claims, demands, losses and
default arising howsoever from the default by the 1st appellant.
Defences Filed.
5. The defence of the 1st and 2nd defendants at pages 14 to 15 of the Record of
Appeal consisted of bare denials.
6. The 3rd defendant/respondent in the Amended Defence at paragraph 6 [see pages
151 to 152 of the Record] averred that the 1st appellant herein had fraudulently
failed to remit the payments.
Grounds of Appeal
7. The appellant has in its written submissions filed on 19 March 2015 confined its
arguments to two main grounds of appeal, namely:
(a) The judge erred in law in failing to consider the failure to comply with the
Notice to Produce Documents.
(b) The judge erred in law and in fact in expecting the appellants to precisely
defend a claim by the 1st and 2nd respondents which was inadequately
pleaded and insufficiently proved.
8. We shall now address each ground of appeal.
The judge erred in law in failing to consider the failure to comply with
the Notice to Produce Documents.
9. Order 10, rule 17 of the Civil Procedure Rules [repealed] provided that a party
who wished to compel another produce documents for inspection, had to make
an application to the court. No formal application for inspection was ever filed by
the appellants.
10. Section 69 of the Evidence Act expressly states that secondary evidence shall not
be given unless the party had served a Notice to Produce. A Notice to Produce
is not an avenue to compel the production of any document; it is merely a notice
that should the original not be produced by the person legally bound to produce
it, the party giving a notice will be at liberty to adduce secondary evidence of the
existence, condition or contents of the document.
11. Copies of the agreements dated 6 June 2001 and the Deeds of Indemnity dated 3
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 205

October 2002 were exhibited in the affidavits of Mohammed Hassim Pondor and
Shem Nyamai in support of the Chamber Summons dated 2 February 2007. The
appellants’ response in the Replying Affidavit at pages 144 to 146 of the Record
of Appeal was simply to deny ever receiving the documents.
12. The crux of the matter was that the appellants failed to account for the ticket
sales. The Notice to Produce was simply a red herring. There was no follow up
application to enforce the notice. This ground of appeal has no legal basis.
The judge erred in law and in fact in expecting the Appellants to precisely
defend a claim by the 1st and 2nd respondents which was inadequately
pleaded and insufficiently proved.
13. The appellants fault the superior court for entering judgment based on the billing
analysis. The judge found that no attempt had been made to deny the accounts
produced. The Appellants did produce any rebuttal evidence to::
(a) that tickets were not sold.
(b) Give an account of the tickets sold and the monies received.
14. Section 108 of the Evidence Act states:
“The burden of proof in a suit or proceeding lies on that person who would fail
if no evidence at all were given on either side.’’
15. Section 112 of the Evidence Act states:
“In civil proceedings, when any fact is especially within the knowledge of any
party to those proceedings, the burden of proving or disproving that fact is upon
him.’’
16. At all material times, the burden was on the 1st appellant to give an account of
the ticket sales and challenge the sum claimed by stating that monies had been
accounted for and fully or partially paid. An adverse inference can be drawn by its
failure to account.
17. The Ruling of the superior court at pages 217 to 232 of the Record of Appeal
demonstrates that the court duly considered all the material issues as shown below:
(a) At page 222 of the Record, the judge correctly surmised the grounds for
striking out sham defences.
(b) At page 224 the judge held that the defendants confirmed that the 1st
defendant was appointed as an agent on terms.
(c) At pages 225-226 the judge found that no attempt had been made by the
defendants to disparage the accounts produced between the 1st defendant
and the 14 airlines. No rebuttal evidence was produced to prove that no
payments were made.
(d) At page 227 the judge correctly found that the 1st defendant had unjustly
and wrongly enriched itself in failing to account and pay for the tickets
sold.
(e) At page 228 the judge correctly found that the burden of proof was on the
1st defendant.
(f) At page 229 the judge correctly addressed the import of executing the
Deeds of Indemnity.
Summary of 1st and 2nd respondents’ Authorities in opposition to the
appeal
18. In Murri v Murri and another 1 EA 212 the CA held that the summary remedy for
striking out is applicable whenever it can be shown that the action is in some way
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206 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

an abuse of the court process or unarguable. It has nothing to do with a case being
complex or difficult. [see page 1 of the 1st and 2nd respondents’ List of Authorities]
19. There has been a series of cases in the superior court based on similar facts and
law where judgment has been entered against defendants who defaulted under
the terms of the passenger sales agreement and deeds of indemnities.The cases are
cited below and show the precedents that have already been set by the superior
courts. The present respondent’s advocates were on record in all the cited cases.
20. In Abdulrazak Khafan and another v Supersonic Travel and Tours Ltd and another [2005]
eKLR, the defendants failed to account for trust monies received from airline
ticket sales. [see page 12 of the 1st and 2nd respondents’ List of Authorities]. The
court held that the defence put forward by the defence which comprised of mere
denials did not raise any triable issues and was also a mere sham. The court also
held that failure to account and pay was a breach of trust and that there was
nothing redeeming in circumstances that showed an outright breach of trust. [see
page 21 of the 1st and 2nd respondents’ List of Authorities]
21. The court went ahead to strike it out. In arriving at the decision, the court relied
on Magunga General Stores v Pepco Distributors Ltd [1988-1992] 2 KAR 89, where
Platt, J, learned Justice of Appeal, at page 91 said:
“First of all a mere denial is not sufficient in this type of case. There must be some
reason why the defendant does not owe the money. Either there was no contract
or it was not carried out and failed. It could also be that payment had been made
and could be proved. It is not sufficient therefore simply to deny liability without
some reason given.’’
[see page 12 of the 1st and 2nd respondents’ List of Authorities].
22. In Abdulrazak Khalfan and another v Pinnacle Tours and Travel and another [2005]
eKLR the 1st defendant failed to account and pay for trust monies from airline
ticket sales in a contract that also had an indemnity clause. Regarding bare denials,
the court held that a defence that merely denies averments in a plaint is not a
serious defence, is frivolous, annoying and vexatious and one which cannot give
legitimacy to warrant a trial. [See page 17 of the 1st and 2nd respondents’ List of
Authorities].
23. In International Air Transport Association v Akarim Agencies Company Ltd [2014]
eKLR, the court held that in a contract based on trust the defendant was under
an obligation in accordance with the agreement to keep records and accounts
together with supporting documents on the sale of tickets and proceeds thereof
and avail them to 1st plaintiff.The failure of the 1st defendant to account to the 1st
plaintiff was held to constitute a breach of trust which is actionable. [see page 34
of the 1st and 2nd respondents’ List of Authorities.]
24. In Abdulrazak Khalfan and another v Pinnacle Tours and Travel and another [2005]
eKLR while commenting on the doctrine of subrogation, the court opined as
follows:
“Before concluding this matter an issue has been raised as to whether the payment
made by the 2nd plaintiff absolves the defendants from liability. With respect this is
a misapprehension of the Law. The 2nd plaintiff was entitled to file suit against the
Defendants under the doctrine of subrogation. The claim made by the plaintiffs
is one and as against the defendants it is joint and several. The question of double
enrichment does not therefore arise.’’
[See pages 17-18 of the 1st and 2nd respondents’ List of Authorities].
Effects of a Contract of Indemnity
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Trial Advocacy in the Civil Cases – Vanquishing the Shackles of Legal Complacency 207

25. In a contract for indemnity, primary liability is assumed. In a case where there is
a contract for guarantee, the liability of the guarantor is secondary. In the treatise,
“The Modern Contract Guarantee’’ by Dr. James O, Donovan, the author differentiates
between a contract of guarantee and a contract of indemnity as follows:
“The distinction between a contract of guarantee and a contract of indemnity is
that in a contract of indemnity a primary liability is assumed whether or not a
third party makes default, whilst, as has been seen, in a contract of guarantee the
surety assumes a secondary liability to the creditor for the default of another who
remains primarily liable to the creditor. The contract for indemnity, therefore, is a
contract by one party to keep the contract of indemnity, therefore is “a contract
by one party to keep the other harmless against loss’’ and is not dependent on the
continuing liability of the principal debtor.The obligation has no reference in law
to the debt of another. In other words, an indemnity imposes a primary obligation
which is independent of the continuing obligation of another.’’
[See pages 39 of the 1st and 2nd respondents’ List of Authorities]
26. In “The Law of Borrowing,’’ by Robert Burgess, Sweet and Maxwell, 1989 the
treatise describes an indemnity contract as one where the indemnifier contracts
as principal to pay in the event of a stipulated loss occurring; it is a primary
obligation on its own right. [See page 42 of the 1st and 2nd respondents’ List of
Authorities].
27. Both the 2nd and 3rd defendants in the superior court are liable under the terms of
the Deeds of Indemnity. The 3rd defendant’s defence that she had resigned from
the company was rejected by the court because her contract of indemnity was
personal to her and not transferrable to any other person.
Conclusion
28. The judge was correct in striking out the defences and the appeal should be
dismissed with costs.
Dated at Nairobi this 7 April 2015.

Wamae & Allen

Advocates for the 1st and 2nd Respondents

2.7 Authorities
Remember that it is the quality and not the quantity of the authorities that counts.
There are of course exceptions when dealing with novel points and trying to
establish precedent. The authorities can be filed in a separate bundle or attached
to the submissions. Do remember to highlight the various passages you are relying
on and summarise the legal point you are making in the written submissions. The
Supreme Court Rules, 2011 have specifically emphasised on how authorities are to be
summarised and are a useful guideline.

2.7.1 List of Authorities

15.(1) A party shall file and serve a list of authorities at least two working days before
the hearing.
(2) The list of authorities under subrule (1) shall contain a summarized analysis
of each of the listed authorities specifying the ratio decidendi, relevance and
applicability to the matter before the Court.
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208 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

2.8 Conclusion
I now conclude the discussion on submissions with an extract from an article written
by Elizabeth G. Elliot:184
“Judges, like the rest of us, are busier now than ever. Your case is just one of many on
their plates. Judicial attention spans are, of necessity, short. More information is absorbed
by reading than by listening.Your ability to rescue your case in oral argument is limited.
Accordingly, establishing a strong foundation for your case in your written material is
imperative. This does not mean you should not prepare for the oral argument. In fact,
a good written argument will often stimulate the Court and will result in your being
challenged at the hearing and directed specifically to that part of your case on which the
Court requires further clarification or assistance. Do not look upon this in a negative
light. It often means the Court is intrigued by what you wrote and wish to have an
opportunity to expand upon it.
You may leave the courtroom feeling as though you have been raked over the coals and
that all is lost; only to receive an order or judgment from the Court stating “based upon
the submissions contained in the written argument, the Court finds in your favour.’’

184 The Do’s and Don’ts of Written Advocacy. http://www.macerajarzyna.com/pages/publications/WrAdv.pdf.

Elizabeth wrote extensively on the art of writing submissions. I recommend that one reads this article.
 Chapter 3

Practice Directions - the Golden Guides Towards

Improving Efficiency in Court

3.1 Introduction
I was part of the bar-bench committee of the Commercial & Admiralty Division in
Nairobi that came up with the Practice Directions dated 2 July 2012 with regard to
the Civil Procedure Rules.
In 2014, a sub-committee of the Commercial and Bar Bench completed the draft
new Practice Directions which was adopted by the main committee.
I was also an active member of the bar-bench committee of the Environment and
Land Courts and a founder member of the Court of Appeal bar-bench committee. I
was privileged to interact with various members of the bar and the bench and through
our teamwork and dedication to improving the practice of law we managed to come
with the following practice directions that were eventually gazetted:
(1) Practice Directions on Proceedings in the Environment and Land Courts, and
on proceedings relating to the Environment and the Use and Occupation of, and
Title to Land and Proceedings in Other Courts-2014
(2) Practice Directions relating to Case Management in the Commercial and
Admiralty Division of the High Court at Nairobi-2014
(3) Court of Appeal Practice Direction - Civil Appeals and Applications-2015
This chapter is based on a past presentation I made at a Continuous Professional
Development training seminar.

3.2 Practice Directions - What is Their Role and Purpose?

The spirit of various Practice Notes/Directions is to bring about case management,
efficient use of court resources and eradicating the perennial delays that have caused
unmitigated suffering to litigants.We shall consider how the courts have embraced and
considered the legal symphony of case management.
Practice Directions are tools that supplement the Rules of Court. They serve
by regulating court practice and procedure. All advocates are expected to familiarise
themselves with the practice directions with a view to complying with them. The
Law Society of Kenya actively assists the Judiciary by timeously publicizing the
various practice directions. The sad reality is that a vast majority of advocates treat
email communication and notifications by the Society as spam mail and miss out
on important announcements. This culture should change as we will never eradicate
ignorance by refusing to read the communication from the Society and any other
professional bodies that we may subscribe to.
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210 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

3.3 List of Practice Directions and Rules since 1961 to date

Since 1961 various practice directions have been issued with the latest coming into
force on 19 March 2015. The most of the practice directions can be accessed online
in the Kenya Law reports. The following are the various practice directions. The list
may not be exhaustive.
1. Practice Note No. 2 of 1961-Lists of Authorities
2. Practice Note No. 1 of 1978-Hearings of Matters during Vacation
3. Practice Note No. 1 of 1982 Civil Procedure Act (Cap. 21) – clarified that the
absence of any valid reason for ordering a higher or lower rate of interest, the rate
of interest should now be 12% [per section 26 of the Civil Procedure Act].
4. Classification of Commercial Matters – 1997
5. The Constitution of Kenya (Supervisory Jurisdiction and Protection of
Fundamental Rights and Freedoms of the Individual) High Court Practice and
Procedure Rules, 2006 [The Gicheru Rules].
6. Filing of Proceedings in Proper Courts – 2007
7. Expeditious Disposal of Cases - 2008
8. Practice Directions Relating to the Filing of Suits, Applications and References in
Proper Courts - February 2009
9. Circular on Judicial Dress Code and Address - 2011
10. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms)
Practice and Procedure Rules, 2013 [The Mutunga Rules].
11. Practice Directions on Proceedings in the Environment and Land Courts, and
on proceedings relating to the Environment and the Use and Occupation of, and
Title to Land and Proceedings in other Courts - 2014
12. Practice Directions relating to Case Management in the Commercial and
Admiralty Division of the High Court at Nairobi - 2014
13. Court of Appeal Practice Direction - Civil Appeals and Applications - 2015
14. Practice Directions Relating to Pauper Briefs Scheme and Pro Bono Services -
2016

Court in the Driving Seat

The traditional approach was to permit the claimant to drive the case on the
assumption that expedition was in his interest, however experience has shown this to
be an unreliable assumption: Rastin v British Steel.185

Benefits of Case Management

The early identification of issues through case management is likely to encourage early
settlement of disputes and reduce the duration of proceedings. Post-trial amendments
are likely now to be viewed with greater strictness than in the past.186

185 [1994] 1 WLR 732 at 739; [1994] 2 All ER 641 at 646.

186 Nikken Kosakusho Works v Pioneer Trading Co [2005] EWCA Civ 906.
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 211

Court Retains Power to Strike out Pleadings

There is, however, a principle implied in the overriding objective that it is not just to
subject a defendant to a lengthy and expensive trial where there is no realistic prospect
of success.187
I recall one instance where I was defending a client and the plaintiff ’s advocate
was ordered to file a compliant witness statement in accordance with the practice
directions. The witness statement that had been filed did not cross-reference the
various documents relied upon by the plaintiff ’s witnesses. The plaintiff ’s advocate
did not comply with the court’s directions and on the third date when we appeared,
the advocate did not bother to appear. The judge simply ordered that the plaintiff was
barred from relying on any witness statement. Even after I had the order extracted
and served, the plaintiff ’s advocate took no steps at seeking to set aside the order and
complying with the original directions.

Issues for Determination Prior to Trial

The court should be slow to deal with single issues where there will need to be a full
trial on liability involving evidence in any event and/or where summary disposal of
the single issue may well delay, because of appeals, the ultimate trial.188

Court Can Penalize Party With Costs for Obstructing Justice

Encouragement by costs. Costs orders would usually be a source of encouragement.189
Many advocates have been condemned to pay costs for failure to comply with the case
management or pre-trial directions.

Striking out Pleadings on Technicalities vis-a-vis Oxygen principles

The initial approach of the courts now must not be to automatically strike out
a pleading but to first examine whether the striking out will be in conformity with
the overriding objectives set out in the legislation.190

Parties Must not Abuse Court Process

Under section 1A(3) the applicant has a duty to obey all court processes and orders.191
Failure to comply may lead to cost sanctions or striking out of pleadings as enunciated
above.

3.4 Decisions on Practice Directions

Do the magistrates court have jurisdiction to hear and determine land matters?

187 Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513.
188 Three Rivers District Council v Bank of England [2001] 2 All ER 513.
189 Dunnett v Railtrack [2002]1 WLR 2434.
190 Deepak Kamani v Kenya Anti- Corruption Commission (CA) [2010] eKLR.
191 Hunker Trading Company Ltd v Elf Oil Kenya Ltd (CA) [2010] eKLR.
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212 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Let us go back in time when the Honourable Chief Justice/President Supreme

Court of Kenya issued the following Practice Note dated 9 November 2012 vide
Kenya Gazette No. 16268 on matters governing land matters. The following part of
the practice direction was challenged:
“7. Magistrates Courts shall continue to hear and determine all cases relating to the
environment and the use and occupation of, and title to land (whether pending or
new) in which the courts have the requisite pecuniary jurisdiction.’’
This practice note was challenged in a constitutional petition in Edward Mwaniki
Gaturu and another v Attorney General and others.192 The petitioner sought to, inter alia,
determine the constitutionality of the directive issued in Gazette Notice No.16268 of
November 2012 by the Honourable Chief Justice.

Brief Facts
The applicants had invoked the court’s jurisdiction under article 165 of the Constitution
seeking, inter alia, to determine the constitutionality of the directive by the Chief
Justice issued in Gazette Notice No.16268. The directive related to Practice Directions
on proceedings relating to the environment and the use and occupation of, and title
to land. It allegedly granted, inter alia, the Magistrates’ Courts jurisdiction to hear and
determine cases relating to the environment and land in which those courts had the
requisite pecuniary jurisdiction. The applicants argued that this was unconstitutional
as the jurisdiction to hear and determine cases relating to the environment and land
was vested exclusively on the Environment and Land Court.

Issues
i. Whether the Constitutional and Human Rights Division of the High Court had
jurisdiction to review, set aside or vary a decision made in another High Court
Division or a Court established under article 162(2) of the Constitution.
ii. Whether the jurisdiction to hear and determine new cases relating to the
environment and use and occupation of, and title to land was vested exclusively
on the Environment and Land Court established under article 162(2) of the
Constitution.
iii. Whether the directive by the Chief Justice conferring jurisdiction upon
Magistrates’ Courts to hear and determine new cases relating to the environment
and use and occupation of, and title to land in which the courts had pecuniary
jurisdiction was unconstitutional.

Constitution of Kenya
Article 162
“(1) The superior courts are the Supreme Court, the Court of Appeal, the High Court
and the courts referred to in clause (2).
(2) Parliament shall establish courts with the status of the High Court to hear and
determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.

192 [2013] eKLR. The summary of the case has been lifted from Kenya Law Reports.
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 213

(3) Parliament shall determine the jurisdiction and functions of the courts
contemplated in clause (2).
(4) The subordinate courts are the courts established under Article 169, or by
Parliament in accordance with that Article.”
Article 165(2)(d)
Article 169
“(1) The subordinate courts are—
(a) the Magistrates courts;
(b) the Kadhis’ courts;
(c) the Courts Martial; and
(d) any other court or local tribunal as may be established by an Act of Parliament,
other than the courts established as required by Article 162(2).
(2) Parliament shall enact legislation conferring jurisdiction, functions and powers on
the courts established under clause (1).”

Environment and Land Court Act

Section 24
“(1) The Chief Justice shall make rules to regulate the practice and procedure of the
Court.
(2) The Chief Justice shall make rules to regulate the practice and procedure, in
tribunals and subordinate courts, on matters relating to land and environment.
(3) The Chief Justice shall in consultation with the Court make rules for the
determination of admissibility by the Court of proceedings pending before any
Court or local Tribunal.”
Judicial Service Act
Section 2(c)
“Despite the generality of subsection (1), the Chief Justice shall-
(a) ...
(b) ...
(c) Exercise general direction and control over the Judiciary”
Justice Lenaola held as follows:
1. Article 165(5) of the Constitution limited the jurisdiction of the High Court in
two aspects. Firstly, where the dispute related to a question reserved exclusively for
the jurisdiction of the Supreme Court and secondly, in respect of disputes falling
within the exclusive jurisdiction of the Courts contemplated in article 162(2) of
the Constitution. Robert Mwangi v Shepherd Catering Ltd and another [2012] eKLR
and Philip Kipchirchir Moi v Attorney General and another [2012] eKLR
2. The Constitutional Court had no jurisdiction to set aside or vary orders of another
court with concurrent jurisdiction, the only remedy available to an aggrieved
party was to appeal against the decision or make an application to the same judge
for them to consider a review of their decision.
3. The Constitutional Court’s jurisdiction to declare an Act of Parliament inconsistent
with or in contravention of the Constitution went altogether with the one for
interpreting the Constitution and was unlimited since the constitutionality or
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214 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

otherwise of an Act of Parliament had to be construed vis-a-vis the Constitution

and for the purposes of exercising those jurisdictions by the Constitutional Court
there could be no distinction between an Act passed to amend the Constitution or
an Act passed for other purposes. The High Court was therefore the right forum
for cases challenging the constitutionality of actions done under the authority of
the Constitution. Ssemwogerere and others v Attorney General (3) [2004] 2 EA 247
4. Article 162(2) of the Constitution provided that Parliament had to establish
Courts with the status of the High Court to hear and determine disputes relating
to the environment and use and occupation of, and title to land. Article 162(3)
then provided that Parliament had to determine the jurisdiction and functions of
the Courts contemplated in article 162(2). It was on the basis of this provision that
Parliament enacted the Environment and Land Court Act.
5. Article 162(3) required no more than a literal interpretation. It empowered
Parliament to determine the jurisdiction and functions of the Environment and
Land Court. For one to determine whether the Environment and Land Court had
exclusive jurisdiction to hear and determine matters related to the environment
and land, one had to turn to the provisions of the Environment and Land Court
Act to determine what jurisdiction Parliament granted the court as stipulated by
article 162(3) of the Constitution.
6. One of the canons of statutory interpretation was that provisions of a statute ought
to be read as a whole in order to ascertain the intention of the Legislature. Further,
words used in a particular provision could be used to clarify the meaning of the
words of phrases used in the same context in other provisions within the Act. In
that context, looking at section 13(1) of the Environment and Land Court Act it
was clear that Parliament did not intend that the Environment and Land Court
should have exclusive jurisdiction to hear and determine matters related to the
environment and land. That section provided that;
“the Court shall have original and appellate jurisdiction to hear and determine
all disputes in accordance with article 162(2) (b) of the Constitution and with
the provisions of this Act or any other law applicable in Kenya.”
7. The simple and plain meaning of section 13(1) of the Environment and Land
Court Act was that the Environment and Land Court had appellate jurisdiction
and the question then was, where and how could the Environment and Land
Court exercise that appellate jurisdiction? Section 13(4) of the Act provided that;
“In addition to the matters referred to in subsections (1) and (2), the Court
shall exercise appellate jurisdiction over the decisions of subordinate courts
or local tribunals in respect of matters falling within the jurisdiction of the
Court.”
Under article 169(1) of the Constitution, subordinate courts included inter alia
the Magistrates’ Courts. It therefore followed that the Magistrates’ Courts had
jurisdiction to determine matters falling within the jurisdiction of the Environment
and Land Court Act and their decisions would be subject to appeals preferred to
the Land and Environment Court.
8. The Constitution had not mandated the Chief Justice to determine jurisdiction
of courts established under article 162(2) because that action had been left to the
exclusive mandate of Parliament. The Chief Justice had however performed his
function as stipulated by section 24(2) of the Environment and Land Court Act
which had conferred jurisdiction on him to make rules to regulate the practice
and procedure in tribunals and subordinate courts for matters related to land and
the environment. He had acted within the law and any complaint to the contrary
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was misguided.
9. Sections 2 and 5 of the Judicial Service Act which provided for the functions of
the Chief Justice, gave him powers to exercise general control over the Judiciary
and that included powers to issue practice directions in control of the running of
Courts.
10. The Chief Justice had not violated the Constitution or acted unconstitutionally by
issuing the Gazette Notice which was a practice direction on proceedings relating
to the environment and land. He was performing his duties as stipulated under
the Environment and Land Court Act and in furtherance of his duties under the
Judicial Service Act. There were no inconsistencies between the Constitution and
the Environment and Land Court Act.
The Practice Directions on Proceedings in the Environment and Land Courts,
and on proceedings relating to the Environment and the Use and Occupation of,
and Title to Land and Proceedings in other Courts - 2014 retained the jurisdiction
of courts to determine land matters and states as follows:
8. Magistrates Courts shall continue to hear and determine all cases relating to the
environment and the use and occupation of, and title to land (whether pending or
new) in which the courts have the requisite pecuniary jurisdiction. All proceedings
which were pending before the Magistrates Court, having been transferred thereto
from the now defunct District Land Disputes Tribunals, shall continue to be heard
and determined by the same courts.’’
A contrary view on the jurisdiction of magistrates to determine land matters
was addressed in the case of Kibwana Ali Karisa & another v Said Hamisi Mohamed
and 3 others.193 This case goes counter to the holding of Justice Lenaola in the
case of Edward Mwaniki Gatura discussed above. The court held that the practice
directions by the Chief Justice could not confer jurisdiction on Magistrates where
such jurisdiction has been ousted by statute.

Facts
On 16 July 2014, the petitioners filed a petition dated 11 July 2014 alleging that the
Principal Magistrate’s Court, Kilifi, acted ultra vires and in excess of its jurisdiction in
entertaining CMCC No. 544 of 2010 when the matter should have been heard by the
Environment and Land Court.
The 4th respondent filed a Notice of Preliminary Objection in which he averred,
inter alia, that the Magistrate’s court had and still have the requisite jurisdiction to
hear and determine matters involving land before them by virtue of Gazette Notice
No.16268 of 9 November 2012.
In a judgment delivered on 13 March 2015, Justice O. A. Angote sitting in Malindi
held as follows:
“On 9 November 2012, the Chief Justice, published “Practice Directions on Proceedings
Relating to the Environment and the use and occupation of title to land” in gazette notice
number 16268.
23. Rule 7 of those directions provides as follows:
“Magistrates Courts’ shall continue to hear and determine all cases relating to the
environment and the use and occupation of, and title to land (whether pending or
new) in which the courts have the requisite pecuniary jurisdiction.”

193 [2015] eKLR

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216 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

24. The said Rule was reproduced verbatim in the subsequent Practice Directions
that were issued by the Chief Justice in gazette notice number 5178 of 28 July
2014.
25. The direction by the Chief Justice “clarifying” the jurisdiction of the Magistrates
Courts in handling disputes relating to the Environment and Land was informed
by the provisions of section 13(1) of the Environment and Land Court Act which
provides that the Environment and Land Court shall have original and appellate
jurisdiction to hear and determine all disputes in accordance with article 162(2(b)
of the Constitution.
26. To that extent, I shall agree with the pronouncement of Lenaola J (sic)in NRB
Petition No. 72 of 2013, Edward Mwaniki Gatura and another v the AG & two others.
The learned Judge held as follows:
“It therefore follows, that the Magistrate’s Courts have jurisdiction to
determine matters falling within the Jurisdiction of the Environment and
Land Court Act and their decision will be subject to appeals preferred to
the Land and Environment Court......sadly therefore I do not think that the
applicants can sustain the argument that the Environment and Land Court has
exclusive jurisdiction to hear and determine disputes, actions and proceedings
concerning land and the environment because the law does not bar them out.”
27. However, I hasten to add that the Magistrates Courts have jurisdiction to
determine disputes relating to land pursuant to the provisions of the Magistrate’s
Act and Rule 7 of the Practice Directions only to matters relating to unregistered
land, and not land registered under the repealed Registered Land Act, Registration
of Titles Act, and currently the Land Act, the Land Registration Act, and the Land
Acquisition Act.
28. The jurisdiction of the subordinate courts in relation to disputes relating to land
registered under the repealed Registered Land Act, pursuant to section 159, is
land whose value does not exceed KShs 500,000.
29. Once the value of the land registered under the RLA (repealed) exceeds KShs.
500,000, the Magistrate Courts would not have jurisdiction to deal with any civil
suit relating to the title to or the possession of land, or to the title to a lease or
charge, registered under the Act notwithstanding the provisions of the Magistrate’s
Court Act, section 13(1) of the Environment and Land Court Act and the Practice
Directions of the Chief Justice.
30. In respect to parcels of land registered under the Registration of Titles Act
(repealed), the Land Act and the Land Registration Act, 2012, it is only the
Environment and Land Court that can deal with disputes relating to the use,
occupation of and title to such land, the value of such land notwithstanding.
31. I say so because the Registration of Titles Act has defined “the court” to mean the
“High Court” while the Land Registration Act, 2012 has defined “the court” to
mean “the Environment and Land Court as established under the Environment
and Land Court Act, 2011”.
32. The same argument is applicable to suits that are filed pursuant to the provisions of
the Land Act and the Land Acquisition Act which have defined the court to mean
the “High Court” and the “Environment and Land Court” respectively.
33. Consequently, the practice directions by the Chief Justice in the Kenya gazette
of November 2012 and 25 July 2014 conferring on the Magistrates jurisdiction
to hear and determine all cases relating to the environment and the use and
occupation of, and title of land in which they have the requisite pecuniary
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 217

jurisdiction is limited in the terms I have enumerated above. That jurisdiction is

only limited to unregistered parcels of land, and in case of land registered under
the repealed Registered Land Act, to land whose value does not exceed KShs
500,000. The practice directions by the Chief Justice cannot confer jurisdiction
on Magistrates where such jurisdiction has been ousted by statute.’’

3.5 Which Court has Jurisdiction when the Statutory Power of

Sale by A Bank is Being Challenged?
The Practice Direction of 1997 classified what are commercial matters. The courts
have since been guided by the directions especially in all proceedings in which an
injunction is sought to restrain the realization of securities whether debentures or
charges. Simply because land is involved when property is offered as security to a
financial institution, does it automatically mean that only the ELC court should have
exclusive jurisdiction?
This paradox was addressed in the case of Kisimani Holdings Limited and another v
Fidelity Bank Limited.194 The defendant advanced a term loan facility to the borrower
which was secured by a legal charge over property owned by the guarantor.
Justice Havelock (retired) addressed the jurisdiction of the High Court to hear
matters affecting properties offered as securities. He held as follows:
“The plaint raises other issues other than whether the defendant Bank’s statutory power of
sale has arisen as regards the suit property such as interest rates applicable to the banking
transaction, the extent of the 1st plaintiff ’s liability to the defendant Bank as guarantor, as
well as to the amount necessary to be found by the plaintiffs to redeem the suit property.
All these matters related to the tripartite contract as between the parties evidenced by the
offer and acceptance of the defendant Bank’s facility letter of offer dated 13 January 2011.
In my view, the charging of the 1st plaintiff ’s property as security is a secondary issue to the
main cause of action being the banking transaction to which I have referred. As a result, I
do not consider that the suit before Court is a dispute relating to land. Article 165(5)(b) of
the Constitution to which the defendant Bank refers in its submissions reads that the High
Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the
courts contemplated in article 162(2) of the Constitution. Article 162(2) reads as follows:
“(2) Parliament shall establish courts with the status of the High Court to hear and
determine disputes relating to –
a) employment and Labour relations; and
b) the environment and the use and occupation of, and title to, land.”
With all due respect to the learned Counsel for the defendant Bank, I do not consider that
the suit before this Court involved a dispute as regards to the environment, the use, or the
occupation of and title to the suit property. As I see it, the suit property being offered by
way of security to the defendant Bank for the loan facilities availed to the 2nd plaintiff, the
same became a commodity which the chargee, the defendant Bank, could sell off in order
to recover monies lent to the 2nd plaintiff. To this end, I adopt the finding of Ochieng J. in
the Andrew Wanjohi case (supra) when he stated:
“By offering the suit property as security the chargor was equating it to a
commodity which the chargee may dispose of, so as to recover his loan together
with the interest thereon.”

194 [2013] eKLR

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218 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

3.6 Courts can Share Concurrent Jurisdiction in Matters Over

Land
Land is the common denominator in disputes before various High Court divisions
and the ELC Court as well.
In the case of Jane Wambui Ngeru v Timothy Mwangi Ngeru,195 The plaintiff submitted
that this matter falls within the jurisdiction of this Court as provided by section 13 of
the Environment and Land Court Act, and article 162 of the Constitution. Further,
that the issue at hand is one of ownership and use of the suit property, and not about
whether the same is matrimonial property.
The court held as follows:
“It is however notable in this regard that this Court shares concurrent jurisdiction with
the High Court in certain matters relating to land, and these matters have been described
in the Practice Directions On Proceedings in the Environment and Land Courts, and on
Proceedings Relating to the Environment and the Use and Occupation of, and Title to
Land and Proceedings in other Courts dated 25 July 2014 and published in Gazette Notice
No. 5178 as cases touching on inheritance, succession and distribution of land under the
Law of Succession Act. These cases shall continue to be filed and heard by the High Court
or the Magistrates Courts of competent jurisdiction.
In addition, if rights to matrimonial property are in dispute, section 17 of the Matrimonial
Property Act of 2013 provides as follows:
“(1) A person may apply to a court for a declaration of rights to any property that is
contested between that person and a spouse or a former spouse of the person.
(2) An application under subsection (1)—
(a) shall be made in accordance with such procedure as may be prescribed;
(b) may be made as part of a petition in a matrimonial cause; and
(c) may be made notwithstanding that a petition has not been filed under any
law relating to matrimonial causes.”
No particular Court is identified by the Act, and can therefore be any Court that has been given
jurisdiction to hear matrimonial disputes.The High Court is in this regard granted original and
unlimited jurisdiction in civil matters by the Constitution under article 165(3). The Marriage
Act of 2014 in addition provides that the courts that will hear matrimonial causes arising
under the Act are resident magistrate’s courts and within the limits provided under the law as
to their jurisdiction.
It is thus the current legal position that concurrent jurisdiction is given to various
courts to hear disputes relating to matrimonial property rights including this Court.
The only limitation applicable to this Court is that it can only hear such disputes if
they involve or relate to land.

3.7 Shareholder’s Dispute Over Company That Owns Land

In the case of Karangi Coftea Ltd v Philomena Ndanga and another,196 one party argued
that as shareholder’s dispute related to land owned by company, the matter should be

195 [2015] eKLR

196 [2015] eKLR
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 219

transferred to the ELC division from the commercial and admiralty division. Justice
Amin refused to transfer the matter and determined as follows:
“24. The jurisdiction of the Commercial Division of the High Court extends to the
following matters set out in Practice Directions since 1997. It shall be deemed to
be Commercial matters, suitable for trial by the Commercial Division of the High
Court situated in New Milimani Commercial Courts, Upper Hill Nairobi.
All proceedings in which an injunction including winding-up, excluding cases in
which a Company is suing or is being sued as an entity.
All Company matters and applications including winding-up, excluding cases in
which a Company is suing or is being sued as an entity.
All Bankruptcy matters.
All matters relating to arbitration other than enforcement of awards, excluding any
matter relating to land affected by the Land Control Board.
All intellectual property matters.
All claims for the recovery of unsecured debts (but including claims against
guarantors) due to a bank or other financial institution in which a Defence is
filed. On the filing of the Defence the matter to be automatically transferred to
the Commercial Court.
Such matters as are certified by a Judge of the Commercial Court as being
suitable for determination in the Commercial Court having regard to the amount
involved, the need for a speedy hearing and the nature of the case. It was felt
that in considering the nature of the case the Judge could be guided by wording
similar to the definition of a commercial action in the English Order 72, rule 1(1),
namely: “arising out of the ordinary transactions of merchants and traders and
without prejudice to the generality of the foregoing words, any cause relating to
the construction of a mercantile document, the export or import of merchandise,
affreightment, insurance, banking mercantile agency and mercantile usage”.
25. Despite being invited to do so by the Court Miss Wambua was not able to point
out any limits on the jurisdiction. I also asked Miss Wambua to address the court
on how the matter should proceed where two courts had concurrent jurisdiction.
She argued for transfer.
26. In the circumstances and for reasons set out above, I consider that this is an
appropriate matter for the Commercial Division and that it has jurisdiction. I
also consider that as the underlying dispute involves members of one family, it is
preferable and desirable that it is dealt with quickly and efficiently to avoid further
deterioration in that relationship. For that additional reason the Commercial
Division is the preferred venue.’’

3.8 Issuance of Status Quo Orders

Caution must be exercised when issuing a status quo order to avoid confusion regarding
the actual status on the ground. Failure to do so will result in applications being filed
for contempt or clarification especially if the rights of third parties are affected. For
instance, the property may have been sold to a third party who is being financed. This
has serious ramifications and consequences.
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220 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In the case of Thugi River Estate Limited and another v National Bank of Kenya
Limited and others197the Environment and Land Court considered the position of status
quo orders in land matters a per the practice directions. It held as follows:
“As was held by the Court of Appeal in the case of Mugah v Kunga [1988] KLR 748,
in land matters status quo orders should always be issued for purposes of preserving the
subject matter. This court’s practice directions vide Gazette Notice No. 5178/2014 have
followed suit. Practice direction No. 28(k) is relatively clear. It gives the court the leeway
and discretion to make an order for status quo to be maintained until determination of
the case. I however take note that the Gazette Notice was issued before this court’s 16 July
2014 decision. The end result is that status quo orders will issue not just when the court
is prompted by way of formal applications for injunction or conservatory or stay orders:
see Texaco Ltd v Mulbery Ltd [1972]1 WLR 814, but also when the court is of the view that
as a case management strategy it would be more proportionate and appropriate without
prejudicing one party but both, to issue a “status quo” order.’’

3.9 Analysis of the Practice Directions Issued in 2014 and 2015

A good starting point would be to examine the salient points introduced by the
following practice directions which are attached in the Schedules at the end of the
paper.
1. Practice Directions on Proceedings in the Environment and Land Courts, and
on proceedings relating to the Environment and the Use and Occupation of, and
Title to Land and Proceedings in other Courts-2014. [Schedule A].
2. Practice Directions relating to Case Management in the Commercial and
Admiralty Division of the High Court at Nairobi-2014. [Schedule B].
3. Court of Appeal Practice Direction - Civil Appeals and Applications-2015.
[Schedule C].
The commonality in the three practice directions is the emphasis on case management.
As regards the case management request and check-list for the Practice Directions
of the Commercial and Admiralty Division of the High Court in Nairobi, this can be
downloaded from the LSK website in word format of Kenya Law Reports.

3.10 Challenges in Implementing the Practice Directions

The biggest frustration in implementing the land court and commercial division
Practice Directions is lack of knowledge of the very existence of the directions. The
following are some of the challenges:
1. Failure to meet the timelines to file documents.
2. Preparing bundle of documents without proper referencing and including illegible
documents.
3. Not properly paginating the bundle of documents.
4. Not binding the documents leading to loss of documents.
5. The other party reproducing common bundle of documents that have already
been filed.
6. Inadequate preparation in compiling the bundle of documents.
7. Filing shallow witness statements.

197 [2015] eKLR

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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 221

8. Witness statements that make no reference to the specific pages in the bundle of
documents.
9. Inelegant drafting of skeletal submissions.
10. Improper highlighting of legal authorities.
11. Failure to understand the issues arising from the pleadings. This leads to repetitive
and unnecessary issues being filed.
The Court of Appeal Practice Directions are relatively new but they do address the
procedural aspects in the preparation of the Record of Appeal. This will be discussed
below.

3.11 Court of Appeal Directions on Submissions

The Court of Appeal Practice Directions have now set out the concise manner in
preparing written submissions.
The summary is as follows and it is recommended that this style be adopted when
filing submissions in all courts:
1. Skeleton submissions are a succinct statement of:
(a) what the hearing is about.
(b) the background to the hearing.
(c) chronologies
(d) the issues for determination.
(e) what you want the court to decide and why.
(f) an outline of the submissions in numbered brief points cross-referenced to
the evidence in the Record of Appeal and supported by the authorities citing
the proposition of law relied on and the authority in support with reference
to the page or paragraph.
2. If written submissions are ordered:
(a) the timetable for the filing and serving of such written submissions.
(b) the length of such submissions.
(c) the time which will be allocated at the hearing for oral highlighting.

3.11.1 Written Submissions:

a. Written submissions should be typed or printed using 1.5 spacing and a font of at
least 12 points.
b. Written submissions must:
i. Contain a chronology of relevant events including any previous court history.
ii. Refer to the grounds of appeal being argued and indicate if any grounds are
being abandoned or argued together.
iii. Identify any error or errors said to have been made by the Court appealed
from and the basis in principle or authority for that contention.
iv. Where it is contended that a finding of fact should have been made or that a
finding of fact which was made should not have been made, the basis for that
contention should be set out by reference to the evidence.
v. Be set out in numbered paragraphs.
vi. Be cross-referenced to the relevant pages and passages in the Record of
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222 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Appeal.
vii. Not include extensive quotations from documents or authorities.

3.11.2 At the Case Management Conference

The Court of Appeal has power to limit the length of written submissions and will
normally exercise such power.
To enable advocates to clearly set out their submissions with headings and
numbered paragraphs the court will normally limit the length by reference to word
count. As a guide, a page of text is approximately 500 words.
The party filing such written submissions limited by word count shall include a
certificate as to the number of words at the end of the submissions.
In addition to the hard copies of written submissions required a softcopy in PDF
or MS Word should be brought to the Registry on a flash disk.The Registry will copy
the written submissions on to the registry computer and return the flash disk to the
party filing the written submissions.

3.11.3 Authorities
Authorities may be bound or placed in a folder with a copy of the List of Authorities
at the top.
The List of Authorities shall contain a summarised analysis of each authority
specifying the ratio decidendi, relevance and applicability to the application or appeal.
Parties are encouraged to highlight the passages they wish to rely on by marking
the right hand margin.198 If such highlighting is done, then the highlighting must
appear on all copies including the copies served on the other parties.

3.11.4 Costs Sanctions May Be Imposed For Lengthy Submissions

Brevity is admired by the courts. Consider the simplicity of the English words of
“Yes’’ and “No.’’ After all, either of these words answer the issue at hand. If the court
imposes a limitation on the number of pages, then do respect the imposition. You may
face cost sanctions if you exceed the imposition or worse still have the extra pages
plucked out!
The Court of Appeal in England in the case of Standard Bank PLC v Via Mat
International Ltd199 proceeded to given an exposition about the length of submissions
and deplored the practice of advocates who in a simple summary judgment application
produced skeleton arguments that ran to a total of 116 pages. The judges held:
Lord Justice Moore-Bick:
25. Before leaving this matter I wish to say something about the skeleton arguments
in this case. Although there were two applications before the judge, they were
complementary and in substance this was a relatively straightforward application
for summary judgment. The hearing before the judge was completed within a
day, as was the hearing of the appeal and although a large amount of evidence

198 The judges request that advocates do not highlight the text as this often makes the text hard to read.
199 [2013] EWCA Civ 490
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 223

was filed, it proved possible as a result of co-operation between the parties to

produce a single core bundle of moderate length which included all the important
documents. In those circumstances it is a matter of concern that the skeleton
arguments produced for the appeal run to a total of 116 pages, of which by
far the greater part (93 pages in all) is made up of the appellant’s skeleton and
supplementary skeleton arguments.
26. In the opening paragraphs of his judgment in Khader v Aziz [2010] EWCA Civ
716, [2010] 1 W.L.R. 2673 Sir Anthony May PQBD sounded a clear warning
about the risks to our tradition of oral advocacy posed by excessively long skeleton
arguments. He did so following complaints of a similar nature voiced by the
members of this court in Tombstone Limited v Raja [2008] EWCA Civ 1444,[2009]
1 WLR 1143 and Midgulf International Limited v Groupe Chimique Tunisien [2010]
EWCA Civ 66, [2010] 2 Lloyd’s Rep. 543. I expressly associated myself with the
President’s remarks, pointing out that the purpose of skeleton arguments is to
inform the court of the essential elements of the parties’ submissions and thereby
enable it to understand the issues and arguments arising on the appeal. I also
expressed the view that the best way in which to alleviate the increasingly onerous
burden imposed by unduly long and complex skeleton arguments is for the court
to be far more willing than it has been in the past to disallow all or part of the costs
of any skeleton that fails to serve that essential purpose.
27. It is important that both practitioners and their clients understand that skeleton
arguments are not intended to serve as vehicles for extended advocacy and that in
general a short, concise skeleton is both more helpful to the court and more likely
to be persuasive than a longer document which seeks to develop every point which
the advocate would wish to make in oral argument. In this context I wish to draw
attention to the provisions of Practice Directions 52A and 52C, both of which
apply to proceedings in this court. Each of those Practice Directions contains
important provisions relating to the nature and content of skeleton arguments.
Practice Direction 52C, in particular, contains specific provisions governing their
length and presentation. The court will expect the requirements of both Practice
Directions to be rigorously observed. Failure to comply with them is likely to be
penalised in costs.
Lord Justice Aikens:
28. I agree. Although we are differing from the learned Judge, there is no point in my
simply repeating, in different words, the reasoning and conclusions that Moore-
Bick, LJ has reached with which I am in total agreement, so, without intending
any disrespect, I will not add anything further on the substance of the appeal.
29. would, however, like specifically to endorse all Moore-Bick, LJ has said in
his postscript. Overlong pleadings and written submissions – the true “skeleton
argument” of bye-gone days no longer exists – which are manufactured by parties
and their lawyers have become the bane of commercial litigation in England and
Wales. This prolixity only adds unnecessary costs; it does nothing to clarify and
simplify the issues or to shorten proceedings, which aims should be the objectives
of both pleadings and written submissions. I recognise that this is not a new
problem. In a reported case, Mylward v Weldon (1596) Tothill 102, 21 ER 136,
[1595] ECHR Ch. 1, it is stated that in 1595 the son of a litigant (the report does
not say whether the miscreant was a barrister) produced a pleading (a replication,
i.e. reply) of “six score sheets of paper” which the Lord Keeper deemed could have
been “well contrived” in 16 sheets. The Lord Keeper (Egerton) ordered that the
miscreant be imprisoned in the Fleet until he paid a fine of £10 (a huge sum) to
Her Majesty and 20 nobles to the defendant. In addition, the Lord Keeper ordered:
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224 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

“…that the Warden of the Fleet shall take the said Richard Mylward…and
shall bring him into Westminster Hall on Saturday next, about ten of the
clock in the forenoon and then and there shall cut a hole in the myddest of
the same engrossed replication…and put the said Richard’s head through
the same hole and so let the same replication hang about his shoulders with
the written side outward; and then, the same so hanging, shall lead the same
Richard, bare headed and bare faced, round about Westminster Hall, whilst
the Courts are sitting and shall shew him at the bar of every of the three
Courts within the Hall and shall then take him back to the Fleet….”
30. That sanction against prolix pleaders and submission authors may not be available
today, but failure to comply with the letter of the Practice Direction on written
submissions and the failure to heed the need for brevity in pleadings may well lead
to strict adverse costs orders.’’

3.12 Cases on Incivility in Submissions and Pleadings

The issue of incivility has been addressed in the Canadian case of Groia v The Law
Society of Upper Canada.200 In this case, Toronto lawyer Joseph Groia was convicted
for incivility on the basis of submissions made in court on behalf of his client. This is
an excellent case on civility and decorum and extensive citations will be relied upon
as follows [see pages 24 to 51 of authority attached to the submission] [Note: sub-
headings have been added for ease of reference]:
On Aggressiveness and civility [see page 28 to 29]
“[23] The first issue raised by this appeal is the role, if any, that the respondent has to
investigate and regulate the conduct of lawyers within the courtroom. It raises an
important issue, at least in part, because there has been increasing concern over
the last number of years that the conduct of lawyers is becoming less and less civil
– both inside and outside the courtroom. This concern has led to many initiatives
directed at reinforcing in the minds of all lawyers the need for civility in their
dealings with each other, with the courts, and with the public. For example, in
2001, The Advocates’ Society (which is an intervener in this case) published The
Principles of Civility for Advocates, which was revised and reissued in 2009.
[24] It is not clear where this increase in incivility comes from. Perhaps it is a result
of demands by clients who, completely unfamiliar with what actually constitutes
effective advocacy, believe that an aggressive lawyer is an effective lawyer. The
more aggressive, the more effective. Given the competition for business, a lawyer
may not wish to demonstrate a lack of aggressiveness for fear that such clients will
prefer to entrust their matter to other lawyers who mirror the client’s perception
of the effective advocate. Perhaps it is also the result of the frequent image of
lawyers in television shows, and in other media, where actors portray lawyers in a
particular fashion unrestrained by any need to represent reality and without any
concern for the reputation of the legal system. Good advocacy often does not
make good television.
[25] Regardless of the genesis of the concern, there is no doubt that it exists. It thus
becomes a necessary element, of instilling the need for civility in lawyers, for there
to be consequences to the lawyer who does not conduct himself or herself in a
professional manner. Put simply, while there is an ongoing need for the carrot of
both education and peer pressure to promote civility within the legal profession,
there will also be the occasional need for the use of a stick.

200 2015 ONSC 686.

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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 225

Conduct that engages the incivility concern begins with conduct that is rude,
unnecessary abrasive, sarcastic, demeaning, abusive or any like quality [see
page 37]
[73] I start with the principle that a lawyer’s conduct must first be uncivil to invoke
the disciplinary process. Zealous advocacy, including the use of language that
may be very tough in its expression, is not, by itself, sufficient to open the door
to professional misconduct proceedings. Words that are passionate, or the effect
of which may sting, may often be necessary to make the required point, or to
persuade the adjudicator towards a certain view. It would be contrary to the
recognized role of an advocate to formulate a rule that does not recognize that
central reality.
[74] Rather, the conduct that engages the incivility concern begins with conduct that
it is rude, unnecessarily abrasive, sarcastic, demeaning, abusive or of any like quality.
It is conduct that attacks the personal integrity of opponents, parties, witnesses
or of the court, where there is an absence of a good faith basis for the attack, or
the individual counsel has a good faith basis for the belief but that belief is not an
objectively reasonable one. In addition, single instances of such conduct will be
less likely to engage the misconduct concern as will repeated instances of the same
conduct. In other words, a solitary instance of uncivil conduct will not, generally
speaking, be sufficient to ground a complaint of professional misconduct, unless it
is of a particularly egregious form.
[75] In my view, however, there must be an additional element attached to the uncivil
conduct, in order for it to rise to the level of professional misconduct. For uncivil
conduct to rise to the level that would properly engage the disciplinary process, it
must be conduct that, in addition to being uncivil, will also bring the administration
of justice into dispute, or would have the tendency to do so. It is conduct that
calls into question the integrity of the court process and of the players involved
in it. It is conduct that risks bringing the administration of justice into disrepute
because it is conduct that strikes at the very qualities of what the justice system
represents. It is conduct that would make an impartial outside observer question
the central tenets upon which the justice system is based. It is the difference
between impassioned, but reasoned, disagreements and the uninformed, nasty,
personal tirades that too often mark the exchanges we see in political and media
exchanges on matters of public importance. It is the hallmark of professionalism
that both sides recognize that reasonable people can have strong, but legitimate,
disagreements without the need for either side to call into question the honour or
integrity of their opponent.
[76] It is, therefore, ultimately necessary for a finding of professional misconduct for
the uncivil conduct to have undermined, or to have had the realistic prospect
of undermining, the proper administration of justice. Many different kinds of
conduct may give rise to this effect. Such conduct will include, but is not limited
to, repeated personal attacks on one’s opponents or on the judge or adjudicator,
without a good faith basis or without an objectively reasonable basis; improper
efforts to forestall the ultimate completion of the matter at issue; actions designed
to wrongly impede counsel from the presentation of their case; and efforts to
needlessly drag the judge or adjudicator “into the fray” and thus imperil their
required impartiality, either in fact or in appearance. Of special concern is any
such conduct that could ultimately result in a decision that would amount to a
miscarriage of justice.
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226 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In-court conduct [see pages 41 to 42]-

[102] The second issue arises from particulars 3(1)(d) and 3(1)(f) that allege breaches
of rule 6.03(5) and rule 6.03(1) of the current Rules of Professional Conduct.
The appellant says that the respondent cannot rely on those rules for findings of
professional misconduct because, according to the appellant, those rules do not
apply to in-court conduct.
[103] Rule 6.03(1) reads:
A lawyer shall be courteous, civil, and act in good faith with all persons with
whom the lawyer has dealings in the course of his or her practice.
Rule 6.03(5) reads:
A lawyer shall not in the course of professional practice send correspondence or otherwise
communicate to a client, another legal practitioner, or any other person in a manner
that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional
communication from a lawyer.
[104] I do not accept the appellant’s assertion that these two rules do not apply to in-
court conduct. There is nothing in the wording of either of these rules that so
restricts their application. Rule 6.03(1) refers to “all persons” with whom the
lawyer has dealings “in the course” of his practice. The conduct of the appellant
during the course of Phase One of the trial was directed towards the prosecutors
and it was part of the appellant’s practice as trial counsel. I do not see any reason
to interpret the rule other than in accordance with using the words in their
grammatical and ordinary sense: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R.
27 at para. 21. The fact that the accusations that the appellant made about the
conduct of the prosecutors were technically made to the presiding judge, and
not directly to the prosecutors, does not change either the result or the effect.
A person can be discourteous and uncivil towards another person both directly
and indirectly. In this case, there was no doubt as to who was the target of the
appellant’s accusations.’’
In Hashim Mohamed Kher and another v Gulf African Bank Limited,201 Justice Ochieng
castigated an advocate whose submissions and pleadings were laced with insults. The
advocate in the present appeal had complained to the judge about the lack of civility
by the plaintiff ’s advocate. The judge held [see page 52 at 56]:
“47. Before concluding this ruling, I deem it necessary to make one more point; the
point relates to the language applied, in part, by the learned advocate for the
plaintiffs.
48. In his submissions, he describes the replying affidavit as;
“woefully lacking in cogency and seemingly preposterous”.
49. He goes on to state as follows;
“(vii) The reliance placed upon clause 4.1.21.1 and clause 4.1.21.6 of the
Mortgage dated 29 July 2011 is infantile in the least and on the whole
amounts to provocative daylight robbery...”
50. The colourful language, is laced with insults. It adds no value to the case. Instead,
it gives rise to annoyance.
51. It is important, in my humble view, that each and every advocate should refrain
from use of unbecoming language.
52. Its one thing to argue your client’s case forcefully and with utmost vigour, but

201 [2015] eKLR

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quite another to allow oneself to apply language which derides any person, be it
the court, the other party or the advocate for the opposite party.
53. It is my sincere hope that henceforth, advocates will strive to treat themselves,
their colleagues, the parties and the court, with utmost respect, which includes the
use of language that is befitting members of the learned profession.’’

3.13 Cases can be Disposed of by Written Submissions

Prior to 2010’, a party had to seek leave of the court to file written submissions before
the Court of Appeal.With the advent of the Civil Procedure Rules in 2010, Order 51,
rule 16 empowered the court to limit the time for submissions. The court could in its
discretion allow parties to highlight orally or file written submissions.
Many courts now require advocates to send their written submissions in soft. It is
therefore important to ensure that the submissions are presentable and bring out the
salient points of facts and law.
Lawi Duda and 21 others v Bamburi Cement Company Ltd202 was an interesting case
involving an application for certificate to appeal to the Supreme Court of Kenya from
the ruling of the Court of Appeal at Malindi. The applicant argued that by limiting
a party in the length of written submissions, the party’s right to a fair hearing was
infringed.

Facts
The applicant’s advocate, when arguing the application, submitted that the intended
appeal raised matters of general public importance, which deserved to be addressed by
the Supreme Court. The advocate complained that when the parties appeared before
the Court of Appeal to argue the appeal he sought “not less than four hours” to argue
the appeal because it raised complex issues of employment law and discrimination,
with the record of appeal running into four volumes. Instead of acceding to his
wish, he complained that the Court asked him to argue the appeal in 30 minutes
or alternatively to prepare written submissions which he could highlight orally later.
He argued that he was denied a free hand with his written submissions because he
was restricted to 15 pages, double-spaced, font-12. He submitted that the directions
by the Court were a violation of the applicants’ right to a fair trial under article
50(1) of the Constitution. He submitted that determination of an appeal through
written submissions did not constitute a “hearing” which was conducted in “public”
as required by article 50(1).
The Court of Appeal sitting in Malindi on 30 October 2015 addressed the aspect
of written submission as follows and dismissed the applicant’s arguments that limiting
the written submissions was unconstitutional. The court held:
“But even if we were to be charitable to applicants, we do not see how an order that an
appeal be heard through written submissions or the setting of time for oral address by
counsel, can possibly constitute a violation of the right to fair hearing. This is because
article 159(2)(c) of the Constitution expressly recognises the principle that justice shall
not be delayed as one of the cardinal principles of judicial authority in Kenya. The order
on written submissions and the setting of time for address by counsel are in our view

202 [2015] eKLR

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228 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

legitimate devices for actualization of that important constitutional principle.

Apart from the constitutional underpinning, the Appellate Jurisdiction Act and the Rules
made thereunder vest in this Court sufficient power and authority to direct that appeals
be heard by written submissions and to set the time for oral address by parties and their
counsel. First section 3(2) of the Act confers upon this Court, when hearing an appeal,
in addition to any power, authority and jurisdiction, conferred by the Act such power,
authority and jurisdiction enjoyed by the High Court. That would include the powers
granted by Order 50, rule 16 regarding written submissions and setting of time. Secondly,
the overriding objective in sections 3A and 3B of the Act emphasizes efficient use of
available judicial resources, including time, and timely disposal of proceedings before the
Court. An order that an appeal be determined by written submissions or one setting time
for oral address cannot possibly be inconsistent with the above overriding objective.Thirdly,
rule 100 of the Rules of this Court as well as the Court of Appeal Practice Directions,
2015, make provision for hearing of appeals through written submissions. In particular,
the case management provisions of the Practice Directions make detailed and extensive
provisions on written submissions, including the power of the Court to direct that appeals
be heard by written submissions and the power to limit or otherwise determine the length
of any oral or written submissions. Lastly, rule 1(2) of the Rules of this Court reserve
for the Court inherent power to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court. Without such power, the Court
would be at the mercy of parties, who for whatever reason, feel that their interests are best
served by a full blown filibuster, despite the clear values spelt out in article 159(2) of the
Constitution and in the overriding objective. Clearly, learned Counsel for the applicants
has not considered those pertinent constitutional and statutory provisions.’’

3.14 Conclusion
Practice Directions must be read and understood by advocates. If advocates practise
what is required in the directions, then the cogs in the wheels of justice will run
smoothly and cases will be determined expeditiously.
The practice directions of the Environment and Land Court, Commercial and
Admiralty Court sitting in Nairobi and the Court of Appeal are set out in the following
Schedules as a quick reference guide.
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 229

Schedule A
Gazette Notice No. 5178
The Constitution of Kenya
The Environment and Land Court Act
(No. 19 of 2011)

Practice Directions on Proceedings in the Environment and Land

Courts, and on Proceedings Relating to the Environment and the Use
and Occupation of, and Title To Land and Proceedings in Other Courts

In exercise of the powers conferred by the Sixth Schedule Part 5 section 22 and article
161(2)(a) of the Constitution of Kenya 2010, and in pursuance of section 24, sections
30 (1) and (2) of the Environment and Land Court Act (No. 19 of 2011) of the Laws
of Kenya as read with section 31 of the Act and section 5(1) and 2(c) of the Judicial
Service Act (No. 1 of 2011), the Chief Justice makes the following practice directions
following the establishment of the Environment and Land Courts.
The Overriding Objective of Proceedings in the Environment and Land Court
1. In the exercise of its authority and Jurisdiction, the Environment and Land Court
shall at all stages of any trial be guided by article 159 of the Constitution, sections
1A and 1B of the Civil Procedure Act and section 3 of the Environment and Land
Court Act No. 19, 2011 so as to facilitate:
(a) Just;
(b) Expeditious;
(c) Proportionate; and
(d) Accessible resolution of disputes.

Jurisdiction in Matters Relating to the Environment and the Use and Occupation
of, and Title to Land
2. All proceedings relating to the environment and the use and occupation of, and
title to land pending before the Court of Appeal shall continue to be heard and
determined by the same court.
3. All pending judgments and rulings relating to the environment and the use and
occupation of, and title to land pending before the High Court shall be delivered
by the same court.
4. All part-heard cases relating to the environment and the use and occupation of,
and title to land pending before the High Court shall continue to be heard and
determined by the same court.
5. All cases relating to the environment and the use and occupation of, and title to
land which have hitherto been filed at the High Court and where hearing in
relation thereto are yet to commence shall be transferred to the Environment and
Land Court as directed by a judge.
6. All cases touching on inheritance, succession and distribution of land under the
Law of Succession Act, Chapter 160, Laws of Kenya shall continue to be filed and
heard by the High Court or the Magistrates Courts of competent jurisdiction.
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230 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

7. All proceedings which were pending before the Magistrates Court, having been
transferred thereto from the now defunct District Land Disputes Tribunals, shall
continue to be heard and determined by the same courts.
8. Magistrates Courts shall continue to hear and determine all cases relating to the
environment and the use and occupation of, and title to land (whether pending or
new) in which the courts have the requisite pecuniary jurisdiction. All proceedings
which were pending before the Magistrates Court, having been transferred thereto
from the now defunct District Land Disputes Tribunals, shall continue to be heard
and determined by the same courts.
9. All cases under the Landlord and Tenants (Shops, Hotels & Catering Establishments)
Act, Chapter 301, Laws of Kenya shall continue to be filed in and determined by
the Business Premises Tribunal.
10. All cases under the Rent Restriction Act, Chapter 296, Laws of Kenya shall
continue to be filed in and determined by the Rent Tribunal.
11. All disputes under the Valuation of Rating Act, Chapter 266, Laws of Kenya shall
continue to be filed in and determined by the Resident Magistrates Courts of
competent jurisdiction.
12. The National Environment Tribunal shall continue to hear and determine
environmental matters in which the Tribunal has jurisdiction as conferred by the
Environment Management and Co-ordination Act, (No. 8 of 1999).
13. Appeals from the Magistrates Courts and Tribunals in the foregoing paragraphs 6
to 12 shall lie in the Environment and Land Court pursuant to section 13(4) of
the Environment and Land Court Act.
14. All new cases relating to the environment and the use and occupation of, and
title to land not falling under paragraph 8 above shall be filed in the nearest
Environment and Land Court for hearing and determination by the said court and
must be within the purview of the jurisdiction conferred upon the Environment
and Land Court with particular regard to the jurisdictional limitations set under
article 162(2)(b) of the Constitution and section 13 of the Environment and Land
Court Act No. 19, 2011.
15. Where a matter has been wrongly filed at the Environment and Land Court
Registry, the practice directions notably: Practice Directions Relating to the
Filing of Suits, Applications and References in Proper Court (Gazette Notice
No. 1756/2009) shall apply, and the matter shall be directed for filing in the
appropriate court(s) in tandem with those practice directions.

Filing of Pleadings, Witness Statements, and Documents

16. Parties are enjoined to comply with the requirements, time limits and deadlines
when filing Pleadings, Witness Statements, and Documents as set out under the
Civil Procedure Rules, 2010. In particular:
(a) All appropriate pleadings and relevant forms must be filed in respect of
all cases. These shall include the Summons to Enter an Appearance, List
and Bundle of Documents and Witness Statements signed by witnesses.
As much as possible parties are enjoined in their pleadings to indicate the
value of the property in dispute.
(b) Summons to Enter an Appearance shall be signed by the Environment and
Land Court Deputy Registrar and released back to the parties within 24
hours of filing.
(c) Witness Statements shall contain sufficient details so that:
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 231

(i) The witness will adopt his/her statement as his/her evidence-in-

chief; and
(ii) Thereafter only minimal highlighting and production of documents
(in examination-in-chief) may be required before the witness can be
cross-examined.
(d) In cases where documents are sought to be produced and relied on, the
Bundle of Documents shall be chronologically arranged and sequentially
paginated. All copies of documents contained in the Bundle of Documents
must be clearly legible.
(e) As much as possible, Witness Statements shall make sequential reference
to the documents by their pages to make it easy for the court and other
parties to follow and to understand the case.
17. Applications under Order 49 of the Civil Procedure Rules, 2010 shall indicate
a large “R” on the top right-hand corner of the application for the ease of
allocations.
18. When filing any documents, parties must ensure the correct citation of the case,
the date the case is fixed for hearing (if a date has already been fixed) and the
correct names of the parties are given to facilitate easy retrieval of the court file
and appropriate filing.
19. All pleadings filed in court shall contain the postal address(es), the e-mail address(es)
and mobile telephone number(s) of either:
(a) The firm of advocates on record; or,
(b) The individual advocate handling the matter; or
(c) Where parties are not represented by an advocate, the postal, e-mail and
telephone contacts of the individual litigant.
The said postal, e-mail address(es) and mobile telephone number(s) shall
be appended at the end of each pleading/documents/submissions at the
‘Drawn & Filed by’ section.

Certificates of Urgency and Mentions

20. In all matters brought under certificate of urgency:
(a) The urgency must be self-evident in the certificate, or the grounds.
(b) The Judge shall have discretion to grant interim orders or give directions
in chambers on the basis of the pleadings and documents in support of the
same without hearing counsel or party in the matter.
(c) The Judge shall have discretion on whether to hear counsel or a party
orally at the ex-parte stage.
(d) In order to facilitate expeditious extraction of orders relating to urgent
applications, the applying advocate/party may prepare draft orders in soft
copies when coming to court. The Court will approve the draft with or
without amendments and have a fair one executed and sealed shortly after
grant of the orders sought.
21. In the absence of a Judge in the station, all interlocutory applications of an urgent
nature shall be placed before a Deputy Registrar in the station who will have the
discretion to grant interim orders pending the listing of the application before the
Judge for further directions/orders or hearing.
22. In ex-parte applications before the Judge/Deputy Registrar, discretion shall be
exercised to hear or not hear an advocate/party. However, the Judge or Deputy
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232 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Registrar in appropriate matters may require a party to address him/her on the

application before granting any orders. In such matters the Judge or Deputy
Registrar shall allocate a time or a very near date for the party to argue the
application.
23. As mentions of cases take a lot of valuable time for the matters scheduled for full
hearings or hearings of applications and submissions, the Judge shall discourage
mentions and only those matters that merit such mentions e.g. to record consents
and/or to take ruling/judgment dates upon filing submissions shall be granted.
24. Where a party seeks to mention a matter before a Judge/Deputy Registrar, a letter
shall be written to the Deputy Registrar clearly setting out the reasons for the
mention, and the Deputy Registrar shall exercise his/her discretion whether or
not to grant the mention, or give other appropriate directions.

Pre-Trial Directions
25. After the close of pleadings, there shall be full compliance with Order 11 of the
Civil Procedure Rules, 2010 regarding Pre-trial Directions and Conferences, and
parties shall write to the Deputy Registrar requesting that the matter be listed
for pre-trial directions and/or conferences. At this stage in order to expedite the
trial process preliminary issues can be resolved before a Case Manager/ Deputy
Registrar as the case may be.
26. The trial Judge shall determine the number of pre-trial conferences that may be
necessary depending on the nature of the case.
27. Once pre-trial directions are issued by a Judge, every party shall be bound to
adhere to the same. The Judge shall only grant a party one extension to comply,
failing which the Judge may direct the case be fixed for trial or may make other
appropriate orders as the circumstances of the matter may demand to enable the
ends of justice to be met.
28. In addition to the matters contained in Order 11, rule 3 of the Civil Procedure
Rules, 2010, the following are the orders/directions that may be issued by a Judge
during a pre-trial conference:
(a) The issuance of appropriate Orders and directions to ensure parties comply
and take pre-trial conferences seriously as they constitute a vital stage in
the overall case management and the efficient administration of justice.
(b) The issuance of an Order striking out pleadings or imposing costs or
similar sanctions due to non-compliance with pre-trial directions and
other timelines.
(c) The issuance of Directions on the number of conferences to be held before
trial.
(d) The issuance of summons for witnesses to attend court to testify and/or
produce documents, and for the filing of Witness Statements in respect of
such witnesses.
(e) The issuance of an Order requiring the filing of more comprehensive
Witness Statements.
(f) The issuance of an Order that the parties agree and narrow down issues for
trial.
(g) Taking of all objections to the production of specific documents, where
notice has been issued to the other party, thereafter, objections on the
production of any document shall not be entertained at the main hearing.
(h) The issuance of Directions that a matter shall be determined through filed
witness statement(s) and bundle of documents.
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 233

(i) Alternatively, the issuance of Directions to determine and fix the number
of witnesses to testify at the trial.
(j) The issuance of an Order that the matter to be referred for arbitration
or make such other orders for meditation and negotiation (as may be
appropriate in the circumstances of the case) to ensure the expeditious
disposal of the matter.
(k) Where appropriate, the issuance of conservatory orders or maintenance of
status quo until a matter is fully and finally determined.
(l) The Judge shall have the discretion to give any further orders and/or
directions as the ends of justice may require.
29. No hearing date shall be given at the registry until all pre-trial directions have
been given and complied with, and the Judge has certified the case as ready for
hearing during the said pre-trial hearing.
30. Call-overs in the Environment and Land Courts are hereby abolished.

Conduct of Hearings
31. Three days before any hearing, whether of an application or a full hearing, parties
must ensure all documents are properly filed and that proper service has been
effected.
32. During the inter-partes hearing of any interlocutory application, where appropriate,
parties are encouraged to agree to maintain status quo. If they cannot agree, after
considering the nature of the case or hearing both sides the Judge shall exercise
discretion to order for status quo pending the hearing and determination of the
suit bearing in mind the overriding interests of justice.
33. In order to expedite trial:
(a) The Judge shall encourage parties to proceed by way of written submissions
in regard to all interlocutory applications. Oral submissions shall be
permitted only in exceptional cases.
(b) Parties shall submit written submissions that summarize their argument,
and which do not exceed 10 pages (unless the Judge certifies the matter as
complex and parties are granted leave to file lengthy submissions owing to
the nature of the case). In all cases the submissions shall be paginated. Hard
copies of all cited cases must accompany the submissions.
(c) Where parties have filed written submissions and wish to highlight the
same, the Judge shall be at liberty to allocate and cap the time for every
party.
34. At the full trial, parties shall restrict themselves to the narrowed down issues for
determination as directed by the Judge during the pre-trial conference.
35. Where parties at any stage compromise a matter or intimate a settlement outside
court, they shall file consent signed by all parties in the matter settling the same. If
no settlement is reached, the matter shall be set down for hearing. In all cases, the
filed consent shall require the approval and adoption by the court.
36. To enable a Judge expedite delivery of rulings and judgments, parties are
encouraged to:
(a) Send to the court and the other parties in the suit (where parties have
furnished their mail address(es) soft copies (in Microsoft word or editable
PDF format) of their pleadings, affidavits and submissions and list of
authorities, using the court email address furnished for the purpose.
(b) In all such cases, the case number, the names of parties and the Judge
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234 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

dealing with the matter must be stated.

Cause Lists
37. The cause list shall be prepared by the presiding Environment and Land Court
Judge weekly in advance and posted on the internet by 1.00 p.m. every Friday.
Additions may be done by way of a supplementary cause list. There will, however,
be a cause list generated for each day denoting what cases are before which Judge
or Deputy Registrar.
Alternative Dispute Resolution
38. In the interest of avoiding unnecessary costs and delay, the Court may on its own
motion or with the agreement or request of the parties direct that the dispute
be resolved by the appropriate Alternative Dispute Resolution mechanism
including conciliation, mediation, arbitration and traditional dispute resolution
mechanisms in accordance with article 159 of the Constitution and section 20 of
the Environment and Land Court Act, 2011.
39. The Court when referring any dispute to mediation shall apply Sections 59 B to
59 D of the Civil Procedure Act.

Appeals from Subordinate Courts and Local Tribunals

40. All appeals from subordinate courts and local tribunals shall be filed within a
period of thirty days from the date of the decree or order appealed against in
matters in respect of disputes following within the jurisdiction set out in section
13(2) of the Environment and Land Court Act, 2011.
41. The court shall adopt and apply Part VIII of the Civil Procedure Act and Order
42 of the Civil Procedure Rules in determining appeals within the jurisdiction set
out in section 13(2) of the Environment and Land Court Act, 2011.
42. All appeals shall be in form of a Record of Appeal that shall include the following:
(a) An index of all documents in the record with the number of pages at
which they appear.
(b) The Memorandum of Appeal and all documents required under Order 42,
rule 13 of the Civil Procedure Rules.
(c) Copies of all documents shall be legible and every page numbered at the
foot of the page so as to leave the top right hand corner for numbering of
any Record of Appeal to the Court of Appeal. The numbering should be
legible on all copies of the bundle.
(d) Parties are encouraged to use a numbering machine for consistency a (sic)

Sanctions
43. Non-compliance with relevant Civil Procedure Rules, orders and or directions
issued by a Judge, shall attract sanctions including but not limited to imposition
of costs, fines, striking out of pleadings, the dismissal of a suit and/or meting out
punishment prescribed in the Environment and Land Court Act or any other
Statute as the court may deem fit bearing in mind the overriding interests of
justice.
These practice directions supersede the directions dated 9 November 2012 and published
vide Gazette Notice No. 16268.
Dated 25 July 2014.
WILLY MUTUNGA,
Chief Justice/President Supreme Court of Kenya.
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 235

Schedule B

Gazette Notice No. 5179*

*(including Amendments made by Gazette Notice No. 6301 published on 5

September 2014 and Gazette Notice No. 6807 published on 26 September
2014)

The Constitution of Kenya

The Judicature Act

(Cap. 8)

The Civil Procedure Act

(Cap. 21)

Practice Directions Relating to Case Management in the Commercial

and Admiralty Division of the High Court at Nairobi

In exercise of the powers under article 161(2)(a) and article 165 (6) of the Constitution
of Kenya, in pursuance of section 10 of the Judicature Act, Chapter 8 of the Laws of
Kenya which makes provisions for the Chief Justice to make rules of court for regulating
the practice and procedure in the High Court and the Civil Procedure Act, Chapter
21 of the Laws of Kenya, and the Civil Procedure Rules, 2010, the Chief Justice
makes the following practice directions in the interest of effective case management
for the expeditious disposal of cases of a commercial nature, commenced by plaint
or Originating Summons which are proceeding to hearing in the Commercial and
Admiralty Division of the High Court of Kenya at Nairobi.
1. It is hereby ordered pursuant to Order 11, rule 1 of the Civil Procedure Rules,
2010 that all suits commenced by Plaint or Originating Summons and proceeding
to hearing in the Commercial & Admiralty Division of the High Court in Nairobi
are exempt from Order 11 of the Civil Procedure Rules, 2010.
2. On close of the pleadings any party may file the Case Management Checklist
[appendix A to this Practice Direction] and Case Management Request [Appendix
B to this Practice Direction].
3. The party filing the Case Management Checklist shall complete page 1 of the
Checklist with:
(a) The name and details of all parties.
(b) The name of the firm of Advocates appearing for each party together with
the address details including telephone number and e-mail address. If any
party is appearing in person, then this shall be stated together with the
address details.
(c) The details of all pleadings which have been filed with the date on which
each pleading was filed to assist the Court in identifying the relevant
pleadings. If any pleading has been amended, then details of the original
and amended pleadings should be inserted.
(d) The details of all Bundles of Documents and List of Witnesses and the
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236 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

statements of such witnesses which have been filed.

4. The party filing the Case Management Checklist shall within 7 days of filing,
serve the Case Management Checklist on all other parties to the suit and shall
write to all other parties, with a copy to the Court, inviting those other parties to
meet at the Commercial Division Registry with a view to fixing a date for the
Case Management Conference. If any party is not present when the date for the
Case Management Conference is fixed, the party filing the Case Management
Checklist shall forthwith serve on such parties a hearing notice giving notice of
the date and time fixed for the Case Management Conference.
5. Case Management Conference and applications under section 102 of the
Companies Act shall be heard on Friday.
6. At least 7 days before the date fixed for the Case Management Conference each
party shall file and serve on all other parties the Case Management Request
indicating what orders or directions that party will request at the Case Management
Conference [appendix B to this Practice Direction].
7. The Case Management Request shall state briefly the nature of the order or
directions requested with any necessary documents attached e.g. draft amended
pleading; request for particulars; request for interrogatories.
8. If any party requires an order or direction which has not been provided for in the
Case Management Request then the party shall use the “12. Other Applications”
box. This will include third party notices; third party directions; directions on
notices between co-defendants; directions on an Originating Summons.
9. At the Case Management Conference the Judge will complete the Case
Management Checklist and give all necessary directions for the expeditious and
fair hearing of the suit. For this purpose, the Judge will expect the advocate who
appears on the Case Management Conference to be the advocate having the
conduct of the suit or an advocate familiar with all aspects of the suit and fully
instructed to deal with all matters which may arise on the Case Management
Conference, so as to avoid unnecessary adjournments.
10. The Judge will record any directions given or orders made on the Case Management
Checklist and will inform the parties present in Court of such directions and
orders.
11. Where appropriate the Judge will give a time for compliance with such directions
or orders and will fix a further date for the Case Management Conference with
a view to recording compliance; or where appropriate making a specific “Unless
Order” imposing a time for compliance and stating that unless compliance is
achieved by the specified time the Judge will make such orders as are necessary
and just, including striking out where appropriate.
12. In the interest of avoiding unnecessary costs and delay the Judges in the Division
wish to encourage parties to consider Alternative Dispute Resolution – conciliation,
mediation and arbitration. This is question 5 in the Case Management Checklist
and will be considered by the Court before moving on to the other questions in
the Case Management Checklist.
13. Bundles of Documents:
(a) All bundles of documents filed will have every page numbered and all
documents will be indexed. It is recommended that numbering be at the
foot of the page so as to leave the top right hand corner for numbering of
any Record of Appeal to the Court of Appeal. The numbering should be
legible and the same on all copies of the bundle.
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 237

(b) Normally bundles should be prepared containing all documents arranged

chronologically, but where the advocate having the conduct of the
matter is of the opinion that for the purposes of clarity it is desirable to
arrange documents in separate categories [e.g. securities; reports; opinions;
correspondence; pleadings in another case] then the documents may be so
arranged either in separate bundles or with dividers in the same bundle, but
all documents in each category shall be in chronological order with every
page numbered.
(c) Parties should endeavour to avoid duplicating documents which are already
in an earlier bundle filed by another party, unless there is some particular
reason for including a second copy of that document.
14 Statements of Evidence:
(a) All statements should identify all documents referred to or relied on by
reference to the bundle in which the documents appear with the relevant
page number [e.g. Plaintiff ’s Bundle of Documents page 5].
(b) It is the practice in the Division that at the hearing each witness will be
sworn and then adopt his statement of evidence. Subject to the discretion
of the Judge hearing the suit, only minimal highlighting will normally be
allowed. Therefore, if additional matters arise from subsequent Bundles of
Documents or statements of evidence leave should be obtained at the Case
Management Conference for further statements of evidence or bundles to
be filed.
15. Applications:
(a) With the exception of applications for injunctions filed with the filing of
the plaint, all applications should as far as possible be raised and dealt with
at the Case Management Conference.
(b) On hearing any application for an injunction or on the delivery of a ruling
on an injunction application, the Judge may proceed to give directions for
a Case Management Conference with a view to the speedy resolution of
the matters in dispute.
(c) The affidavit filed in connection with any application may make reference
to documents contained in any Bundle of Documents which has been filed
and it shall not be necessary to exhibit such documents to the affidavits.
(d) Any application to strike out pleadings or for judgment on admission shall
be made at the Case Management Conference and may not be made after
completion of the Case Management Conference.
16. When the Judge is satisfied that all directions and orders made on the Case Management
Checklist have been complied with, the Judge shall complete the certificate at the end
of the Checklist. No case may be set down for hearing until the certificate has been
signed.
17. On certifying the case as ready for hearing the Judge shall proceed to fix a date for
the hearing of the case. For this reason, all advocates attending the Case Management
Conference must have their diaries available so as to fix a date and have all necessary
information regarding availability of their witnesses. If for any reason the judge
certifying the case will not be able to hear the case, then the judge will send the file to
the Presiding Judge of the Division for allocation to a judge to conduct the hearing.
That judge will then fix a date for hearing.
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238 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

18. This Practice Direction shall apply to all cases pending at the date hereof as well as to all
cases filed hereafter. However, if a case has already been confirmed as ready for hearing
prior to the date hereof, it shall not be necessary to comply with the provisions of this
Practice Direction.

Appendix A
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
MILIMANI LAW COURTS
CIVIL SUIT NO. OF
Y ……………………………………………………………………………… PLAINTIFF
-VERSUS-
Z …………………….………………………………………………………DEFENDANT
CASE MANAGEMENT REQUEST BY Z (DEFENDANT)
The DEFENDANT gives notice that at the Case Management Conference the following
applications will be made or orders requested:
Alternative Dispute Resolution Application
5. Should this case be referred to ADR
Further orders relating to pleadings and supporting statements and documents:
Application
6. Amendment of pleadings
7. Additional witness statements
8. Additional documents
9. Particulars
10. Interlocutory relief
11. Striking out
12. Other applications
13. Are there any objections to admissibility of any statement or documents or part
thereof?
When should such objection be determined?

What is objected to Nature of Objections

14. Issues - Are any directions required? Nature of Directions required:

15. .Consolidation, Case Stated, Test Case Application

a)           Consolidation with any other suit?
b)           Agreement for Case Stated for the opinion of the Court
c)           Test Cases
Witnesses and Evidence:
Application
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 239

16. Witness Summonses?

17. Admission of statements of evidence without calling the makers
as witnesses?
18. Admission of evidence on affidavit
19. Discovery, production or inspection of documents?
20. Interrogatories?
21. Examination of witness by an examiner or by the issue of
Commission outside court and for the admission of any such
examination as evidence in court?
22. Examination of Accounts

23. Expert Reports

Which Experts Date of Report Directions required

24. Chronologies, maps, plans, etc. Directions required

Are directions required regarding chronologies; maps; plans;
diagrams
Hearing:
Applications
25. How much time is required for the hearing?
26. Should any evidence be taken by video conferencing
link?
27. Is case ready for hearing?
DATED at NAIROBI this day of FEBRUARY 2017

E &A
ADVOCATES FOR THE DEFENDANT

DRAWN & FILED BY:-

E & A Advocates
Mwisho Building, 3rd Floor
Suite 316
Moi Avenue
P.O. Box
NAIROBI

TO BE SERVED UPON:
NMC Advocates
3rd Floor, Mwanzo Building
Suite 319
P.O. Box
NAIROBI
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240 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
MILIMANI LAW COURTS
CIVIL SUIT NO. OF

NATURE OF CLAIM: RECOVERY OF SUMS OBTAINED BY FRAUD AND/

OR THEFT
Y ……………………………………………………………….. PLAINTIFF
NAME AND ADDRESS OF THE ADVOCATE
NMC Advocates
3rd Floor, Mwanzo Building
Suite 319
P.O. Box
NAIROBI
-VERSUS-
Z …………………….……………………………………………… DEFENDANT
NAME AND ADDRESS OF THE ADVOCATE
E & A Advocates,
Mwisho Building, 3rd Floor
Suite 316
Moi Avenue
P.O. Box
NAIROBI
CASE MANAGEMENT CHECKLIST
Plaint Filed on Defendant’s Reply to
Statement of Defendant’s
Defence filed on Statement of
Defence filed on
Other Pleadings

Pleadings, Statements and Bundle of Documents

Compliance with Order 3 rule 2 and Order 7 rule 5
Date Orders for Unless Compliance
Filed Compliance Orders Certified
1. Plaintiff ’s List of Witnesses
and Statements
2. Plaintiff ’s Indexed and
paginated Bundle of
Documents
3. Defendant’s List of
Witnesses and Statements
4. Defendant’s Indexed
and paginated Bundle of
Documents
5. Alternative Dispute Application Directions
Resolution ADR
Should this case be referred to
ADR?
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 241

Further Orders relating to Pleadings and Supporting Statements and Documents:

Application Orders Made Date Filed Compliance
Certified
6. Amendment of
Pleadings
7. Additional Witness
Statement
8. Additional
Documents
9. Particulars
10. Interlocutory Relief
11. Striking Out
12. Other Applications
13. Are there any objections to admissibility of any statement or documents or part thereof?
When should such objection be determined?
Objections Directions for Directions on Admissibility
Determination
of Objections

14. Issues Have Issues been Directions Compliance

argued and filed under, if
not has each party filed its
Issues?
15. Consolidation, Case Started, Test Case Application Directions
(a) Consolidation with any other suit?
(b) Agreement for Case Stated for
opinion of the Court
(c) Test Cases

Witness and Evidence

Application Orders
16. Witness Summonses?
17. Admission of Statements of evidence without
calling the makers as Witnesses?
18. Admission of Evidence on Affidavit?

19. Discovery, production or inspection of

Documents?
20. Interrogatories?
21. Examination of Witness by an Examiner or by
the issue of Commission outside Court and
for the Admission of any such examination as
Evidence in Court?
22. Examination of Accounts?
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242 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

23. Expert Reports

Which Expert? Date of Report Directions on Exchange Directions on
Admissibility

24. Chronologies, maps, plans etc Yes/No Directions Compliance

Are directions required regarding

chronologies, maps, plans, diagrams
Hearing
25. How much time is required for the hearing?
26. Should any evidence be taken by video conferencing link?

27. Is Case ready for hearing?

I hereby certify that all matters which are necessary for the preparation of this Case for hearing
have been done and that the case may now be set down for hearing.
Judge: ………………………………………………     Date: ................................................
Case fixed for hearing on: ……………………………………………………………………
Judge: …………………………………………     Date: ……………………………....

Schedule C

Court of Appeal Practice Direction - Civil Appeals and

Applications
This Practice Direction is issued pursuant to sections 3A and 3B of the Appellate
Jurisdiction Act and to assist litigants and advocates to comply with the provisions of
the Court of Appeal Rules, 2010.
This Practice Direction relates to Civil Appeals.
References to “the Rules” or a particular rule in this Practice Direction are references
to the Court of Appeal Rules, 2010.
References to action required to be taken by “advocates” shall also apply to
litigants in person.
1. Documents filed in the Court of Appeal:
a. All documents filed in the Court of Appeal shall comply with rule 13.
b. A4 paper shall be used in place of foolscap.
c. Care must be taken to see that all documents filed are legible. Where the original
document which has been produced in the court appealed from is of poor quality
then a typed version of the original should be included in the application, affidavit
or Record of Appeal immediately after the copy of the original.
d. All pages shall be numbered in the top right hand corner.
e. Every tenth line of every document shall be numbered in the right hand margin.
f. Advocates shall include in all applications, affidavits and Records of Appeal
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 243

their e-mail and mobile telephone numbers to facilitate communication by the

Registry.

2. Records of Appeal:
a. The heading on the Memorandum of Appeal and the Record of Appeal shall be
in Annex A to this Practice Direction.
b. Records of Appeal shall contain the documents set out in rule 87 in the order
set out in rule 87. Advocates shall use rule 87 as a checklist when preparing their
Records of Appeal.
c. With a view to confining Records of Appeal to the essential documents the
following guidance is given:203
i. Appearances, Notices of Change of Advocate and List of Documents are
neither pleadings under rule 87(1)(c) nor necessary documents under rule
87(1)(k) and should not be included in a Record of Appeal unless any
particular point turns on such documents.
ii. Interlocutory applications filed in the court appealed from and affidavits filed
in support of or in opposition to such applications should not be included
in a Record of Appeal against the final judgment in the court appealed from
unless the final judgment arises from such application or any particular point
turns on such documents.
iii. Lists of Authorities and the authorities cited in the court appealed from
should not be included in a Record of Appeal unless any particular point
turns on such documents.
iv. In interlocutory appeals the judges’ notes in the court appealed from are not
normally necessary and parties should consider excluding such notes under
the proviso to rule 87(1).204
d. Where a Record of Appeal comprises of more than 500 pages the record shall be
bound in separate volumes each of 500 or less pages.
i. The first volume shall contain an index of all the documents in the Record
of Appeal indicating where each subsequent volume starts.
ii. All subsequent volumes shall contain an index of the documents in that
volume.
iii. The covers of all volumes shall be of the same colour with the volume
number clearly marked on the front cover.
e. When filing a Record of Appeal parties shall inform the Court by letter in the
form in Annex G of any pending applications in the Court of Appeal arising from
or relating to the substantive appeal so that the Court may consider whether the
substantive appeal should be heard instead of the pending application.

3. Applications:
a. All applications and affidavits shall be bound with all pages numbered and every
tenth line numbered in compliance with paragraph 1(d) and (e) above.
b. Where the application together with the supporting affidavits and exhibits exceed
500 pages then the application should be bound in the same manner as a Record
of Appeal in compliance with paragraph 2(d) above.

203 The judges are concerned that Records of Appeal are becoming unnecessarily large with many documents
which are not required for the determination of the appeal.
204 This will eliminate the need to apply for proceedings in the court appealed from and should expedite the
filing of the appeal.
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244 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

c. Where any affidavit filed in relation to an application exceeds 500 pages then
paragraph (b) above will apply to such affidavit.
d. Where a party wishes to file a further affidavit for which leave is required such
further affidavit may be filed prior to the hearing of the application. The Registry
will mark all copies of such affidavit as “filed without leave” and the Court’s
copy of the affidavit will be kept by the Registry separate from the Court file
seen by the judge. The affidavit should then be served on all other parties. At the
hearing of the application the party seeking to rely on such affidavit will make
the necessary oral application and the judge will consider whether to grant leave
for the affidavit to be filed and referred to at the hearing of the application. If
leave is not granted the affidavit will be returned by the Court. This practice is
encouraged so as to avoid unnecessary adjournments of applications.
If the other party wishes to file an affidavit in response, the same procedure shall
be followed.
e. When filing an application parties shall inform the Court by letter in the form
in Annex H of any other pending applications in the Court of Appeal relating to
the same appeal or intended appeal so that the Court may consider whether the
substantive appeal should be heard instead of the pending application.
f. The Registry keeps different registers for different types of applications and the
headings to be used in applications should be as follows:
i. Applications in an intended appeal should have the heading in Annex B to
this Practice Direction.
ii. Applications in an existing appeal should have the heading in Annex C to
this Practice Direction. The number of the application will be that of the
appeal and the application and affidavits in support or opposition may refer
to the Record of Appeal which will be placed before the Court together
with the application.
iii. Applications for certification of a point of general public importance for
the purposes of an appeal to the Supreme Court should have the heading in
Annex D to this Practice Direction.

4. Case Management:
a. With a view to making proper use of the court’s time and avoiding unnecessary
applications and adjournments the court will list all pending appeals before a
single judge for a Case Management Conference.
b. Such Case Management Conference shall be fixed by the Registry for a date at
least 60 days after the filing of the Record of Appeal.
c. The appellant shall file and serve a Case Management Checklist in the form in
Annex J to this Practice Direction.
d. At the Case Management Conference the judge will:
i. Confirm that the Record of Appeal has been prepared in accordance with
the Rules and the provisions of this Practice Direction.
ii. Give all necessary directions for the filing of Supplementary Records of
Appeal to rectify any defects in the Record of Appeal and to ensure that
all documents which will be necessary for the hearing of the appeal are on
the court record. The judge will also give directions regarding any pending
applications.
iii. Consider and give directions on the manner and length of submissions at the
hearing. This will include directions as to:
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 245

(1) oral or written submissions.

(2) the length of any oral submissions and whether any skeleton
submissions are required.
(3) Skeleton submissions are a succinct statement of:
(a) what the hearing is about.
(b) the background to the hearing.
(c) chronologies
(d) the issues for determination.
(e) what you want the court to decide and why.
(f) an outline of the submissions in numbered brief points cross-
referenced to the evidence in the Record of Appeal and
supported by the authorities citing the proposition of law relied
on and the authority in support with reference to the page or
paragraph.
(4) if written submissions are ordered:
(a) the timetable for the filing and serving of such written
submissions.
(b) the length of such submissions.
(c) the time which will be allocated at the hearing for oral
highlighting.
iv. If any additional authorities come to the Court’s attention either before or
after the oral submissions or highlighting of written submissions, the Court
may write to the advocates requesting their comments, either in writing or
at a further hearing at the option of the Court.

5. Written Submissions:
a. Written submissions should be typed or printed using 1.5 spacing and a font of at
least 12 points.
b. Written submissions must:
i. Contain a chronology of relevant events including any previous court
history.
ii. Refer to the grounds of appeal being argued and indicate if any grounds are
being abandoned or argued together.
iii. Identify any error or errors said to have been made by the Court appealed
from and the basis in principle or authority for that contention.
iv. Where it is contended that a finding of fact should have been made or that
a finding of fact which was made should not have been made, the basis for
that contention should be set out by reference to the evidence.
v. Be set out in numbered paragraphs.
vi. Be cross-referenced to the relevant pages and passages in the Record of
Appeal.
vii. Not include extensive quotations from documents or authorities.
c. At the Case Management Conference [see paragraph 7 below]:
i. The court has power to limit the length of written submissions and will
normally exercise such power. To enable advocates to clearly set out their
submissions with headings and numbered paragraphs the court will normally
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246 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

limit the length by reference to word count. As a guide, a page of text is

approximately 500 words.
ii. The party filing such written submissions limited by word count shall
include a certificate as to the number of words at the end of the submissions.
iii. A timetable for written submissions will be established by the court following
the order of address set out in rule 27.
d. The number of copies of written submissions to be filed in the Registry shall be:
i. Two, if the application is to be heard by a single judge.
ii. Four, if the application or appeal is to be heard by a bench of three judges.
iii. Six, if the application or appeal is to be heard by a bench of five judges.
In addition, copies of written submissions must be served on all other parties
to the application or appeal.
e. In addition to the hard copies of written submissions required by paragraph (d)
above, a softcopy in PDF or MS Word should be brought to the Registry on
a flash disk. The Registry will copy the written submissions on to the registry
computer and return the flash disk to the party filing the written submissions.

6. Authorities:
a. Lists of Authorities shall be filed and served in accordance with rule 26. The
Registry will stamp the List of Authorities to acknowledge receipt.
b. Copies of the authorities to be referred to must be produced for the use of the
court and the other parties. The copies of the authorities shall be served on the
other parties with the List of Authorities.
c. Authorities may be bound or placed in a folder with a copy of the List of
Authorities at the top.
d. The List of Authorities shall contain a summarised analysis of each authority
specifying the ratio decidendi, relevance and applicability to the application or
appeal.
e. To assist the court to identify the authorities they should either be flagged
indicating the first page and number of each authority or the bundle should be
paginated and reference to the page numbers indicated in the List of Authorities.
f. Parties are encouraged to highlight the passages they wish to rely on by marking
the right hand margin.205 If such highlighting is done, then the highlighting must
appear on all copies including the copies served on the other parties.
g. The court’s copies of authorities may either be delivered with the List of
Authorities or handed in to the court at the start of the hearing.
h. If written submissions are being filed then the List of Authorities together with
the copies of the authorities relied on must be filed with the written submissions,
unless already filed.

7. Orders:
a. Orders on applications should follow the form set out in Annex E to this Practice
Direction.
b. Orders following the completion of a substantive appeal should follow the form
set out in Annex F to this Practice Direction.
c. Where any consequential orders are required, e.g. for the release of security, it

205 The judges request that advocates do not highlight the text as this often makes the text hard to read.
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 247

is the duty of the parties to make the necessary requests in their oral or written
submissions so that the Court will be aware of the orders which need to be
considered and made.

8. Withdrawal of Appeals or Applications:

a. A party who does not wish to pursue an appeal or application may request the
Court to withdraw the application or appeal. Such request may be made in writing
by letter copied to the respondent or orally in court.
i. If the other party consents to the appeal or application being withdrawn
with no order as to costs, the parties can file a consent letter and the order
will be made by the Court pursuant to the consent letter.
ii. If the other party does not consent to the appeal or application being
withdrawn with no order as to costs the party withdrawing can either:
(1) Write to the Court stating the wish to withdraw the appeal or
application in which case the Court will record the withdrawal and
proceed to award costs to the other party; or
(2) Make the application to withdraw orally when the matter is next in
Court when the Court will determine the appropriate order as to
costs.
b. Where a settlement has been reached disposing of an application or an appeal, the
parties may file a consent in writing signed by all parties for the application or
appeal to be withdrawn by consent.
c. Parties are encouraged to file any consents as early as possible.

9. Fixing of hearing dates for Applications and Appeals:

a. Save in relation to matters which have been certified urgent, the court will invite
the parties to attend at the registry to fix hearing dates by consent which are
convenient to all parties.
b. In the event that the parties cannot reach agreement on a suitable date the
Registrar shall fix a date convenient to the Court.

10. Adjournments:
If all parties consent in writing and the consent is filed at least 7 days before the date
fixed for hearing, the Court will, for valid reasons, agree to remove an application or
appeal from the hearing list.
Where a matter is taken out at the instance of the Court, the matter will be given
a priority hearing date.
11. Urgent Appeals and Applications:
a. Where a party wishes an application to be heard urgently, the application shall be
accompanied by a Certificate of Urgency signed by the advocate and an Affidavit
as to Urgency sworn by the advocate setting out the reasons why the application
should be heard urgently.
b. Where a party wishes an appeal to be heard urgently, a letter shall be written to
the Registrar of the Court supported by an Affidavit as to Urgency setting out
the reasons why the appeal should be heard urgently. The letter and a copy of the
Affidavit shall be served on all other parties.
c. The application under paragraph (a) above and the letter under paragraph (b)
above shall be referred to the President of the Court of Appeal or the Presiding
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248 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Judge who shall make a determination on the question of urgency within 7 days.
Such determination shall be in writing with reasons.

12. Old Appeals filed in 2012 or earlier Pending in the Registry in Nairobi:
a. The court will be listing these appeals for Case Management Conferences under
paragraph 4 above commencing 7 days from the date of this Practice Direction,
starting with the oldest pending appeals.
b. Appeals will be listed on an hourly basis before the single judge conducting the
Case Management Conferences.

Annex A
[Heading on the Memorandum of Appeal and the Record of Appeal]
In the Court of Appeal at Civil Appeal No. of 20
.................................................................................................................Appellant
and .......................................................................................................Respondent
(Appeal from the Judgment/Order of the High Court of Kenya at ________ (Mr/
Lady Justice ......... ) dated ............., 20... in Civil Case ......... of 20.....
Between
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiff
v
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant)
.___________
Annex B
[Heading on Application in an intended Appeal]
In the Court of Appeal at Civil Application No. of 20
In the matter of an intended appeal between:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Applicant
and
. . . . . . . . . . . . . . . . . . . . . . . ................... . . . . . . . .........Respondent
(Application for stay of execution of the Judgment/Order of the High Court of Kenya at
___________ (Mr/Lady Justice ......... ) dated ............., 20... in Civil Case ......... of 20...
Between
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiff
versus
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant

Annex C
[Heading on Application in an existing Appeal]
In the Court of Appeal At Civil Appeal (Application) No. of 20
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Appellant
and
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent
(Appeal from the Judgment/Order of the High Court of Kenya at ____________
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 249

(Mr/Lady Justice ......... ) dated ............., 20... in Civil Case ......... of 20........
between
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiff
versus
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Defendant )
(Application for ......................................... )

Annex D
[Heading on an Application for certification of a matter of general public
importance]
In the Court of Appeal at Civil Application No Sup of 20
between
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Applicant and
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent
(Being an application by the appellant/respondent in Civil Appeal ......
of 20... for a Certificate that a matter of general public importance
is involved pursuant to article 163(4) of the Constitution of Kenya)

Annex E
[Form of Order on applications]
Heading as in Annex B, C or D above
In Court this ............. day of .............................. , 20....................
Before: The Honourable Mr/Lady Justice .................., a Judge of Appeal. The
Honourable Mr/Lady Justice .................., a Judge of Appeal. and The Honourable
Mr/Lady Justice .................., a Judge of Appeal.
Order
This Application coming up for hearing on the ............ day of ................., 20......., and
upon hearing ......................, Counsel for the applicant, and ................... , Counsel
for the respondent, And upon Reading the affidavit of .................................... sworn
on .......... day of ...................., 20..... in support of the Notice of Motion and the
replying affidavit of ...................... sworn on ............ day of ................., 20...... It is
Ordered that:
1. ......................................
2. ......................................
Given under my hand and the seal of the Court at _________ this ....... day of
............., 20.....
Registrar
Issued at ___________ this .......... day of ....................., 20.....

Annex F
[Form of Order on determination of a substantive appeal]
Heading as in Annex A above
In Court this ............. day of .............................. , 20.........................
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250 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Before: The Honourable Mr/Lady Justice .................., a Judge of Appeal. The

Honourable Mr/Lady Justice .................., a Judge of Appeal. and The Honourable
Mr/Lady Justice .................., a Judge of Appeal.
Order
This Appeal coming up for hearing on the ............ day of ................., 20......., and
upon hearing ......................, Counsel for the appellant, and ................... , Counsel
for the respondent, when the appeal was stood over for judgment and this appeal
coming up for judgment this day It is Ordered that:
1. ......................................
2. ......................................
3. ......................................
GIVEN under my hand and the seal of the Court at ................ this ....... day of
................., 20..........
Registrar
ISSUED at ....................... this .......... day of ....................., 20.....
______
Annex G
[Form of notification to the Registry on filing an Appeal of any pending
applications]
The Registrar, Court of Appeal
Re: Civil Appeal No. ........... of 20.....
Please note that the following pending applications arise from or relate to the above
appeal:
[Insert the details of the pending applications]

Annex H
[Form of notification to the Registry on filing an application of any other pending
applications]
The Registrar, Court of Appeal
Re: Civil Application No. ........... of 20.....
Please note that the following pending applications arise from or relate to the same
intended appeal:
[Insert the details of the pending applications]
_____
Annex J
[Form of Case Management Checklist]
See next page -15
In the Court of Appeal at Nature of The Appeal: Civil
Appeal No......................of.......................................................................................
........................Appellant [Name and address of advocate:] versus .............................
...............................................................................Respondent [Name and address
of advocate:] ..............................................................................Case Management
Checklist
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Practice Directions - the Golden Guides Towards Improving Efficiency in Court 251

Appeal Filed on Cross-appeal filed on Notice of Grounds to Affirm filed on................

Directions for Hearing: Directions
1. Oral submissions
a) Duration
b Skeleton submissions
2. Written Submissions
a) Length of written submissions in words [500 words to a page]
b) Length of oral highlighting
3. Chronologies; maps; plans; diagrams
4. How much time is required for the hearing?
5. Is appeal ready for hearing?
6. Any other directions e.g. pending applications
I hereby certify that all matters which are necessary for the preparation of this Appeal
for hearing have been done and that the Appeal may now be set down for hearing.
Ju d g e : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dated.........................................-16
This Practice Direction issued at Nairobi this.......... day of..........2015.
President, Court of Appeal
 Chapter 4

A Litigator’s Guide to Topical Constitutional

Issues - Simplicity in Demystifying the Complex

4.1 Preamble
In this chapter I will provide a guide on various topical issues regarding cases involving
the Constitution.
A new dawn in litigation was heralded with the passing of the Constitution
in 2010. Citizens suddenly converted all manner of cases into constitutional issues
without due regard to legal process and the fact that the matters could be dealt with
in the ordinary manner in other High Court divisions.
This chapter will simply attempt to scratch the surface of topical constitutional
issues that bedevil the practitioner and provide useful tips in problem solving. It is not
meant to be exhaustive.
Let me begin this chapter by a quote from Wikipedia:
“A constitution is a set of fundamental principles or established precedents according
to which a state or other organization is governed. These rules together make up, i.e.
constitute, what the entity is. When these principles are written down into a single
document or set of legal documents, those documents may be said to embody a written
Constitution; if they are written down in a single comprehensive document, it is said to
embody a codified Constitution.

Constitutions concern different levels of organizations, from sovereign states to companies

and unincorporated associations. A treaty which establishes an international organization
is also its Constitution, in that it would define how that organization is constituted.
Within states, a Constitution defines the principles upon which the state is based, the
procedure in which laws are made and by whom. Some Constitutions, especially codified
Constitutions, also act as limiters of state power, by establishing lines which a state’s rulers
cannot cross, such as fundamental rights. An example is the Constitution of the United
States of America.

The Constitution of India is the longest written Constitution of any sovereign country in the world,
containing 444 articles in 22 parts, 12 schedules and 118 amendments, with 117,369 words
in its English-language translation, while the United States Constitution is the shortest written
Constitution, at 7 articles and 27 amendments.’’206 [emphasis mine].

Inspired by John Locke,207 the fundamental constitutional principle is that the

individual can do anything but that which is forbidden by law, while the state may do
nothing but that which is authorised by law.

206 http://en.wikipedia.org/wiki/Main_Page
207 Chapter 9, Line 124, John Locke, Second Treatise on Government (1690). See en.wikipedia.org/wiki/
Constitutional law.
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254 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In a decision of three judges, the court held in the matter of Hon. Lady Justice
Nancy Makokha Baraza v the Judicial Service Commission and others, the judges held:208
“the Constitution of Kenya which was promulgated on 27 August 2010 is arguably one
of the most robust in the African continent. Not only does it expressly provide that all
sovereign power belongs to the people of Kenya but also states that such power shall be
exercised only in accordance with the Constitution. It provides for a robust Bill of Rights
which deals with all aspects of human needs including the protection of the environment
and consumer rights. Article 23(3) empowers this Court, in any proceedings brought
under article 22, to grant appropriate reliefs, including a declaration of rights, an injunction,
a conservatory order, a declaration of invalidity of any law that denies, violates, infringes,
or threatens a right or fundamental freedom in the Bill of Rights and is not justified under
article 24, an order for compensation and an order of judicial review”.

Justice Rawal, J (as she then was) aptly described the spirit of the Constitution in the
case of Charles Lukeyen Nabori and others v the Hon. Attorney General and others209:
“Our Constitution is not a cloud that hovers over the beautiful land of Kenya – it is
linked to our history, customs, tradition, ideals, values and on political, cultural, social and
economic situations. Its dynamics and relevance is rooted in these values. Cut off from
these factors it would become redundant and irrelevant.The Constitution is not a skeleton
of dry bones without life and spirit. The least it is expected to have and which cannot be
denied is the spirit of its framers. The Court should not limit the ambit of public interest
or agree to confine it only to past definitions or categories, since our Constitution inspires
us to give public interest the widest leverage and to uphold it”.

Justice Odunga in the case of Christopher Ndarathi Murungaru v Standard Limited and
others210 applied the dicta of the South African case of Minister of Health and others v
Treatment Action Campaign and others211 where the court defined the powers of the
court in dispensing justice when dealing with constitutional matters. The court held
as follows:
“Section 38 of the Constitution contemplates that where it is established that a right in
the Bill of Rights has been infringed a court will grant ‘appropriate relief ’. It has wide
powers to do so and in addition to the declaration that it is obliged to make in terms of
section 172(1)(a) a court may also ‘make any other order that is just and equitable’ (section
172(1)(b)) …Appropriate relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances of each particular case the
relief may be a declaration of rights, an interdict, a mandamus or such other relief as may
be required to ensure that the rights enshrined in the Constitution are protected and
enforced. If it is necessary to do so, the courts may even have to fashion new remedies to
secure the protection and enforcement of these all-important rights…The courts have
a particular responsibility in this regards and are obliged to ‘forge new tools’ and shape
innovative remedies, if needs be, to achieve this goal…Nor would it necessarily be out
of place for there to be an appropriate order on the relevant organs of state in South
Africa to do whatever may be within their power to remedy the wrong here done to
Mohamed by their actions, or to ameliorate at best the consequential prejudice caused to
him. To stigmatise such an order as a breach of the separation of state power as between

208 Constitutional Petition No. 23 of 2012 per Warsame (as he then was), Omondi & Odunga, JJ.
209 Nairobi HCCP No. 466 of 2006
210 [2012] eKLR
211 [2002] 5 LRC 216
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A Litigator’s Guide to Topical Constitutional Issues - Simplicity in Demystifying the Complex 255

the Executive and the Judiciary is to negate a foundation value of the Republic of South
Africa, namely supremacy of the Constitution and the rule of law. The Bill of Rights,
which we find to have been infringed, is binding on all organs of state and it is our duty
to ensure that appropriate relief is afforded to those who have suffered infringement of
their constitutional rights”.

4.2 The Bill of Rights

Article 20, set out below, is the starting point in considering the essence of the Bill of
Rights. It reads:

20. Application of Bill of Rights

(1) The Bill of Rights applies to all law and binds all State organs and all persons.
(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights
to the greatest extent consistent with the nature of the right or fundamental
freedom.
(3) In applying a provision of the Bill of Rights, a court shall—
(a) develop the law to the extent that it does not give effect to a right or
fundamental freedom; and
(b) adopt the interpretation that most favours the enforcement of a right or
fundamental freedom.
(4) In interpreting the Bill of Rights, a court, tribunal or other authority shall
promote—
(a) the values that underlie an open and democratic society based on human
dignity, equality, equity and freedom; and
(b) the spirit, purport and objects of the Bill of Rights.
(5) In applying any right under article 43, if the State claims that it does not have
the resources to implement the right, a court, tribunal or other authority shall be
guided by the following principles—
(a) it is the responsibility of the State to show that the resources are not
available;
(b) in allocating resources, the State shall give priority to ensuring the widest
possible enjoyment of the right or fundamental freedom having regard to
prevailing circumstances, including the vulnerability of particular groups or
individuals; and
(c) the court, tribunal or other authority may not interfere with a decision by
a State organ concerning the allocation of available resources, solely on the
basis that it would have reached a different conclusion.

23. Authority Of Courts To Uphold And Enforce The Bill Of Rights

(1) The High Court has jurisdiction, in accordance with article 165, to hear and
determine applications for redress of a denial, violation or infringement of, or
threat to, a right or fundamental freedom in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases
to subordinate courts to hear and determine applications for redress of a denial,
violation or infringement of, or threat to, a right or fundamental freedom in the
Bill of Rights.
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256 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(3) In any proceedings brought under article 22, a court may grant appropriate relief,
including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or
threatens a right or fundamental freedom in the Bill of Rights and is not
justified under article 24;
(e) an order for compensation; and
(f) an order of judicial review.

4.2.1 The Bill of Rights can be Enforced against Private Citizens

The Constitution, unlike the repealed one, has expanded the sphere of the enforcement
of fundamental rights. Unlike in the past where only the state was the sole entity
enjoined to observe and protect the fundamental rights of the citizen, this has now
been expanded to encompass other persons.
Article 260 of the Constitution defines the word person as:
“person” includes a company, association or other body of persons whether incorporated
or unincorporated;

4.2.2 Persons Obligated to Observe the Bills of Rights

Satrose Ayuma and others v Registered Trustees of the Kenya Railways Staff Retirement Benefits
Scheme and 3 others, Petition No. 65 of 2010.212 The court in this case addressed the
persons obligated to observe the Bill of rights. It held:
“Looking at the provisions of articles 2(1), 19(3) and 20(1), I am certain that the Bill
of Rights can be enforced as against a private citizen, a public or a government entity
such as the 1st and 2nd Respondents. I say so deliberately and with firmness because
previous decisions of this Court on the subject have been completely misunderstood
and misread by more persons than the misguided journalist masquerading as a scholar of
Constitutional interpretation. The Bill of Rights is therefore not necessarily limited to a
State Organ as argued by the 1st and 2nd Respondents.”

In Isaac Ngugi v Nairobi Hospital and 3 others, Nairobi Petition No. 407 of 2012,213 the
Court held:
“Counsel for the respondent argued that the case does not raise constitutional issues and
should be determined as a contractual matter through the usual procedure for determining
such matters. [20] The petitioner on the one hand argued that he is on sound footing as
the case is about breaches of the Bill of Rights and as such he is entitled to move the court
under Article 22 which provides that any party whose fundamental rights and freedoms
are threatened or violated may move the court for appropriate relief. [21] The approach
adopted in the Kenya Bus Case (supra) cannot survive the Constitution. The supremacy
clause of our Constitution recognises that the Constitution is the supreme law and binds
all persons and all State organs at both levels of government. Article 3(1) states that every
person has an obligation to respect, uphold and defend the Constitution while article

212 [2013] eKLR

213 [2013] eKLR
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A Litigator’s Guide to Topical Constitutional Issues - Simplicity in Demystifying the Complex 257

19(1) provides that, “The Bill of Rights applies to all law and binds all State organs and
all persons.” The term ‘person’ includes a company, association or other body of persons
whether incorporated or not such as the hospital, in accordance with article 260.’’

4.3 What are Conservatory Orders?

The court in the case of Al Yusra Restaurant Limited v Kenya Conference of Catholic
Bishops and another214 considered the definition and the test when granting conservatory
orders. Justice Lenaola held as follows:
“49. In the case of The Centre for Human Rights and Democracy and others v The Judges and
Magistrates Vetting Board & others, Eldoret Petition No.11 of 2012, it was held by a
majority as follows;
“In our view where a legal wrong or a legal injury is caused to a person or to
a determinate class of persons by reason of violation of any Constitutional or
legal right or any burden is imposed in the contravention of any Constitutional
or legal provision or without the authority of the law or any such legal wrong
or injury is threatened, the High Court has powers to grant appropriate reliefs
so that the aggrieved party is not rendered, helpless or hapless in the eyes of
the wrong visited or about to be visited upon him or her. This is meant to
give an interim protection in order not to expose others to preventable perils
or risks by inaction or omission.”
50. Further, in the case of Judicial Service Commission v Speaker of the National Assembly
and another, Petition No. 518 of 2013, the Court expressed itself as follows:
“Conservatory orders in my view are not ordinary civil law remedies but
are remedies provided for under the Constitution, the Supreme law of the
land. They are not remedies between one individual as against another but
are meant to keep the subject matter of the dispute in situ. Therefore, such
remedies are remedies in rem as opposed to remedies in personam. In other
words, they are remedies in respect of a particular state of affairs as opposed
to injunctive orders which may only attach to a particular person.”

4.4 The Constitution of Kenya (Protection of Rights and

Fundamental Freedoms) Practice and Procedure Rules, 2013
These are known as the Mutunga Rules and were passed by the Honourable Chief
Justice in exercise of the powers conferred by article 22(3) as read with article 23 and
article 165(3)(b) of the Constitution of Kenya.215 The Rules are set out at the end of
this chapter.
Justice Lenaola in the case of Nazlin Umar Fazaldin Rajput v Attorney General and
3 others216 considered the Mutunga Rules and held as follows:
“In that context therefore, it is obvious why the Civil Procedure Rules as invoked by the
applicant, are inapplicable. Presently, it is Legal Notice No. 117 of 2013, the Constitution
of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure
Rules, 2013 that is applicable to an application such as the one before me. But those Rules
have no specific provision for grant of setting aside orders ….

214 [2014] eKLR

215 Kenya Gazette Supplement No. 95 28th June, 2013 (Legislative Supplement No. 47)
216 [2014] eKLR
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258 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

The import of the above Rules as read together is that access to justice is an overriding
objective in a matter such as the one before me. Similarly, the Court must ensure just,
expeditious and proportionate disposal of all cases.’’

Before drafting any constitutional petition, one must familiarise oneself with the Rules.
Also remember a simple rule in drafting- follow the rules and regulations and your
pleadings will capture the essence of the issues at hand.

Rule 4(1) states as follows:

“4.(1) Where any right or fundamental freedom provided for in
the Constitution is allegedly denied, violated or infringed or threatened, a person
so affected or likely to be affected, may make an application to the High Court in
accordance to these rules.’’
It is thus important to identify what fundamental freedom is in issue that begs
determination.

4.4.1 Form of the Petition

This is addressed by rule 10, which states:
“10.(1) An application under rule 4 shall be made by way of a petition as set out in Form
A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the
person in whose name the petitioner has instituted the suit; or in a public
interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any
of the petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the
petitioner; and
(g) the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any
other informal documentation which discloses denial, violation, infringement or
threat to a right or fundamental freedom.
(4) An oral application entertained under subrule (3) shall be reduced into writing
by the Court.’’
The Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights
Alliance and 5 others217 addressed the need for a party to plead with precision the
alleged violations of the Constitution. It held as follows:
“It is our finding that the petition before the High Court was not pleaded with precision
as required in constitutional petitions. Having reviewed the petition and supporting
affidavit, we have concluded that they did not provide adequate particulars of the claims
relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-

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Corruption Commission Act, 2011. Accordingly, the petition did not meet the standard
enunciated in the Anarita Karimi Njeru case (supra).’’

The format of the petition is guided by Form A at the end of the Rules.
Rule 11 provides that documents may accompany the affidavit in support of the
petition.
As stated above, when drafting the petition make sure you follow the guidelines
set out in rule 10. Remember the golden rule – keep it simple and avoid unnecessary
clutter which is the reflection and genesis of confusion and chaos.’

4.4.2 Response to the Petition

Not many realise that one can file a cross-petition to a constitutional petition [see rule
15(1) (3)].
The Supreme Court in the case of Communications Commission of Kenya and others
v Royal Media Services Limited and 7 others218 defined the distinction between a cross-
appeal and a cross-petition. It held thus:
“There was a difference between a cross-appeal and a cross-petition. A cross-appeal was
an action by a respondent, who intended to counter an appellant’s cause in an appeal,
with the view of obtaining certain relief(s) from the Court. A cross-petition on the other
hand, was an action by a defendant in first-instance claims, intended to counter the claim
of a petitioner with the view of obtaining certain remedies. The applicant, therefore, did
not bear the right to file a cross-petition or even a cross-appeal, as that was a preserve of a
respondent who had a claim against another party already in the appeal (cross-appeal), or
another party to the suit (cross-petition).’’

The response to the petition is set out in rule 15 which reads:

“15.(1) The Attorney-General or any other State organ shall within fourteen days of
service of a petition respond by way of a replying affidavit and if any document
is relied upon, it shall be annexed to the replying affidavit.
(2)(a) A respondent not in the category of subrule (1) shall within seven days file a
memorandum of appearance and either a—
(i) replying affidavit; or
(ii) statement setting out the grounds relied upon to oppose the petition.
(b) After filing either of the documents referred to in subrule (2)(a), a respondent
may respond by way of a replying affidavit or provide any other written
document as a response to the petition within fourteen days.
(3) The respondent may file a cross-petition which shall disclose the matter set out
in rule 10(2).’’

4.4.3 Hearing of Petition

This is covered by rule 20 which reads:
“20.(1) The hearing of the petition shall, unless the Court otherwise directs, be by way
of—

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260 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(a) affidavits;
(b) written submissions; or
(c) oral evidence.
(2) The Court may limit the time for oral submissions by the parties.
(3) The Court may upon application or on its own motion direct that the
petition or part thereof be heard by oral evidence.
(4) The Court may on its own motion, examine any witness or call and
examine or recall any witness if the Court is of the opinion that the
evidence is likely to assist the court to arrive at a decision.
(5) A person summoned as a witness by the court may be cross- examined by
the parties to the petition.’’

4.4.4 Consolidation of Pending Petitions

Remember that rule 8 provides every case shall be instituted in the High Court
within whose jurisdiction the alleged violation took place. Rule 17 permits the court
on its own motion or on application by any party to consolidate several petitions on
such terms as it may deem just.
The factors the court considers in transferring and consolidating a petition were
dealt with in the case of Kimani Waweru and 28 others v Law Society of Kenya and 12
others.219 The court held as follows when setting the requisite tests:
“8. So while the convenience of the parties and their witnesses is to be considered
in accordance with Order 47, rule 6 of the Civil Procedure Rules first principles
indicate that it is the convenience of the defendant that should be given paramount
consideration to avoid undue hardship on his part in defending the suit.
9. Further consideration must be had of the undesirability of multiple suits over the
same subject matter being considered by different courts of concurrent jurisdiction
with the possibility of conflicting decisions over the same subject matter. No
authority is necessary for this obvious consideration of judicial policy which
goes to promoting public confidence in the judicial system. Moreover, article
159 of the Constitution and section 1A of the Civil Procedure Act require of the
courts that the dispute resolution process be fair, expeditious and cost-effective
with proportionate use of judicial resources. Engaging two courts of concurrent
jurisdiction to deliberate on the same or similar issues is not proportionate
utilization of judicial resources but rather wasteful duplication which is bound to
create uncertainty as to the binding effect of either court’s decision in the event of
conflict.’’
In the case of Law Society of Kenya v Centre for Human Rights and Democracy and 12
others220 the Supreme Court defined when cases would be consolidated:
“The essence of consolidation was to facilitate the efficient and expeditious disposal of
disputes, and to provide a framework for a fair and impartial dispensation of justice to the
parties, consolidation was therefore never meant to confer any undue advantage upon the
party that sought it, nor to occasion any disadvantage towards the party that opposed it.’’

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I have only set out a few of the pertinent issues dealt with by the Mutunga Rules. It
is important to read them in the entirety to appreciate their gist and be armed with
the knowledge of what is required when preparing and arguing the constitutional
petition.
Let me now address the various aspects of Constitutional issues that have been
dealt with by the courts. This exposition is but a drop in the sea of constitutional
jurisprudence.

4.5 The High Court

Article 165 of the Constitution is the starting pointing in appreciating the powers of
the court to deal with the aspect of breach of fundamental rights. It reads:

165. High Court

(1) There is established the High Court, which—
(a) shall consist of the number of judges prescribed by an Act of Parliament;
and
(b) shall be organised and administered in the manner prescribed by an Act of
Parliament.
(2) There shall be a Principal Judge of the High Court, who shall be elected by the
judges of the High Court from among themselves.
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental
freedom in the Bill of Rights has been denied, violated, infringed or
threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under
this Constitution to consider the removal of a person from office, other
than a tribunal appointed under article 144;
(d) jurisdiction to hear any question respecting the interpretation of this
Constitution including the determination of—
(i) The question whether any law is inconsistent with or in
contravention of this Constitution;
(ii) the question whether anything said to be done under the authority
of this Constitution or of any law is inconsistent with, or in
contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect
of county governments and any matter relating to the constitutional
relationship between the levels of government; and
(iv) a question relating to conflict of laws under article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
(4) Any matter certified by the court as raising a substantial question of law under
clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less
than three, assigned by the Chief Justice.
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this
Constitution; or
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262 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(b) falling within the jurisdiction of the courts contemplated in article 162(2).
(6) The High Court has supervisory jurisdiction over the subordinate courts and over
any person, body or authority exercising a judicial or quasi-judicial function, but
not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any
proceedings before any subordinate court or person, body or authority referred to
in clause (6), and may make any order or give any direction it considers appropriate
to ensure the fair administration of justice.

4.6 When Does one Seek an Uneven Number of Judges to Hear a

Constitutional Petition?
Article 165(4) of the Constitution provides that:
“Any matter certified by the court as raising a substantial question of law under clause (3)
(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned
by the Chief Justice.”

It is not every petition that warrants the empanelling of a bench comprising an uneven
number of judges. One must appreciate the meaning of what entails a substantial
question of law before engaging in a time wasting activity of seeking several judges
to hear the matter. Judges are few and every time they are taken away to hear
constitutional matters the progressive hearings of several matters in their respective
divisions are severely disrupted.
In the case of Mohan Galot and another v Attorney General and 4 others,221 Justice
Mumbi considered the issue of “substantial question of law” and held as follows:
“This court has had occasion to consider what a “substantial question of law”
means, and the circumstances under which a referral to the Chief Justice ought
to be made for empanelling of a three-judge bench. In the case of Hon. Mr. Justice
Chemuttut and others v the Attorney General, Petition No 307 of 2012 unreported,
Majanja, J express himself at paragraphs 8 and 9 of his ruling as follows:
[8] The Constitution does not define, “substantial question of law.” It is left to each
High Court judge to satisfy himself or herself that the matter is substantial to
the extent that it warrants reference to the Chief Justice to appoint an uneven
number of judges not being less than three to determine a matter. In Chunilal v
Mehta v Century Spinning and Manufacturing Co. AIR 1962 SC 1314, the Supreme
Court of India, after considering a number of decisions on the point, laid down
the following test for determining whether a question of law raised in the case
is a substantial question of law or not. It stated, “the proper test for determining
whether a question of law raised in the case is substantial would be whether it is of
general public importance or whether it directly or substantially affects the rights
of the parties and if so, whether it is either an open question in the sense that it
is not finally settled by the Supreme Court or by the Privy Council or is not free
from difficulty or calls for discussion of alternative views. If the question is settled
by the Highest Court or the general principles to be applied in determining the
questions are well settled and there is more question of applying these principles
or the plea raised is palpably absurd, then the question would not be a substantial
question of law” …

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[9] If I were to accept the above dicta, then it would follow, that every question
concerning our Constitution would be a substantial question of law. Each case
that deals with the interpretation of the Constitution or our expanded bill of
rights would be a substantial question of law as it is a matter of public interest,
affects the rights of the parties, is fairly novel and has not been the subject of
pronouncement by the highest court. This would burden judicial resources to the
extent that the value of obtaining justice without delay under article 159(2)(b) of
the Constitution would be imperilled.”

4.7 Do not file a Constitutional Petition Where Other Remedies

Lie
The courts have refused to consider petitions alleging breach of fundamental rights
when alternative remedies exist in statutes governing tort, contract and pension.
In the case of Abraham Kaisha Kanzika v Governor Central Bank of Kenya and others,222
Justice Nyamu (as he then was) held [see pages 36-37]:
“On the facts of this case although the existence of an alternative remedy is no bar to the
enforcement of a right under section 84(1) of the Constitution there is no such alternative
in that the so-called constitutional right is in reality a contractual right if any, and is already
time barred and there is no constitutional issue capable of being articulated under section
84(1) because there is no constitutional claim nor a compulsory acquisition at all. Our
Constitution has not and was not intended to create commercial or contractual rights,
instead it secures and guarantees existing constitutional rights [see page 33].

‘In this regard I would like to adopt the holdings in Tanzanian case of Ndyanabo v Attorney
General [2001] 2 EA 485 at page 498 by Samatta C.J.

“Fundamental rights are not illimitable. To treat them as being absolute is to invite
anarchy in society. Those rights can be limited but the limitations must not be arbitrary,
unreasonable and disproportionate to any claim of state interest: see Pumbun’s case (supra).
Under the Constitution an individual’s fundamental right may have to yield to the
common weal of society ...”

The Supreme Court in the case of Communications Commission of Kenya and 5 Others v
Royal Media Services Limited and 5 others223 considered, inter alia, whether a case involving
the violation of intellectual property rights could be addressed by a petition to enforce
fundamental rights and freedoms.

“The principle of constitutional avoidance entailed that a court could not determine
a constitutional issue when such a matter could properly be decided on another
basis. The 1st, 2nd & 3rd respondents claim in the High Court, regarding infringement
of intellectual property rights was a plain copyright – infringement claim, and it was
not properly laid before that court as a constitutional issue. That was therefore not a
proper question falling to the jurisdiction of the appellate court.’’

Most Constitutions provide for allocation of government power-this is the root and
the trunk of the living tree. Contractual and commercial transactions belong to other
different but smaller living trees. They cannot be naturally grafted into the living tree i.e.

222 [2006] eKLR

223 [2014] EKLR
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264 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

the Constitution. The court can only graft in what is not constrained by the language,
structure and history of the constitutional text, by constitutional traditions, by history and
by the underlying philosophies of our society. This court has declined to overshoot or
graft in, as invited to by the applicant. The claim is misconceived.’’

Justice Nyamu [as he then was] addressed the issue of limitation as follows:
“(3) The final reason why this claim must fail is that under section 70 the individual
right is subject to public interest. Public interest includes observation of laws
including the Limitation of Actions Act and the Public Authorities Limitation
Act and the general principles of law except where they are inconsistent with a
particular provision in the Constitution.
Moreover, I would also disallow this claim on the principle of legal certainty. The
applicant/plaintiff sat on his commercial or contractual rights (if any) for 17 years
and his new attempt to seek constitutional relief violates the principle of legal
certainty. It would be unjust to revive the matter after such a long period and
deny the state defences which would have been available to it. In this regard, I
wish to adopt Lord Brightman’s illuminating holding in the case of Yew Bon Tew v
Kende Ram Bas Mara [1983] AC 553 at 563 where he delivered himself as follows:
“When a period of limitation has expired a potential defendant should be able
to assume that he is no longer at risk from a stale claim. He should be able
to part with his papers, if they exist and discard any proofs of witnesses which
have been taken, discharge his solicitors for if he has been retained and order
his affairs on the basis that his potential liability has gone.”
The Bills were issued pursuant to an Act of Parliament and according to the
applicant they were issued under the Internal Loans Act, Chapter 420 (LOK).
Their enforcement and recovery are already regulated by statute and the applicant
has not explained why he did not enforce the bill under the relevant statutes.
Failure to do so does in my view violate the rule of law which is one of the pillars
of the Constitution. Our Constitution must therefore recognize the applicable
statute. The words of Lord Diplock in the case of Black-Clawson International Ltd
v Papierwerke Waldhof – Aschaffenberg AG 1975 AC 591 at 638 are pertinent:
“The acceptance of the rule of law as a constitutional principle requires that
a citizen before committing himself to any course of action, should be able to
know in advance what are the legal consequences that will flow from it. Where
those consequences are regulated by statute the source of that knowledge is
what the statute says. In construing it the court must give effect to what the
words of the statute would reasonably understood to mean by those whose
conduct it regulates.”
Justice Lenaola dealt with this issue in the case of Patrick Mbau Karanja v Kenyatta
University.224 The Petitioner was an employee and student who raised the issue whether
the decision by the respondent to suspend him for one year from his MBA Programme
was done within the expectations of the Constitution and whether articles 27(1), 43(1)
(f) and 47 of the Constitution 2010 were specifically breached. The judge dismissed
the petition and held, inter alia,
“24. I should only say this as I conclude; in Francis Waithaka v Kenyatta University Petition
No. 633 of 2011, this Court was categorical that it is imperative that the Bill of
Rights and the Constitutional interpretative mandate of this Court should not
be invoked where other remedies lie. Further, the Court also cited with approval,

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the decision in Teitinnang v Ariong [1987] LRC (Const.) 517 where it was held as
follows;
“Dealing now with the question, can a private individual maintain an action
for declaration against another private individual or individuals for breach of
fundamental rights provisions of the Laws? The rights and duties of individuals, and
between individuals, are regulated by private Laws.The Constitution, on the other
hand, is an instrument of government. It contains rules about the government of
the country. It is my view, therefore that the duties imposed by the Constitution
under the fundamental rights provisions are owed by the government of the day,
to the governed. I am of the opinion that an individual or group of individuals,
as in this case, cannot owe a duty under the fundamental rights provisions to
another individual so as to give rise to an action against the individual or group of
individuals. Since no duty can be owed by an individual or group of individuals to
another individual under the fundamental rights provisions of the Constitution, no
action for a declaration that there has been a breach of duty under that provision
can lie or be maintained in the case before me, and I so hold.”
25. I maintain this position and it is important that simple matters between individuals
which are of a purely civil or criminal nature should follow the route of article
165(3)(a) and be determined as such.To invoke the Bill of Rights in matters where
the state is not a party would certainly dilute the sanctity of the Bill of Rights.’’

4.7.1 Petition Dismissed as Remedy Provided for in the Political Parties

Act, Act No. 11 of 2011
Justice Majanja dismissed a petition in the case of Paul Partoire Ole Kaika v Orange
Democratic Movement.225 In this case the petitioner filed a constitutional petition
following the alleged irregularities in the process of election and that his political
rights protected under the Constitution had been violated. The court held:
“The law relating to political parties finds firm footing in the Constitution where
Parliament is empowered by Article 92 to enact legislation for, inter alia, “matters necessary
for the management of political parties.”This includes the manner in which party disputes
are to be settled. This framework is part of the entire scheme of laws among them the
Elections Act, 2011 and others that regulate political conduct. It can hardly be said
therefore that regulation of political conduct by statute, of itself, violates article 38 but
rather gives effect to its provisions.
This means that the invocation of a dispute resolution procedure is not inconsistent with
the right of access to the court guaranteed and in article 22.The dispute resolution process
provided is also consistent with the provisions of article 159(2)(c) of the Constitution
which obliges the courts to promote alternative dispute resolution. It is against this
background that our Courts have established the principle that where the Constitution
and or statute establish a dispute resolution procedure, then that procedure must be used.
This principle has been emphasized time and again in a long line of cases; The Speaker of
The National Assembly v the Hon James Njenga Karume, Civil Application No. 92 of 1992
(Unreported), Kipkalya Kiprono Kones v Republic and another ex-parte Kimani Wanyoike and
4 Others, (2008) 3 KLR (EP) 291, Wanyoike vs Electoral Commission of Kenya (No. 2)
[2008] 2 KLR (EP) 43, Francis Gitau Parsimei v National Alliance Party and another, Nairobi
Petition No. 356 of 2012 [2012] eKLR. In relation to the respondent’s election the same
principle was upheld in Stephen Asura Ochieng’ and others v Orange Democratic Movement and
others Nairobi Petition No. 288 of 2011 (Unreported).

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266 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In my view, therefore, this case being one between a member and a political party falls
strictly within the jurisdiction of the Political Parties Tribunal under section 40(1)(b)
of the Act. The entertainment of such complaints by the Court is the exception rather
than the rule even when such a dispute is couched as a case concerning enforcement of
fundamental rights, it is one that is in reality a party dispute and as I have stated, it is the
political rights that are given effect by the statute made pursuant to the Constitution.

4.7.2 If Statute Provides for an Appeal before a Tribunal, Exhaust your

Remedy there before Moving to the High Court
The Court of Appeal in the case of Vania Investments Pool Limited v Capital Markets
Authority and others226 dismissed an appeal arising from a decision of the High Court
dismissing a judicial review application. The High Court had held that the appellant
should have pursued its claim before the CMA tribunal, a statutory tribunal mandated
to hear appeals from decisions of the 1st respondent and not by way of Judicial Review;
“In this case, the appellant pleads that it did not move to the CMA Appeals Tribunal
because the same was not quorate.The lack of quorum of the Tribunal is acknowledged by
the respondents. According to the 1st respondent, however, the appellant should have either
moved to the High Court for the Judicial Review orders within the statutory timelines
set out in the Capital Market Act, or filed the appeal in the Tribunal and thereafter filed
an application seeking orders of mandamus compelling the relevant Minister to appoint
members of the Tribunal. The appellant did neither of the above. Instead, it sought the
Judicial Review orders long after the expiry of the 15 days provided for in the Act within
which an aggrieved party must challenge an order issued by the 1st respondent. This delay,
according to the 1st respondent, cannot be countenanced.

As to whether the appellant should have moved to the Tribunal though well aware of its
challenge as far as the quorum was concerned, we note that indeed the 3rd respondent
did move to the Tribunal, and thereafter to the High Court for orders of mandamus. That
demonstrates a plausible option for the appellant as well. Would it have been efficacious?
We think so, as the appellant would have demonstrated that he had gone for Judicial
Review as a last resort and this could have worked in his favour. As observed by the learned
Judge, we also observe that indeed the appellant moved to the court after the deadline set
out in the regulations allowing it to move the Tribunal, and that was actually the delay
the learned judge was referring to in his ruling. We agree with the learned Judge that the
appellant failed to demonstrate that the circumstances of its case qualified as exceptional
to warrant a hearing by way of Judicial Review before the statutory procedure had been
exhausted. Grounds one and two must therefore fail.’’

The lessons learnt in the above cases are:

1. Do not delay when encountered with statutory timelines.
2. If a tribunal is not quorate, file the appeal and then move the court to seek stay
orders and mandamus compelling the appointing authority to act and appoint the
missing board member.
3. Use the dispute resolution mechanisms provided for by the relevant statute before
moving to the High Court. One can only move to the court if the tribunal lacks
jurisdiction to grant certain relief.
4. Do not mix up private remedies and elevate them to breaches of fundamental
rights.

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4.8 Only Apply to Join in a Suit if you have a Genuine Interest in

the Outcome

The Supreme Court addressed the instances when a party would be allowed to be
enjoined in proceedings. This was in the case of Trusted Society of Human Rights Alliance
v Mumo Matemo and 5 others227where it held:
1. An interested party was one who had a stake in the proceedings, though they
were not initially a party to the cause. Such a person felt that their interest would
not be well articulated unless they themselves appeared in the proceedings, and
championed their cause. On the other hand, amicus curiae was only interested in
the Court making a decision of professional integrity.
2. LSK had manifested its partisan support for the 1st respondent, and on this account
it was improper for it to be enjoined as an interested party and much less, as amicus
curiae. Given LSK’s objectives under section 4 of the Law Society of Kenya Act,
the Society held a special responsibility for championing the wider public interest,
rather than individual interests clothed as public interest.
3. A suit in Court was a solemn process owned solely by the parties. This was the
reason why there were laws and rules, under the Civil Procedure Code, regarding
parties to a suit. A suit could be struck out if a wrong party was enjoined in it.
Consequently, where a person not initially a party to a suit was enjoined as an
interested party, this new party could not be heard to seek to strike out the suit,
on the grounds of defective pleadings.

4.9 Right To a Fair Trial and Due Process

Article 50 expressly provides, inter alia, that a person enjoys the benefit of the less
severe penalty. The relevant portions read:
“50. Fair hearing (1) Every person has the right to have any dispute that can be resolved
by the application of law decided in a fair and public hearing before a court or, if
appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—
(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(p) to the benefit of the least severe of the prescribed punishments for
an offence, if the prescribed punishment for the offence has been
changed between the time that the offence was committed and the
time of sentencing; and…’’

4.9.1 Does the Right to A Fair Trial Extend to Disciplinary Hearings

Instituted by the Employer?
The Industrial Court invariably slaps an employer with damages of up to 12 months
for not carrying out a disciplinary hearing. In another paper the writer wrote, he has
argued that this is unconstitutional.228

227 [2014] EKLR

228 An Overview of Topical Issues in Employment Law (2014) presented at various CPD seminars.
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268 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

This pertinent issue was addressed by the Court of Appeal in the case of Judicial
Service Commission v Gladys Boss Shollei and another.229 The court observed as follows:
1. The right to a fair trial is of course one of the inalienable, non-derogable super-
rights and fundamental freedoms protected from abrogation or limitation under
article 25 of the Constitution. It is in a special category that cannot be constricted
or denied regardless of any other provision of the Constitution and regardless of
circumstances. As long as our Constitution endures, it never can be permissible that
the right to a fair trial can be denied, suspended or in any other way limited.
2. This right to fair hearing as enshrined in article 50(1) relates to legal proceedings
in courts and other judicial tribunals. There is nothing in the constitutional text
that suggests that the right applies to internal disciplinary hearings whether or not
they should lead to dismissal, touching on the conduct of an employee. Employers
and their disciplinary panels are not courts or judicial tribunals and it is therefore a
huge misdirection to assess their conduct of disciplinary hearings using the judicial
paradigm.
3. As to the application of article 50(2) of the Constitution, which is the content
and essence of the right to a fair trial envisaged in article 25, I wish to state quite
categorically that it relates solely to criminal proceedings before a court of law and
has absolutely no application in an employee’s disciplinary hearing. It definitely
does not apply to the removal or suspension of a Chief Registrar of the Judiciary
under section 12 of the Judicial Service Act, 2011. That much is clear from the
sub-article itself which states in language too plain for mistaking:

4.9.2 Duplex Charge Sheets

Kengeles Holdings Ltd v Republic.230 Justice Ojwang (as he then was) delivered an epic
ruling on duplex charges. In this case, the City Council of Nairobi had a charge
whose offence was strictly under the subsidiary legislation under section 14(e) of the
City Council’s Foods, Drugs and Chemical Substances (General) Regulations, which
regulations prescribe a penalty of KShs. 2,000 but the charge was framed to attract
the general penalty of up to KShs 500,000. The City Council had produced standard
charge-sheets that were indifferent to the distinction in the levels of penalty between
sections 14(e) of the Regulations and section 36 of the Act, the effect of which:
“Counsel submitted that section 77(4) of the Constitution accorded the applicant
protection against retroactive penalties; but that the said duplicity in the charge, would
subject the applicant to punishment created by provisions coming subsequent to the
alleged commission of the offence. The duplex form of the charge-sheet, counsel urged,
would subject the applicant to a penalty that was not defined in written law, contrary to
section 77(8) of the Constitution; and in the present form, a plea of guilty could lead to
a fine of KShs. 500,000.

Learned Counsel called in aid past judicial decisions. In Kasyoka v Republic [2003] KLR
406 the High Court (Mbaluto, J.) had thus held (page 406):

“Considering the nature of the offence with which the appellant was charged, what the
learned Magistrate stated was not sufficient to identity which offence the appellant had
been convicted of.”

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230 [2009] EKLR
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“The appellant was convicted on a duplex charge and no one can state for sure which
of the two offences he had committed. Such conviction should not be allowed to stand”.

Learned respondent’s Counsel, Mrs. Gakobo, conceded that the charges in question were
marked by duplicity and so, could not stand. She urged that the offences in question were
punishable under Reg. 17 of the Food, Drugs and Chemical Substances Regulations; and
so a charge could not at the same time be brought under section 36 of the Act which
provided for higher penalties; and there was thus, duplicity in the charges which would
prejudice the applicant.

It is clear that the manner in which the charges have been framed, invited the application
of different penalties, of profoundly differing gravity; and thus there is a duplicity in the
charges. Charges of such a kind will inevitably limit the scope for defense, and in this way,
they stand in contradiction to the applicable provisions of the Constitution – notably
those set out in section 77.

This Court intervenes by quashing the charge and the proceedings so far conducted by
the trial Court. It is directed that the charge-sheets shall be amended to remove the scope
for duplicity in the penalties, in the manner indicated in this ruling; and any further trial
proceedings shall proceed on that basis.’’

The Court of Appeal in the case of Cherere s/o Gukuli v Republic231 addressed the
instance of an accused who did not know what offence he was charged with. The
Court of Appeal held:
‘It is, indeed, very difficult to say that a breach of an elementary principle of criminal
procedure has not occasioned a failure of justice.’

In the case of Republic v Fairview Hotel232 Justice Ochieng held as follows:

“Regulation 319 provides that any person who contravenes the provisions of the
regulations shall be guilty of an offence. The said regulation stipulates the sentences
attached to the infringement of any such regulations.

In so far as the substance of the offences allegedly committed by the applicant is spelt out
under the regulations; which regulations stipulate the applicable penalties, l find and hold
that it is irregular to draw up charges purporting to found the same under the substantive
provisions of the Act.

Section 36 of the Act only comes into play when no special penalty is provided for in
respect of specific offences. To that extent I find that the decision by the respondent to
draw up the charges in the manner it has done, offends the spirit of the law. I direct that
the said charges be withdrawn forthwith, and that they be reframed in accordance with
the provisions of section 137 of the Criminal Procedure Code.’’

4.9.3 When will a Court Interfere with a Criminal Investigation?

The issue at hand in most cases is the complaint that the criminal process is being
used to bring about undue pressure in a civil matter. The court is asked to carry out a

231 (1955) 22 EACA 478

232 [2011] eKLR
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270 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

balancing act between upholding a citizen’s fundamental rights and the power of the
police to carry out their investigations.
The courts have come up with various indicators to determine if the criminal
process is being abused.
Justice Odunga addressed this conundrum in the case of Giro Commercial Bank v
Director of Public Prosecutions and others233 where he held:
“Therefore the determination of this case must be seen in light of the foregoing decisions.
However, before going to the merits of the instant application it is important to note
that what is sought to be prohibited is the continuation of investigation rather than a
criminal trial. The Court must in such circumstances take care not to trespass into the
jurisdiction of the investigators or the Court which may eventually be called upon to
determine the issues hence the Court ought not to make determinations which may
affect the investigations or the yet to be conducted trial. That this Court has power to
quash impugned warrants cannot be doubted. However, it is upon the ex parte applicant
to satisfy the Court that the discretion given to the police to investigate allegations of
commission a criminal offence ought to be interfered with. It is not enough to simply
inform the Court that the intended trial is bound to fail or that the complaints constitute
both criminal offence as well civil liability. The High Court ought not to interfere with
the investigative powers conferred upon the police or the Director of Public Prosecutions
unless cogent reasons are given for doing so.’’

In Meixner and another v Attorney General,234 the Court expressed itself as hereunder:
“The Attorney General has charged the appellants with the offence of murder in the
exercise of his discretion under section 26(3) (a) of the Constitution.The Attorney General
is not subject to the control of any other person or authority in exercising that discretion
(section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the
exercise of the discretion if the Attorney General, in exercising his discretion if acting
lawfully. The High Court can, however, interfere with the exercise of the discretion if the
Attorney General, in prosecuting the appellants, is contravening their fundamental rights
and freedoms enshrined in the Constitution particularly the right to the protection by law
enshrined in section 77 of the Constitution....A decision can be upset through certiorari
on a matter of law if on the face of it, it is made without jurisdiction or in consequence
of an error of law. Prohibition restrains abuse or excess of power. Having regard to the
law, the finding of the learned Judge that the sufficiency or otherwise of the evidence to
support the charge of murder goes to the merits of the decision of the Attorney General
and not to the legality of the decision is correct. The other grounds, which the appellants
claim were ignored ultimately, raise the question whether the evidence gathered by the
prosecution is sufficient to support the charge. The criminal trial process is regulated by
statutes, particularly the Criminal Procedure Code and the Evidence Act. There are also
constitutional safeguards stipulated in section 77 of the Constitution to be observed in
respect of both criminal prosecutions and during trials. It is the trial court, which is best
equipped to deal with the quality and sufficiency of the evidence gathered to support
the charge. Had leave been granted in this case, the appellants would have caused the
judicial review court to embark upon examination and appraisal of the evidence of about
40 witnesses with a view to show their innocence and that is hardly the function of the
judicial review court. It would indeed, be a subversion of the law regulating criminal trials
if the judicial review court was to usurp the function of a trial court.”

233 [2014] eKLR

234 [2005] 2 KLR 189- applied by Justice Odunga in the Giro Commercial Bank, supra.
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In Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee and another,235 it was
held:
“It is not the purpose of a criminal investigation or a criminal charge or prosecution to
help individuals in the advancement of frustrations of their civil cases. That is an abuse
of the process of the court. No matter how serious the criminal charges may be, they
should not be allowed to stand if their predominant purpose is to further some other
ulterior purpose. The sole purpose of criminal proceedings is not for the advancement
and championing of a civil cause of one or both parties in a civil dispute, but it is to be
impartially exercised in the interest of the general public interest. When a prosecution
is not impartial or when it is being used to further a civil cause, the court must put
a halt to the criminal process. No one is allowed to use the machinery of justice to
cause injustice and no one is allowed to use criminal proceedings to interfere with a fair
civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive
or vexatious, prohibition and/or certiorari will issue and go forth... When a remedy is
elsewhere provided and available to a person to enforce an order of a civil court in his
favour, there is no valid reason why he should be permitted to invoke the assistance of
the criminal law for the purpose of enforcement. For in a criminal case a person is put in
jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe
the respondent by brandishing at him the sword of punishment thereunder, such an object
is unworthy to say the least and cannot be countenanced by the court... In this matter
the interested party is more actuated by a desire to punish the applicant or to oppress him
into acceding to his demands by brandishing the sword of punishment under the criminal
law, than in any genuine desire to punish on behalf of the public a crime committed. The
predominant purpose is to further that ulterior motive and that is when the High Court
steps in... In this case it is asked to step in to grant an order of prohibition. Prohibition
looks into the future and can only stop what has not been done. It is certiorari that would
be efficacious in quashing that which has been done but it is not prayed for in this matter.
There was no order granted for stay of further proceedings when leave was granted and it
is possible that the private prosecution has proceeded either to its conclusion or to some
extent. In the former event an order of prohibition has no efficacy and the court would
be acting in vain to grant one. What is done will have been done. If there is anything that
remains to be done in those proceedings, however, the order of prohibition will issue to
stop further proceedings.”

4.9.4 When will the Court Stop the Criminal Process?

Investments and Mortgages Bank Limited (i & m) v Commissioner of Police and the Director
of Criminal Investigations Department and DPP; and 2 others236
The 1st interested party (Lalchand Fulchand Shah) had initiated an investigation upon
the petitioner regarding a charge that was in favour of the petitioner. He claimed that
a search carried out by his advocates revealed that the charge document at the Land
Registry materially differed from the one filed in court hence he was concerned that
some form of fraud must have been perpetrated by the advocates who prepared the
charge.
The petitioners (I&M Bank) sought to have the investigations stopped. The
petitioner contended that a civil right or obligation could not be determined in a

235 [2002] 2 KLR 703

236 [2013] eKLR
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272 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

criminal court in view of article 50 of the Constitution which protects the right to
a fair hearing. It argued that the continued investigation would affect the fair trial of
the pending civil suit and that the matter could not be litigated in a criminal court,
and that any attempt to do so would violate its fundamental rights and freedoms
particularly because the matter had been subject of decisions in the High Court and
Court of Appeal.
Justice Majanja in allowing the petition held as follows:
“1. It was within the respondents’ mandate to investigate crimes where there is
reasonable basis of commission of offence and that in performance of their duties,
they are independent institutions.
2. The office of the Director of Public Prosecutions established under article 157 of
the Constitution of Kenya, 2010 is an independent office which is empowered to
conduct its duties free from any influence or control by any authority. Its actions
must be within the law and in accordance with what the Constitution dictates. One
such dictate is that in the exercise of their powers, it must “have regard to the public
interest, the interests of the administration of justice and the need to prevent and
avoid abuse of the legal process.”
3. The validity or otherwise of the charge was directly the subject of a pending civil
suit. The criminal process sought to investigate possible fraud in connection with
the same charge was a roundabout way of having the matter subject of the civil suit
determined in another forum.
4. No allegations of fraud had been made directly against the petitioner and it would
be an abuse of process for it to be exposed to the criminal investigations especially
in view of the previous court rulings and the pending civil matter which has clearly
confirmed the petitioner’s position in the matter.
5. Allowing criminal investigations to go on would in effect be prying into an issue
that had been decided by a court of competent jurisdiction. The course taken by
the respondents would likely undermine the case already pending in the civil courts
and in addition to compromising on the right to fair hearing guaranteed under
article 50.
6. It is the duty of the court to ensure that its processes are not abused or otherwise
used to perpetuate injustice or for improper motives. Therefore, the court must act
swiftly to stop the move on its tracks particularly in light of the clear decisions that
have emanated from the courts. If there were any fresh issues relating to the charge
or any document relating to the suit property, they should be raised in the civil case
which is capable of dealing with them.’’

4.9.4.1 Criminal Process Being used in a Coercive Manner to Collect Revenue

Republic v Nairobi City Council and 2 others Ex-Parte Barclays Bank of Kenya Limited237 -
In this case the bank was charged with failing to pay advertisement revenue when
in fact it has contracted an independent party to pay the City Council the requisite
licenses for advertisement. The court held as follows:
“The bank argues that failure to pay advertisement revenue is not defined in the Act as
an offence, but that it only appears as so in the Local Government (Adaptive By-laws)
(Building) Order 1968, yet the charge sheet refers to the offence allegedly committed
under the Act. A perusal of the charge sheet reveals that the charge is duplex, for the
simple reason if found guilty, the bank stands to suffer a multiplicity of penalties, which

237 [2011] eKLR

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thus renders it defective for the law requires that there be clarity and that an accused
person be certain of the consequences of what crime he is alleged to have committed. I
agree with the finding in the case of Kengeles Holdings Ltd v Republic, Criminal Revision
No. 36 of 2008, where Ojwang J. held that “the manner in which the charges have been
framed, invites the application of different penalties, of profoundly differing gravity and
thus there is duplicity in the charges. Charges of such a kind will inevitably limit the scope
for defence, and in this way, they stand in contradiction to the applicable provisions of
the constitution notably those set out in section 77. The court intervenes by quashing the
charge and the proceedings so far conducted by the trial court.”The same principle ought
to apply in this matter.

All in all, and in addition to the above findings I also find that the bank was not furnished
with a notice as required, nor was it accorded an audience before the charges were
preferred, which omission obviously means that it was condemned unheard, contrary to
the principles of natural justice which dictate that no man shall be condemned unheard.

In view of the above, I am convinced that the Council is simply using the criminal
process as a means of intimidating the bank to pay for advertisement revenue, which
situation cannot be sustained for “it is not the purpose of a criminal investigation or a
criminal charge or prosecution to help individuals on the advancement or frustration
of their civil cases. That is an abuse of the process of the court. No matter how serious
the criminal charges may be, they should not be allowed to stand if their predominant
purpose is to further some ulterior purpose. The interested party in this matter was more
actuated by desire to punish the applicant or to oppress him into acceding to his demand
by brandishing the sword of punishment under criminal law, than in any genuine desire
to punish crime on behalf of public.The predominant purpose was to further the ulterior
motive which the High Court could not allow” (R v Chief Magistrates Court Mombasa Ex-
Parte Ganijee and another [2002] 2 KLR 703).

The rules of natural justice are fundamental and are a cushion to ensure that public
bodies do not take decisions at their whims to the detriment of those affected.’’

4.9.4.2 Non-disclosure of Offence or Non-Existent Offence

Barclays Bank of Kenya v City Council of Nairobi238 Justice Wendo allowed a judicial
review application and held as follows:
“The particulars of the charge are that the applicant failed to repaint the premises
operating as a bank both internally and externally. Section 115, which prohibits nuisances
provides as follows

“No person shall cause a nuisance or shall suffer to exist on any land or premises owned
or occupied by him or of which he is in charge any nuisance or other condition liable to
be injurious or dangerous to health.”

Section 118 of the same Act sets out what constitutes a nuisance.

Section 118(1)(l) and (s) under which the applicant is charged provide as follows:

(1) Any public or other building which is so situated, constructed, used or kept as to be
unsafe, or injurious or dangerous to health

238 [2005] eKLR

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274 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(2) Any act, omission or thing which is, or may be, dangerous to life or injurious to
health.
For the above offences to be proved, the following ingredients must exist, the
premises have to be unsafe; dangerous to health; dangerous to life or injurious
to health. The offence the applicant committed is failing to repaint the premises.
Failing to repaint premises cannot be unsafe, injurious to health or to life or
injurious to health. The charge as framed does not disclose any offence. If there is
an offence as failing to redecorate, maybe that would have been the correct charge
to prefer against the applicant. Besides there is not a shred of evidence contained in
Lucy Kamau’s affidavit showing the nature of the nuisance or what injury or danger
it posed to the public. The specific areas that needed repainting were not pointed
out. I therefore hold that the charge which the applicant faced was fatally defective
and the charge does not disclose any offence known under sections 115 and 118 of
the Public Health Act.’’
This issue was addressed it the case of Uganda v Keneri Opidi239 where the charge sheet
cited a non-existent sub-section of the Traffic Ordinance. The court held (see page 5
holding ii):
‘The error was a fundamental one of law in that the accused was charged with a non-
existent offence and was not curable by section 347 of the Criminal Procedure Code.’

4.9.4.3 Charge Brought for Collateral Purpose

Ndarua v Republic240. In this case Justices Rimita and Ombijah considered a charge that
had been brought for a collateral purpose.
The court held (see page 21):
‘The prosecution of the applicant was not in good faith and was a way of someone
paying for the misdeed of someone else. There was no reason why the other officials of
the corporation had not been charged for the loss of the money. The Court had power to
issue a prohibition against the prosecution where the prosecution was made mala fide and
as an abuse of the process of the Court.’

Tirop v Attorney General.241 The accused filed a judicial review application founded,
inter alia, on the grounds that the prosecution was without criminal intent and
was oppressive and an abuse of the court process. The court allowed the order for
prohibition and held (see page 27):
‘The situations under which a trial can be said to be unfair and oppressive are several
namely:

(a) Where there is absolutely not iota of evidence.

(b) Where it is selectively mounted as to amount to a persecution for ulterior motives.
Each case must therefore be considered on its own facts.’

239 [1965] E.A 614

240 [2002] 1 EA 205
241 [2002] 2 KLR 165
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4.9.4.4 Breach of Rules of Natural Justice- not Following Due Process

Githui v Public Health Officer242 at page 652, the court considered the effect of failing to
comply with the mandatory provisions of sections 119 and 120 of the Public Health
Act where no notice of abatement of nuisance had been given. Justice Okwengu held
(see page 18):
‘First a notice should be served on the author of the nuisance …to remove the nuisance
within a specified time. In this case none of the above mandatory requirements were
complied with. A peculiar procedure was adopted with the result that the appellant was
condemned without being given any hearing. The trial magistrate erred in failing to
comply with the mandatory legal provisions and also in acting contrary to the rules of
natural justice.’

4.10 Duty of Public Officers to Follow Judicial Decisions

Power Technics Limited v the Hon. Attorney General and 2 others243 was a case where Justice
Majanja strongly admonished the respondents for persisting in revoking titles by way
of degazettement when various high court decisions had held that this was both illegal
and unconstitutional. The court held as follows:
“27. I would be remiss if I did not comment on the actions by the Registrar of Lands. In
the case of Kuria Green Limited v Registrar of Titles and Commissioner of Lands (supra),
the Gazette Notice that was revoked by the court was dated 10 November 2010
and signed by G A Gachihi, the Registrar of Titles, and Nairobi. The judgment
declaring such action unconstitutional was delivered on 14 June 2011. A declaration
of unconstitutionality is a declaration of the legal status of the impugned action.
Instead of acting in accordance with the directions of the court, the self-same
Registrar continued to issue similar Gazette Notices.
28. In fact in Sound Equipment Limited v Registrar of Titles and Commissioner of Lands
(Supra), apart from making the finding, the court had already declared Gazette
Notice Number 3640 unconstitutional null and void. I would have expected that
in the face of two clear decisions of the High Court, the Registrar would have
reviewed his decision to continue revoking titles by way of Gazette Notice and
acted in deference to the decisions of the Court.
29. This action is clearly contemptuous of the decisions of the court. The court, particularly the
High Court, is given responsibility by the Constitution under Article 165 to interpret the
Constitution and declare what the law is and in addition to enforce fundamental rights and
freedoms. It is expected that in this dispensation that values the rule of law, public officers and
their legal advisers, that is the Office of the Attorney General, will ensure that all State and
public officers not only acquaint themselves with the directions and decisions of this court but
also follow then to the letter. I must warn State officers and public officers that this is the kind
of conduct that may invite the court to invoke the provisions Chapter 6 of the Constitution
and making appropriate declarations. It is for this reason that I have am constrained to make
the orders (a) and (g). [emphasis mine].’’

4.11 Protection of Right to Property

Article 40 of the Constitution addresses the right to property as follows:
Protection of right to property

242 KLR (E & L)

243 [2012] eKLR
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276 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(1) Subject to article 65, every person has the right, either individually or in association
with others, to acquire and own property—
(a) of any description; and
(b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person—
(a) to arbitrarily deprive a person of property of any description or of any interest
in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this article
on the basis of any of the grounds specified or contemplated in article 27(4).
(3) The State shall not deprive a person of property of any description, or of any
interest in, or right over, property of any description, unless the deprivation—
(a) results from an acquisition of land or an interest in land or a conversion of an
interest in land, or title to land, in accordance with Chapter Five; or
(b) is for a public purpose or in the public interest and is carried out in accordance
with this Constitution and any Act of Parliament that—
(i) requires prompt payment in full, of just compensation to the person;
and
(ii) allows any person who has an interest in, or right over, that property a
right of access to a court of law.
(4) Provision may be made for compensation to be paid to occupants in good faith of
land acquired under clause (3) who may not hold title to the land.
(5) The State shall support, promote and protect the intellectual property rights of the
people of Kenya.
(6) The rights under this article do not extend to any property that has been found to
have been unlawfully acquired.

4.11.1 The Case of Irregular/Back Door Acquisition of Land Without

Compensation
The courts have in the past dealt with the issue of irregular compulsory acquisition of
land under the now repealed Land Acquisition Act.
There are instances where the state sits back and refuses to assist a citizen whose
land has been invaded by squatters.This brazen state of affairs culminates in a situation
where the Rule of Law is ignored when the State officials refuse to obey court orders
and consider them as worthless pieces of paper.
It is unfortunate that such rogue State official eventually end up costing the tax
payers billions of shillings on account of compensation because of their obstinacy and
impunity. They do not realize that we have a new Constitutional dispensation that
jealously guards the citizen’s fundamental rights over property pursuant to article 40
of the Constitution.
The South African case of President of RSA and another v Modderklip Boerdery (Pty)
Ltd and others244 comprising the full bench of 10 Constitutional Court Judges delivered
a unanimous judgment in a matter involving compulsory acquisition by implication.
The case dealt with the Rule of Law and unlawful occupation of private land. The
court’s eviction order was not acted upon by the State officials who exacerbated the

244 [2006] 2 LRC 38

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land dispute. One of the issues that arose was whether the State had an obligation to
enforce the eviction order and if it breached the private land owner’s fundamental
rights to property [see page 64].
“Failure by the state to act in an appropriate manner in the circumstances would mean that M, and
others similarly placed, could not look upon the state and its organs to protect them from invasions
of their property. That would be a recipe for anarchy. Court orders had to be executed in a manner
that prevented social upheaval…. The state was under an obligation progressively to ensure access
to housing or land for the homeless…The state failed to do anything and accordingly breached M’s
constitutional rights to an effective remedy as required by the rule of law, referred to in section 1(c) of
the Constitution and entrenched in section 34.

The court had no information whether or not the state had other land available to it which it could
have used to relocate the occupiers and at the same time enable its obligations to M to have been
fulfilled. That possibility could not be ruled out. If such alternative land was available, it would not
be just and equitable to order the state to acquire specific land on M’s farm.’’ [Emphasis mine].’’

Arnacherry Limited v Attorney General245

This judgment is in relation to a petition by Arnacherry Limited, a private company
by the Honourable Mr. Justice (Rtd) Benna Wamukoya Lutta. The company’s land
comprising 842 acres was invaded by alleged thugs and goons who forcefully ejected
the farm manager, employees and members of the Lutta family in 1983. The invaders
looted the farm of its equipment, animals, and crops and destroyed the family and
workers’ residences. Additionally, the invaders settled on the said property.The State sat
back and took no action. Instead the Government had converted the land into public
use by erecting a Police camp and Government offices, had appointed a chief and
sub-chief for Chorleim sub-location and built public schools namely Kitum Primary
School and Secondary School. The said buildings and institutions still stand on the
property to date. Justice Lenaola awarded, inter alia, Special Damages under Article 23
(3) of the Constitution of Kenya 2010 of KShs 850,000,000 being compensation for
the land.
He has this to say about state impunity:
“This is indeed a sad and distressing petition. It is not expected that the State, in this age
and time and with a robust Constitution such as ours, can actively participate in acts of
impunity such as the forceful take-over of personal property without due compensation.
The take-over has lasted 30 years and that makes the said action all the more disturbing.

I watched Justice Lutta testifying in Court. A man whose judgments and fingerprints dot
our Law Reports now looks dejected and broken. His advanced years show more than
they should, all because what he worked for in his youth was stolen by conniving civilians
with Government protection. No Kenyan should ever again be so treated and the State
must draw lessons from this judgment.’’

4.11.2 Right to Property And Due Process

The tax-man is never anyone’s favourite person in certain cases. Imagine the shivers
of fear a citizen experiences when the taxman comes calling and makes a demand
245 [2014] eKLR
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278 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

that elicits disbelief and consternation. Fortunately, case law is replete with judicial
determinations in aid of the hapless citizen whose property was compulsorily acquired
by the tax-man.
Let us begin with the case of Thakur Persad Jaroo v Attorney General246- a decision
of the Privy Council comprising 5 eminent judges. The court considered the
fundamental rights to the right to enjoyment of property and the fundamental right to
be subjected to the due process of law. The appellant’s motor vehicle had been seized
by the police who suspected that it was stolen. Even though his appeal was dismissed
because the appellant failed to demonstrate ownership of the car, the Privy Council
considered section 4 of the Constitution of the Republic of Trinidad and Tobago of 1
August 1976 provides (see page 264 para: d):
‘4. It is hereby recognized and declared that in Trinidad and Tobago there have existed
and shall continue to exist…. the following fundamental rights and freedoms,
namely-
(a) the right of the individual to life, liberty, security of the person and enjoyment
of property and the right not to be deprived thereof except by due process
of law;
(b) the right of the individual to equality before the law and the protection of
law.
Council held as follows when interpreting the appellant’s constitutional fundamental
rights [pages 55-56].
1. Two relevant constitutional rights were recognized and declared by section 4(a):
the right to the ‘enjoyment of property’ and the ‘right not to be deprived thereof
without due process of law’. In neither case, however, was the constitutional
right confined to the rights which flow from the ownership of property. It was
not necessary for a person who wished to assert his constitutional right to the
enjoyment of property against the state to show that he was the owner of the
property which he wished to enjoy or to demonstrate that he had some other
good title to it. It was sufficient for him to show that at the relevant time he was
in possession of the property.
2. The expression ‘due process’ had two elements which were relevant: first, there
was the right to protection against abuse of power; secondly, there was the
requirement that when powers were exercised by the state against the individual
they must be exercised lawfully and not arbitrarily.’’

4.11.3 Breach of Fundamental Rights if Property Compulsorily Acquired

by Customs Officials
J Astaphan and Co. Ltd v Comptroller of Customs and another.247 This is a decision of the
Court of Appeal that addressed constitutional law regarding fundamental rights to
property. It considered protection against the compulsory acquisition of property by
customs officials. At page 576 [page 68] paragraphs e to i is a reproduction of section
6 of the Constitution of the Commonwealth of Dominica.
The court held [page 65];
“[holding 2 at page 571] The compulsory exaction of money from the individual was
a compulsory acquisition of the individual’s property within the meaning and intent

246 [2002] 5 LRC 258

247 [1999] 2 LRC 569
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of section 6 of the Constitution. Although section 6(6)(a)(ii) validated the compulsory

exaction or acquisition of money by way of penalty it could not be said to be by way
of penalty unless the individual was in breach of law. The appellant did not commit any
breach of the law and, therefore, the further sum was not a penalty and was not caught or
protected by section 6(a)(ii). The compulsory exaction or acquisition from the appellant
of the further sum of $ 80,624.61 consequently contravened s 6 and was invalid. …The
exaction from the appellant of the sum of $ 81,824.40 was unconstitutional and should
be refunded to the appellant.”

4.11.4 Taxation Laws Must not Deprive Citizens of their Property

In Commissioner of Income Tax v Westmont Power (K) Ltd Nairobi248, His lordship Justice
Visram (as he then was) held as follows on the issue of tax laws having the effect of
depriving citizens of property [page 76]:
‘Even though taxation is acceptable and even essential in democratic societies, taxation
laws that have the effect of depriving citizens of their property by imposing pecuniary
burdens resulting also in penal consequences must be interpreted with great caution. In
this respect, it is paramount that their provisions must be express and clear so as to leave
no room for ambiguity. Following the Inland Revenue v Scottish Central Electricity Company
case, any ambiguity in such a law must be resolved in favour of the taxpayer and not the
Public Revenue Authorities which are responsible for their implementation.’

4.11.5 The Law on Restitution and Interest Payable on Ultra Vires and
Illegal Demand by Tax Authority
The common law position on restitution following collection of money by the tax
authority on the basis of an ultra vires demand was considered in the case of Woolwich
Equitable Building Society v Inland Revenue Commissioners249 The House of Lords decision
considered 50 cases from England, the commonwealth and other jurisdictions on the
issue of illegal tax collection based on an illegal demand by the state revenue authority.
This decision is of monumental importance and the ratio decidendi should be
adopted in our jurisdiction.The facts of the case can be briefly summarised as follows.
A building society decided to pay tax revenue which it considered to be ultra vires
certain tax regulations but later challenged the legality of the payment. Its primary
submission was simple. A subject who makes a payment in response to an unlawful
demand for tax, or any similar demand, at once acquires a right to recover the amount
so paid as money had and received to the subject’s use. It also claimed interest on the
tax that it paid under section 35A of the Supreme Court Act, 1981.
The High Court dismissed the claim. The Court of Appeal allowed the appeal.
The revenue authority appealed to the House of Lords and lost. The question that
lay at the heart of the appeal to the House of Lords was whether money exacted as
taxes from a citizen by the state revenue authority, which exaction was ultra vires, is
recoverable by the citizen as of right; if so, Woolwich would be entitled to interest on
the sums repaid to it by the revenue, running from the dates when those sums were
paid to the revenue by Woolwich.

248 Income Tax Appeal No. 626 of 2002

249 [1992] 3 WLR 366 [page 20].
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The House of Lords at page 366 [page 20] in its holding held as follows:
‘That although the common law had previously only admitted recovery of money
exacted under an unlawful demand by a public authority where the payment had been
under a mistake of fact or under limited categories of compulsion, which did not apply
to the payments by the building society, the nature of demand for tax or similar impost
on the citizen by the state with the perceived economic and social consequences of non-
payment stemming from the inequality of the parties’ respective positions, and the unjust
enrichment falling on the state where the citizen paid an unlawful demand to avoid those
consequences, warranted a reformulation of the law of restitution so as to recognise a
prima facie right of recovery based solely on payment of money pursuant to an ultra vires
demand by a public authority; and that, accordingly, since the building society’s claim
fell outside the statutory framework governing repayment of overpaid tax, it was entitled
at common law to repayment of the sums from the dates of payments and to interest in
respect thereof pursuant to section 35A of the Supreme Court Act, 1981.’

4.12 Article 159 of the Constitution – Not a Panacea for Ignoring

Rules and Statutory Constraints
Article 159 is the centrepiece when considering how judicial power is exercised. It
states:
159. Judicial authority
(1) Judicial authority is derived from the people and vests in, and shall be exercised
by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by
the following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution mechanisms
shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural
technicalities; and
(e) the purpose and principles of this Constitution shall be protected and
promoted.
(3) Traditional dispute resolution mechanisms shall not be used in a way that—
(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are
repugnant to justice or morality; or
(c) is inconsistent with this Constitution or any written law.
It has become fashionable for advocates to hide behind article 159, wave it in your face
and proclaim that justice abhors technicalities. We learnt that nature abhors a vacuum
but does that hold true when a pleading is substantially defective?
However, the courts have come up with various pronouncements on article 159
that shall now be addressed. The list is not exhaustive but merely picks on the areas of
interest.
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4.12.1 Lack of a Notice of Appeal Cannot Confer Jurisdiction on the Court

of Appeal
The Court of Appeal in the case of Nguruman Limited v Shompole Group Ranch and
another250 addressed the question of its jurisdiction to grant orders of stay of execution-
whether a stay of execution could be issued against a decree concerning which there
was no Notice of Appeal but on the basis of a Notice of Appeal issued against a later
decision in the same suit. The court considered if it has power to do so under articles
159 & 164(3) the Constitution and the Appellate Jurisdiction Act (Chapter 9), section
3(1) & Court of Appeal Rules, rule 5(2)(b). The court dismissed the application and
held as follows:
“Questions of jurisdiction were not technicalities and it was the Notice of Appeal that
would donate jurisdiction to the Court of Appeal.The overarching principle of substantive
justice, as provided for in article 159 of the Constitution of Kenya 2010, would not allow
the Court of Appeal to ignore clear rules of procedure.

The Court of Appeal’s jurisdiction was fully circumscribed and it could not be enlarged.
Without an appeal or a Notice of Appeal, the Court lacked jurisdiction to grant any
orders. The power of the Court of Appeal, under rule 5(2)(b) of the Court of Appeal
Rules, to order a stay of execution, an injunction or a stay of further proceedings was only
exercisable where a Notice of Appeal had been lodged.

As long as there was no appeal on record, the Court’s hands were tied and it could not
under the guise of administering justice grant any order.

The grant of orders without the existence of an appeal or intended appeal would amount
to a violation of both article 164(3) of the Constitution of Kenya 2010 and section 3(1)
of the Appellate Jurisdiction Act (Chapter 9). Once the Court realized that there was no
Notice of Appeal, it ought to have struck out the application.

In the circumstances, concerning the question as to whether the Court of Appeal had
the jurisdiction to review a Court of Appeal decision, rule 57(2) of the Court of Appeal
Rules was applicable. Under that rule an order made pursuant to an application made to
the Court of Appeal could be rescinded by the Court of Appeal.’’

4.12.2 The Overriding Objectives- vis-a-vis Article 159 of the Constitution

Both the Civil Procedure Rules and the Appellate Jurisdiction Act introduced the
concept of overriding objectives in the dispensation of justice.
The Court of Appeal in the case of Abok James Odera T/A A.J Odera and Associates
v John Patrick Machira T/A Machira and Co. Advocates251 held as follows:
“The aim of the overriding objective principle was to enable the courts to achieve fair,
just, speedy, proportionate, time and cost saving disposal of cases before it. Its application
did not operate to uproot established principles and procedures but to embolden the
court to be guided by a broad sense of justice and fairness. There was also a mandatory
requirement that the Court of Appeal rules of procedure had to also be construed in

250 [2014] [ EKLR

251 [2013] EKLR
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a manner which facilitated the just, expeditious, proportionate or affordable resolution

of appeals. (Deepak Manlal Kamami and another v Kenya Anti-Corruption and 3 others, civil
application No. 152 of 2009).

A ruling in favour of sustaining the current appeal would therefore be in line with
the overriding objective principle because if the appeal was struck out on account of
incompetence, the striking out order would not finally determine the issues in controversy
as between the parties. It would simply restore the parties to the pre-appeal stage before
the alleged offending notice of appeal was filed. The net effect of this restoration would
be that the appellant would be at liberty to reinitiate the appellate process a fresh. Such
an action was likely to lead to a delay in the disposal of the real issues in controversy as
between the appellant and the respondent. There would also be considerable costs to be
borne by both parties both for these proceedings and the proceedings to be reinitiated.
This would also result in the clogging of the justice system as the reinitiated appeal would
have to be re-presented to this same Court based on the same set of facts and as soon as it
was presented it would start competing for time for disposal.’’

4.12.3 Lack of a Practising Certificate - will Article 159 offer Redemption?

The starting point is to appreciate what section 9 of the Advocates Act entails. It reads:
9. Subject to this Act, no person shall be qualified to act as an advocate unless;
(a) he has been admitted as an advocate; and
(b) his name is for the time being on the Roll; and
(c) he has in force a practicing certificate and for the purpose of this Act a
Practising Certificate shall be deemed not to be in force at any time while
he is suspended by virtue of section 27 or by an order under section 60(4).
The courts have come out strongly against advocates who have not taken out practising
certificates.
Justice Mutungi addressed the issue of lack of a practising certificate in the case of
Abdul Aziz Juma v Nikisuhi Investment and 2 Others252.This was in an interesting case
where the advocate filed a plaint when he did not have a practising certificate. An
application to strike out the plaint was filed. During the pendency of the objection,
he later acquired his practising certificate and argued that he had regularised the
matter and in any event this was now a technicality. The court had to determine, inter
alia, whether article 159(2)(d) of the Constitution can be invoked to over- ride clear
provisions of statute – Advocates Act, section 9.
The court held as follows:
(1) The wording of section 9 of the Advocates Act had the effect that an advocate had
to satisfy all the conditions set out therein to act as an advocate for a party and/or
to offer legal services as an advocate to clients. The wording was mandatory and
unambiguous.
(2) Advocates who do not hold a current Practising Certificate cannot purport to
represent a party or draw pleadings to be filed in court. Pleadings drawn by advocates
who do not hold current practicing certificate are incompetent and needed to be
struck out.
(3) Article 159 of the Constitution, 2010 was never intended to over- ride clear

252 [2013] EKLR

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provisions of any statute unless such provisions of a statute were found and held to
be unconstitutional. Acts of Parliament such as the Advocates Act made provisions
for the application of the law and the Constitution demands courts to protect the
Constitution and to apply the law as enacted by Parliament.
(4) Article 159(2)(d) of the Constitution of Kenya, 2010 could not be applied to do
away with all rules of procedure but was intended to ensure that adherence to strict
rules of procedure did not lead to a miscarriage of justice.
(5) The application of section 9 of the Advocates Act was not one of procedural
technicalities. It was a substantive provision of the law and the section was intended
to ensure that only qualified advocates served the public.
(6) (Obiter) “It is incumbent for the instructing clients to ensure the Advocate they
choose to instruct holds a Practising Certificate. The non-observance of the
provision can easily lead to the invasion of the legal practice by “quacks” that
have no qualifications. It should therefore be a primary duty and obligation of
legal practitioners to ensure they at all times hold current practicing certificates
otherwise the consequences for failure are devastating. The Law Society of Kenya
(LSK) has in recent times made it easy to access the details and particulars of all
advocates including their status and hence members of the public should have little
difficulty to access information on the status of advocates.”

4.12.3.1 Effective date of a Practising Certificate

Kenya Power and Lighting Company v Chris Mahinda T/A Nyeri Trade Centre253
The Court of Appeal addressed the effective date of a Practising Certificate. The
Court held:
“A practicing certificate is issued for a whole year and the certificate issued in this case
was for the year 2004 and it was suggested that, although it was issued on 22 September
2004, it had retrospective effect back to the beginning of 2004…We do not accept this
submission. If no practicing certificate had been issued when the act was done, the
advocate was not qualified to do that act, at the time he did it”.

In Standard Chartered Bank v Mechanical Engineering Plant Ltd and Others,254 the Court of
Appeal held that a practicing certificate cannot have retrospective effect and therefore
the memorandum of appeal filed by an advocate without a practicing certificate at the
time of signing it was incompetent as the advocate was unqualified.

4.12.3.2 Supreme Court Upholds Bank’s Security Documents Drawn by An Advocate

Without a Valid Practicing Certificate
However, the Supreme Court in the case of National Bank of Kenya Limited v Anaj
Warehousing Limited255 set aside the Court of Appeal judgment which had nullified the
bank’s security documents on account of the lack of a Practicing Certificate by the
advocate.
The Supreme Court considered the validity of conveyancing documents prepared
by an advocate without a valid practicing certificate. The question posed was whether
a document or instrument of conveyance was null and void for all purposes, on ground

253 [2005] 1KLR 753,

254 [2009] EA 404
255 [2015] eKLR The exposition of the law and holdings are taken verbatim from Kenya Law Reports online.
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that it was prepared, attested and executed by an advocate who did not have a current
practising certificate, within the meaning of the Advocates Act-Advocates Act, Section
34(1)(a)
Issues for Determination by the Supreme Court
(a) Whether a document or instrument of conveyance was null and void for all
purposes, on ground that it was prepared, attested and executed by an advocate who
did not have a current practicing certificate, within the meaning of section 34(1)(a)
of the Advocates Act.
(b) Whether the inconsistencies found in the provisions of the Advocates Act required
law reform.
(c) Whether the ratio decidendi in Wilson Ndolo Ayah case which invalidated legal
documents prepared by a non-qualified person still stood and was a pertinent
criterion for resolving the instant matter.
(d) Whether the case involved matters of general public importance.

Relevant Provisions of the Law

Section 2 Interpretation
“Advocate” means any person whose name is duly entered upon the Roll of Advocates
or upon the Roll of Advocates having the rank of Senior Counsel and, for the purposes
of Part IX, includes any person mentioned in section 10;
“Senior Counsel” means an advocate upon whom the President has conferred the
rank of Senior Counsel;

Section 9-Qualifications for Practising as an Advocate

Subject to this Act, no person shall be qualified to act as an advocate unless—
(a) he has been admitted as an advocate; and
(b) his name is for the time being on the Roll; and
(c) he has in force a practising certificate;
(d) deleted by Act No. 9 of 2000, section 57,
and for the purpose of this Act a practising certificate shall be deemed not to be in
force at any time while he is suspended by virtue of section 27 or by an order under
section 60(4).

Section 10 Certain Officers Entitled to Act as Advocates

Each of the following persons shall, if he holds one of the qualifications specified in
paragraphs (a), (b) and (c) of section 13(1) at the time of his appointment to his office,
be entitled in connection with the duties of his office to act as an advocate, and shall
not to that extent be deemed to be an unqualified person, that is to say—
(a) an officer in the office of the Attorney-General or the office of the Director of
Public Prosecutions;
(b) the Principal Registrar of Titles and any Registrar of Titles; or
(c) any person holding office in a local authority established under the Local
Government Act, (Chapter 265)
(d) such other person, being a public officer or an officer in a public corporation, as the
Attorney-General may, by notice in the Gazette, specify:
Provided that the officers Referred to in this Section Shall not be Entitled to
Charge Fees for so Acting.
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Section 12 Qualification for Admission as Advocate

Subject to this Act, no person shall be admitted as an advocate unless—
(a) he is a citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania; and
(b) he is duly qualified in accordance with section 13.

Section 13 Professional and Academic Qualifications

(1) A person shall be duly qualified if—
(a) having passed the relevant examinations of any recognized university in
Kenya he holds, or has become eligible for the conferment of, a degree in
law of that university; or
(b) having passed the relevant examinations of such university, university college
or other institution as the Council of Legal Education may from time to
time approve, he holds, or has become eligible for conferment of, a degree in
law in the grant of that university, university college or institution which the
Council may in each particular case approve; and thereafter both—
(i) he has attended as a pupil and received from an advocate of such class
as may be prescribed, instruction in the proper business, practice and
employment of an advocate, and has attended such course or tuition
as may be prescribed for a period which in the aggregate including
such instruction, does not exceed eighteen months; and
(ii) he has passed such examinations as the Council of Legal Education
may prescribe; or
(c) he possesses any other qualifications which are acceptable to and recognized
by the Council of Legal Education;
(d) he is an advocate for the time being of the High Court of Uganda, the
High Court of Rwanda, the High Court of Burundi or the High Court of
Tanzania;
(e) he is for the time being admitted as an advocate of the superior court of a
country within the Commonwealth and—
(i) has practised as such in that country for a period of not less than five
years; and
(ii) is a member in good standing of the relevant professional body in
that country:
Provided that the Council may, in addition, require that a person
to whom this paragraph applies undergo such training, for a period
not exceeding three months, as the Council may prescribe for the
purpose of adapting to the practice of law in Kenya.
(2) The Council of Legal Education may exempt any person from any or all of the
requirements prescribed for the purposes of paragraph (i) or paragraph (ii) of
subsection (1) upon such conditions, if any, as the Council may impose.

Section 34 Unqualified Person not to Prepare Certain Documents or

Instruments
(1) No unqualified person shall, either directly or indirectly, take instructions or draw
or prepare any document or instrument—
(a) relating to the conveyancing of property; or
(b) for, or in relation to, the formation of any limited liability company, whether
private or public; or
(c) for, or in relation to, an agreement of partnership or the dissolution thereof;
or
(d) for the purpose of filing or opposing a grant of probate or letters of
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administration; or
(e) for which a fee is prescribed by any order made by the Chief Justice under
section 44; or
(f) relating to any other legal proceedings; nor shall any such person accept or
receive, directly or indirectly, any fee, gain or reward for the taking of any
such instruction or for the drawing or preparation of any such document or
instrument:
Provided that this subsection shall not apply to—
(i) any public officer drawing or preparing documents or instruments in
the course of his duty; or
(ii) any person employed by an advocate and acting within the scope of
that employment; or
(iii) any person employed merely to engross any document or instrument.
(2) Any money received by an unqualified person in contravention of this section may
be recovered by the person by whom the same was paid as a civil debtrecoverable
summarily.
(3) Any person who contravenes subsection (1) shall be guilty of an offence.
(4) This section shall not apply to—
(a) a will or other testamentary instrument; or
(b) a transfer of stock or shares containing no trust or limitation thereof.”

Held
The Supreme Court held that the decision by the Appellate Court in Wilson Ndolo Ayah
case was based on certain fundamental assumptions that; the phrase “an unqualified
person” was synonymous with “an advocate without a current practising certificate”.
On the face of section 34(1) of the Advocates Act, the assumption was not without
merit, especially taking into account the provisions of section 2 of that Act, which
defined “an unqualified person” as “a person not qualified under section 9 of the
Act as an advocate”. Section 9 of the Advocates Act in turn provided that; no person
should be qualified to act as an advocate unless
a. he had been admitted as an advocate;
b. his name was for the time being on the Roll; and
c. he had in force a practicing certificate.
The Court’s summarized judgment is as follows:
(a) To convey their full import, the provisions ought to be read together with others
in the same statute. Section 2 of the Act also defined an “advocate”, as “any person
whose name was duly entered upon the Roll of Advocates, or upon the Roll of
Advocates having the rank of “Senior Counsel” and included any person mentioned
in section 10. Section 10 made no mention of a practising certificate. Sections 12
and 13 of the Advocates Act on the other hand, were devoted to the qualifications
for being admitted as an advocate and were both academic and professional.
(b) While section 34(1) of the Advocates Act forbade an unqualified person from
indirectly or directly taking instructions, or drawing any document relating to the
conveyancing of property, it exempted from that prohibition, any person who was
employed by an advocate and who was acting within the scope of that employment.
Such a state of uncertainty flowed from either, the intelligence of draftsman-ship; or
equivocation in the expression of parliamentary intent.
(c) The Appellate Court’s second assumption in Wilson Ndolo Ayah case was that
section 34(1) of the Advocates Act had the effect of rendering all instruments of
conveyance prepared by advocates without current practising certificates, null and
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void for all purposes. It was at the moment clear that such an assumption was not
based on any express or implied meaning of section 34, or other provisions of the
Advocates Act. In the reasoning of the Appellate Court, the ground for invalidating
such documents rested in public policy: citizens should obey the broad intent of
the law of the land; and Courts should enforce the law of the land, and deter acts
of illegality. Within context, and by the terms of the constitutional law, the Courts
were under obligation to resolve live disputes on questions that were governed by
quite specific propositions of law.
(d) The main objective of section 34, prohibited unqualified persons from preparing
certain documents. It was directed at “unqualified persons”. It prescribed clear
sanctions against those who transgress the prohibition. The sanctions prescribed
were both civil and criminal in nature. But the law was silent as to the effect of
documents prepared by advocates not holding current practising certificates. The
illegality was the assumption of the task of preparing the conveyancing documents,
by the advocate, and not the seeking and receiving of services from that advocate.
Likewise, a financial institution that called upon any advocate from among its
established panel to execute a conveyance, committed no offence if it turned out
that the advocate did not possess a current practising certificate at the time he or
she prepared the conveyance documents. The spectra of illegality lie squarely upon
the advocate, and ought not to be apportioned to the client.
(e) Section 34 of the Advocates Act, did not invalidate all documents prepared by an
advocate who lacked a current practising certificate. Equally, section 19 of the Stamp
Duty Act did not, provide a basis for invalidating the instruments in question, it only
sought to render inadmissible for purposes of evidence, all documents which were
unstamped.The question before the Court was not the admissibility in evidence, of
unstamped documents, but rather the validity of instruments (which indeed were
stamped) prepared by an advocate who lacked a current practising certificate.
(f) Even as stare decisis assured orderly and systematic approaches to dispute resolution,
the common law retained its inherent flexibility, which empowered the Court, as
the custodian of justice under the Constitution, to proceed on a case-by-case basis,
invoking and applying equitable principles in relation to every dispute coming up.
Precedent (such as that in Wilson Ndolo Ayah case), was to be perceived, in general,
as the “announced rule”; but in the quest for justice in the context of a particular
case such as the instant case, there was a basis for departing therefrom.
(g) Because the Courts normally use announced rules as their starting points, as a
practical matter the deciding court was likely to have a limited number of salient
choices in dealing with a precedent. It could accept and apply the announced
rule; it could determine that, on close inspection the announced rule was not
relevant; or it could use a minimalist or result-centred technique to reformulate or
radically reconstruct the announced rule, and then apply or distinguish the rule it
so established.
(h) In Wilson Ndolo Ayah case, monies belonging to the appellant were held by the
Respondent, and it was held to be irrecoverable, just on the policy ground that the
Courts ought to be seen to deter illegality.The illegality stemmed from the fact that
the conveyance was prepared by an advocate who at the material time, did not hold
a current practising certificate. However, such illegality, Parliament did not intend
that section 34 of the Advocates Act perpetrate an injustice. The injustice, indeed,
multiplied, and subsumed the plane of public interest, in view of the fact that the
monies in question were drawn from a public financial institution. Therefore, the
case involved matters of general public importance, within the meaning of article
163(4)(b) of the Constitution since the Court of Appeal had certified it as such.
(i) In the instant case, the monies lent were in conformity with the provisions of the law,
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save that the relevant conveyancing instruments were drawn by an advocate who at
the time did not hold a practising certificate, if they were not recoverable, it would
be to sanction unjust enrichment for unscrupulous borrowers, while depriving
innocent lenders creating a wide scope for fraudulent borrowing. Such a position
in law did not represent an “announced rule” – precedent that should guide the
disposal of the instant matter. Just as the law frowns upon unscrupulous lenders,
especially those whose actions would fetter the borrower’s equity of redemption, so
also should it frown upon unscrupulous borrowers, whose actions would extinguish
the lender’s right to realize his or her security. There was to be, in law, a substantial
parity of rights-claims, as between the lender and the borrower.
(j) The Appellate Court made the assumption that, since the Law Society of Kenya did
publish annually a list of names of duly-licensed advocates, the public would know
if a particular advocate had not taken out a practising certificate. The assumption
represented not by far reality for the typical client seeking a particular service, and
founds a well-known advocate conducting his work from decent chambers. Judicial
notice ought to be taken that even the judges in court, could hardly keep up with
the records of advocates who had duly renewed their practice certificates. It was the
Law Society of Kenya which was best placed to know which advocate had or had
not taken out a practising certificate
(k) One of the bases of the Appellate Court’s decision was founded upon a hypothesis
which should not be the criterion for resolving the question as to the rights of the
parties: that since the Advocates Act provided for the recovery of fees by a client
whose advocate had not taken out a practising certificate, there would be no harm
if the charge documents were annulled. For even if the appellant were to recover
any fees paid, it stood to be damnified by the non-repayment of the loan itself.
(l) The Court’s obligation coincided with the constitutional guarantee of access to
justice as was in article 48 of the Constitution, and in that regard, required the
fulfilment of the contractual intention of the parties. It was clear that the parties
had intended to enter into a binding agreement, pursuant to which money was
lent and borrowed, on the security of a charge instrument. It could not be right in
law, to defeat that clear intention, merely on the technical consideration that the
advocate who drew the formal document lacked a current practising certificate.The
guiding principle was to be found in article 159(2)(d) of the Constitution which
affirmed that justice should be administered without undue regard to procedural
technicalities.
(m) To invalidate an otherwise binding contractual obligation on the basis of a
precedent, or rule of common law even if such course of action would subvert
fundamental rights and freedoms of individuals would run contrary to the values of
the Constitution as enshrined in article 40 as regards the protection against arbitrary
legislative deprivation of a person’s property of whatever description, article 20(3)
(a) and (b) as regards interpretation that favoured the development and enforcement
of fundamental rights and freedoms and article 10 on values and principles of
governance. The proper direction in law, that, no instrument or document of
conveyance becomes invalid under section 34(1)(a) of the Advocates Act, only by
dint of it having been prepared by an advocate who at the time was not holding a
current practising certificate. The contrary effect was that documents prepared by
other categories of unqualified persons, such as non-advocates, or advocates whose
names had been struck off the roll of advocates, should be void for all purposes.
(n) While securing the rights of the client whose agreement had been formalised by
an advocate not holding a current practising certificate, such advocate’s obligations
under the law remained unaffected. Such advocate remained liable in any applicable
criminal or civil proceedings, as well as any disciplinary proceedings to which he or
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she could be subject.

(o) The instant case involved matters of general public importance, within the meaning
of article 163(4)(b) of the Constitution since the Court of Appeal had certified it
as such. There were inconsistencies in the Advocates Act and as such, the Judgment
of the Court commended was attention-ed to Parliament, the Law Society and the
Attorney General for appropriate legislative action to address the inconsistencies in
the Act

4.12.4 Article 159 will not Shield one from Indolence and Sloppiness
With time on account of pressure of work, we tend to overlook certain procedural
requirements that are fundamental. We later rue the oversight and then whimper that
substantive justice cannot be sacrificed at the altar of procedural technicalities.
Take the example of a surgeon. Could he go ahead and operate straight away
without first ensuring that the patient’s medical history is before him, his vital signs
can sustain the trauma of surgery and contingency plans are set out in case of any
emergency? We must start developing the mentality of legal surgeons. Always listen to
your sixth sense and when in doubt consult a colleague.
Floris Pierro and another v Giancarlo Falasconi (as the administrator of the estate of
Santuzza Billioti alias Mei Santuzza)256 was the case where the Court of Appeal struck
out an appeal where the appellant, not having originally included the certified copy of
the Order, filed it in a Supplementary Record outside the 15-day window. The court
proceeded to observe as follows:
“Article 159 of the Constitution of Kenya, enjoins courts to administer justice without
undue regard to procedural technicality. Failure to include in the record of appeal a
primary document or to formally apply to court for leave to file a supplementary record to
include the same cannot be wished away as a procedural technicality. Otherwise there will
be no orderly conduct of business in this Court. Nor was that article in the Constitution
meant to be a panacea for advocates negligence or casual approach in dealing with appeals
to this Court. Nor can it be said that such blatant omissions should be relegated to the
periphery in pursuit of the Overriding Objective Principle under section 1A and 1B
of the Civil Procedure Act and Section 3A and 3B of the Appellate Jurisdiction Act.
Similarly, these provisions were not meant or aimed at camouflaging the indolence and or
negligence of parties to the appeal. Neither were they meant to throw out of the window
the well-known rules of this COURT.’’

The Court of Appeal in the case of Telkom Kenya Limited v John Ochanda (Suing On His
Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited)257 reiterated
that rules of procedure had to be followed.
“The respondents are seeking umbrage under Article 159 (2) (d) of the Constitution
which provides that justice shall be administered without undue regard to procedural
technicalities. It does not avail them. We are content to state that the constitutional
provision is not meant to whitewash every procedural failing and it is not meant to place
procedural rules at naught. In fact, what has befallen the respondents is proof, if any
were needed, that there is great utility in complying with the rules of procedure. Such
compliance is neither anathema nor antithetical to the attainment of substantive justice. As
has been said before, the rules serve as handmaidens of the lady Justice.’’

256 [2014] eKLR

257 [2014] eKLR
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4.12.5 Observe the Timelines when Granted Leave to File the Notice of
Motion in Judicial Review Proceedings
Whenever a party is given strict timelines to file the Notice of Motion in judicial
review proceedings, do remember to file the pleading within the timelines imposed.
Failure to do so will invite the wrath of you opponents who will simply raise a
preliminary objection to the Notice of Motion on the ground that it was filed out of
time. Even article 159 of the Constitution would not comfort the indolent.
This is what befell the ex-parte applicant in the case of Republic v Kahindi Nyafula
and 3 others Ex Parte Kilifi South East Farmers Co-Operative.258
The ex-parte applicant was granted leave to file the Notice of Motion within 21
days but instead filed it 14 days after the expiry of the same.The Interested Parties filed
a preliminary objection and argued that the Motion should be struck out for being
fatally defective on account of being filed out of time. In response to the Preliminary
Objection, counsel for the ex-parte applicant submitted that it was true the Notice
of Motion seeking for Judicial Review orders was filed out of time. However, it was
submitted, that that act didnot render the Motion a nullity but meant that the motion
was only improperly before the court. According to counsel, the court should give
the ex-parte applicant an opportunity to regularise the anomaly considering that it has
filed an application seeking for enlargement of time.The court upheld the preliminary
objection and dismissed the Notice of Motion with costs. Justice Angote reasoned as
follows:
“Judicial Review proceedings under Order 53 of the Civil Procedure Rules are a special
procedure. A party, other than invoking the provisions of Order 53 cannot invoke the
provisions of the Civil Procedure Act and the Rules made thereunder. (see Welamudi v
The Chairman Electoral Commission of Kenya KLR [2002] 285 and R v Kenya Bureaus of
Standards and others [2006] EA 345).

The law provides that the substantive Motion seeking for prerogative orders must be
filed within 21 days. The Law Reform Act, which is the substantive law dealing with
prerogative orders, does not provide for the enlargement of time within which a party
should file the Motion. In the case of AKO v Special District Commissioner Kisumu and
another (1959) KLR 163, the Court of Appeal held as follows:

“The Prohibition is statutory and absolute and is not therefore challengeable under
procedural provisions of the Civil Procedure Rules, more specifically Order 49, rule 5
(now Order 50, rule 6) which makes provision for the enlargement of time.”

Consequently, the provisions of Order 50, rule 6 of the Civil Procedure Rules which
allows the enlargement of time by the court for doing of a particular act does not come to
the Ex-parte applicant’s aide, neither does article 159(2) of the Constitution.’’

4.12.6 Rules of Evidence Must be Observed

The Court of Appeal in the case of Emfil Limited v Registrar of Titles Mombasa and 2
others259 admonished the state counsel for failing to file any rebuttal evidence. Instead,

258 [2014] eKLR

259 [2014] eKLR
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in judicial review proceedings, he submitted from the bar and the High Court took
this as evidence. The Court of Appeal in allowing the appeal, held inter alia:
“Although article 159 enjoins the court to administer substantial justice without undue
regard to procedural technicalities, article 159 does not allow the respondents to totally
ignore the rules of evidence. The respondents having failed to file any replying affidavit,
the affidavit of the appellant stood unchallenged on facts, and thus the respondent could
only challenge the application on issues of law based on the undisputed facts before the
court. Therefore, the allegations made from the Bar disputing the facts before the court
were matters which the trial judge ought not to have taken into account.’’

4.12.7 Article 159 promotes use of Alternative Dispute Resolutions

Mechanisms
In the case of Joseis Wanjiru v Kabui Ndegwa Kabui and another,260 the Court of Appeal
observed as regards the use of ADR:
[23] Our attention was drawn to a consent agreement that Wanjiru had entered into
with the 1st respondent and was filed in this Court on the 28 July 2010. The 1st
respondent is the personal representative of Ndegwa and in our view he has the
capacity to enter into such a consent that binds the estate of his late father. Although
the 2nd respondent is opposed to the terms of the consent, we are of the view
that her objection is inconsequential. Article 159(c) of the Constitution encourages
parties to seek alternative ways of settling disputes, including reconciliation which
was the case here. In that agreement, the suit land is to be shared equally between
Wanjiru and the estate of Ndegwa. The consent order would render justice in this
case for all the parties as the 2nd respondent will share with the 1st the one half
portion that will go to the estate of Ndegwa.
In Re the Matter of the National Lands Commission Under Article 163(6) of The Constitution
of Kenya261; the Supreme Court ordered the parties that prior to the conduct of a
hearing, they should within a 90-day interlude undertake a constructive engagement
towards reconciliation and a harmonious division of responsibility.

4.12.8 Avoid Forum Shopping

The Supreme Court scorned on parties’ forum shopping when they do not get
conservatory orders, withdraw the suit and proceed to file in another court. This was
in the case of In Re the Matter of the National Lands Commission Under Article 163(6) of
The Constitution of Kenya262where the court held:
“[119] The actions of the Commission constituting: first, filing a petition revolving around
the same subject matter and involving the same parties in the High Court and later
withdrawing it to pave way for the Reference at this Court; secondly, sneaking
back to the High Court to get conservatory Orders when no interim Orders has
been granted by this Court, is indicative of the Commission’s attempt to have
this controversy multifariously considered. This approach is not only a dangerous
precedent if accepted, but an undermining of the clear jurisdictional distinctions of
the various judicial agencies. As such, this Court ought to unequivocally condemn
such an approach to safeguard the dignity and legitimate operational mechanisms
of Kenya’s judicial system.’’

260 [2014] eKLR

261 infra
262 [2014] eKLR
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4.13 Is There a Time Bar on Enforcement of Fundamental Rights

While various statutes prescribe the time bars for various causes of actions that can be
enforced in tort or contract for instance, does the same apply to the enforcement of
fundamental rights?
Can a party come to court 30 years after the event and seek damages for breach
of his fundamental rights?
The three judge bench in the case of Joseph Vitalis Odero Juma v Chief Justice of
Kenya and 6 others263 answered this question thus:”
“To our minds, it must always be borne in mind that the justice system has well defined
procedures to enable it conduct its affairs in an orderly manner. It is for that reason that
the courts may tell a claimant that even though he might have a claim which appeared
legitimate, he had come to court too late. For that reason, a claim founded on tort will not
be entertained if it is brought more than three (3) years after the cause of action accrued.
Similarly, a claim founded on an alleged breach of contract would be said to be time-
barred, if lodged more than six (6) years after the cause of action accrued.

The point we are making is that a claim, even though it may appear legitimate, could be
shut out from accessing the reliefs that it may otherwise have been entitled to.

But yet again, we recognize that there has been no prescribed period of time within
which a claim founded on an alleged violation of a fundamental constitutional right, has
to be brought to court.

Indeed, in numerous appeals, the Court of Appeal did entertain claims founded on alleged
violations of section 72(3) of the Constitution even though the appellants had not raised
such issues when their cases were before the trial court or the first appellate court.

Is it arguable that it was alright to raise such issues simply because the matters were within
appeals? Would that be a sound reason to deny the petitioner the opportunity to raise
issues of alleged violations of his constitutional right, through a petition?

Whereas we fully appreciate the important public policy that there must be an end to
litigation, we are equally anxious that the said policy should not stand between a person
and his fundamental rights. It is all a question of striking the right balance.’’

4.14 Equality and Freedom from Discrimination

Article 27 enshrines the right to equality and freedom from discrimination in the
following terms;
“(1) Every person is equal before the Law and has the right to equal protection and
equal benefit of the Law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental
freedoms.
(3) Women and men have the right to equal treatment, including the right to equal
opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any
ground, including race, sex, pregnancy, marital status, health status, ethnic or social
origin, colour, age, disability, religion, conscience, belief, culture, dress, language or
birth.

263 [2010] eKLR

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(5) A person shall not discriminate directly or indirectly against another person on any
of the grounds specified or contemplated in clause (4).
(6) To give full effect to the realisation of the rights guaranteed under this article,
the State shall take legislative and other measures, including affirmative action
programmes and policies designed to redress any disadvantage suffered by individuals
or groups because of past discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any benefits to be
on the basis of genuine need.
(8) In addition to the measures contemplated in clause (6), the State shall take legislative
and other measures to implement the principle that not more than two-thirds of
the members of elective or appointive bodies shall be of the same gender.”
An excellent case that considered the case of discrimination against women was the
case of Rose Wangui Mambo and others v Limuru Country Club and 17 others.264 The court
observed that the club by amending its by-law by adding a clause that states that:
“The golf committee being a male only affair, only full male members with valid
handicaps, and who are fully paid up, will be allowed to participate in the meeting and the
lady golfers will attend the meeting as guests.”

was patently discriminatory on the ground of gender by its reference to the committee
being a ‘male only affair’ and by purporting to confine participation to the male gender. It
also has a discriminatory effect as it serves to exclude the participation of female handicaps
in the Club’s general meeting. This was clearly antithetical to the provisions of clauses (3)
and (5) of Article 27 of the Constitution.

In summation the three Judge bench held:

1. The Court has the constitutional mandate to hear and determine disputes relating
to allegations of violations of fundamental rights and freedoms under article 165 as
read with article 23.
2. Article 22 entitles every person to move this Court claiming that a fundamental
right has been infringed or is threatened with infringement.
3. The Bill of Rights binds all state organs and all persons, corporate or incorporate,
by dint of article 2(1). Consequently, the 1st respondent, a corporate body, is bound
to respect and observe the fundamental rights of its members and of all persons.
4. The constitutional protections apply both vertically and horizontally. As to what
extent they apply horizontally depends on the context and unique circumstances
of individual cases including availability of alternative remedies.
5. The alternative dispute resolution mechanisms provided under the Club’s internal
mechanisms were intended to address the petitioners’ grievances. Attempts at
mediation yielded no fruits. Avenues of alternative dispute resolution were pursued
but were ineffectual.
6. Consequently, the Court has jurisdiction and can intervene to exercise jurisdiction
and inquire into the issues the subject of the present matter.

4.14.1 Discrimination defined

Peter K.Waweru v Republic265 was the case where the court defined discrimination as:
“…Discrimination means affording different treatment to different persons attributable
wholly or mainly to their descriptions by…sex whereby persons of one such description
are subjected to…restrictions to which persons of another description are not made

264 [2014] eKLR

265 [2006] eKLR
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subject or are accorded privileges or advantages which are not accorded to persons of
another such description…Discrimination also means unfair treatment or denial of
normal privileges to persons because of their race, age, sex…a failure to treat all persons
equally where no reasonable distinction can be found between those favoured and those
not favoured”

4.14.2 Private Clubs Must Observe Rules of Natural Justice

In Patel and others vs Dhanji and others266, it was observed that:
“…The courts will entertain suits by members claiming to have been irregularly or
improperly expelled, and will interfere if the rules providing for expulsion have not been
strictly observed, or if the principles of natural justice have been violated. The foundation
for this jurisdiction is the right of property vested in the member, of which he is unjustly
deprived by the unlawful expulsion, See Halsbury’s Laws of England, Vol. 6. Edition;
paragraph. 238…”

4.14.3 Disclosure of Medical Condition is Breach of Right to Dignity

Justice Lenaola in the case of C.O.M. v Standard Group Limited and another267states as
follows:
“The Constitutional Court of South Africa in the case of NM and Others v Smith and Others
(Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC) held that the
disclosure of a person’s HIV status by another violated the dignity and psychological
integrity of that person.’’

In the case of Vmk v Cuea Cause No. 1161 of 2010 Justice Nduma considered the
case of a lady whose HIV status was tested without her consent and the results
forwarded to her employer. Following her unpaid maternity leave, her employment
was immediately terminated. The judge held, inter alia:
“66. Relying on the case of Air-India Statutory Corporation v United Labour Union reported
in 1996 (6) Scales 70 (1997 AIRSCW 430) the Judge observed:
“This court has held that right to life to a workman would include right to continue
in permanent employment which is not a bounty of the employer nor can its
survival be at the volition and mercy of the employer. Income is the foundation to
enjoy many fundamental rights and when work is the source of income, the right to
work would become as such a fundamental right. Fundamental rights can ill-afford
to be consigned to the limbs of undefined premises and uncertain application.”
I could not agree more.
67. It is this court’s considered view that an employee or prospective employee may not
be medically unfit merely by virtue of having been infected by HIV. The respondent
grossly erred in refusing the claimant herein employment on a permanent basis on
the basis of her HIV status. Further the respondent grossly breached her right
to employment and equal treatment by subjecting her continuously to casual
employment and inferior remuneration purely on the basis of her HIV status.
68. Furthermore, the respondent committed a cardinal sin, by terminating her
employment under the pretext that her short term contract had expired when the
sole reason for the adverse decision was her HIV status. In the matter of Gary Shane

266 [1975] EACA 301

267 [2013] eKLR
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Allpass v Moikloof Estate (Pty) Ltd t/a Moikloof Equistran Centre Respondent; Labour
Court of South Africa held at Johannesburg Case No. JS1 178/09; The applicant
sought relief arising from his alleged automatically unfair dismissal on the grounds
of his HIV status in terms of section 187(1)(f) of the Labour Relations Act, 60 of
1995 (LRA).
In the alternative, the applicant pleaded his dismissal was substantively and
procedurally unfair in terms of Section 188 of the LRA.
69. In determining the issue whether the applicant was unfairly discriminated against
on the basis of his HIV status and if so, the appropriate relief to which he is entitled,
the court had due regard to the constitutional and labour law provisions in South
Africa on the subject.
In particular section 97 of the Constitution of the Republic of South Africa Act,
108 of 1996 which states;
“1. Everyone is equal before the law and has the right to equal protection and
benefit of the law;”
and Section 6(1) of the Employment Equity Act, which specifically prohibits
discrimination on grounds of HIV status inter alia.
Section 5(3)(a) of the Employment Act, 2007 of Kenya as earlier said is similar
to section 6(1) of the Employment Equity Act, aforesaid.
Whereas article 28 of Kenya Constitution 2010 provides;
“Every person has inherent dignity and the right to have that dignity respected and
protected.”
And in addition, article 27 (1) is on all fours with section 9 of the
South African Constitutional provision cited above on equality before the law,
equal protection and equal benefit of the law.
70. Having regard to these provisions inter alia, Justice Bhoola, on page 192 paragraph
14 held;
“That the denial of employment to the appellant because he was living with HIV
impaired his dignity and constituted unfair discrimination.”
The court further found that the discriminatory dismissal was not justified by an
inherent job requirement as was the case in Leonard Digler Employee Representative
Council and others v. Leonard Digler (Pty) Ltd  and others (1997) 11 BLLR 1438 LC at
148 H.
In the present case, this was not raised as a defence and we will say no more of it at
this stage.
The court is fortified by this decision in holding unequivocally that the decision not
to employ the claimant on permanent terms, and the final decision to terminate her
employment were discriminatory in that they were solely based on the claimant’s
HIV status.’’
After finding for the petitioner in the above case, Justice Nduma, proceeded to
concisely address the measure of damages to be awarded and held as follows [we
reproduce this part of the judgment because it concisely sets out how the damages
are assessed]:
75. The cumulative effect of these actions against the Claimant constitute gross affront
on her human dignity contrary to article 28 of the Constitution; a gross violation
of her right to fair labour practices which include a right to fair remuneration and
to reasonable working conditions contrary to section 41 of the Constitution.
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4.14.4 Exemplary Damages for Discrimination

The court has documented well the litany of violations subjected on a young woman
just because of her HIV status. The court will not belabour these particulars any
further but acknowledge the courage of the claimant and her sense of dignity in spite
of gross violation of her human dignity at the hands of the respondent for a period of
about seven (7) years.
As stated by Hon. Justice Majanja in Samura Engineering Limited and 10 others v Kenya
Revenue Authority [2012] eKL12, “the purpose of the right to privacy is to protect human
dignity which is itself a right under Article 28”
The judge went ahead to award Kshs 1.2 million to the Plaintiff for violation of this right.
In Rookes v Bernard [1964] AC 1129, Lord Devlin, C.J. discussing exemplary damages
stated;
“that first it is awarded against tortuous intrusions or trespasses that are profit motivated
i.e. wrongful landlord evictions of their tenants or secondly where there is oppressive
conduct by government agents and thirdly where the act of the defendants has caused distress
and intolerable anxiety and to be awarded as a punishment.” Emphasis mine.
In the case of Daniel Musinga T/A Musinga & Co. Advocates (sic) v Nation Newspapers
Limited [2006] EKLR, the court in awarding the plaintiff KShs.10, 000,000 damages for
defamation stated;

“The court has to look at the whole conduct of the parties before action, after action
and in compensatory damages such sum, as will compensate him for the wrong
he has suffered. An award of damages must cover injured feelings, the anxiety and
uncertainty undergone during the court trial.”

In the present case the anxiety of the claimant upon being recommended for appointment
permanently with prospects of much higher pay; no communication from the respondent
until 2 April 2003 when she received the letter inviting her to discuss new terms, until five
(5) years down the line on 28 September, 2007 when she was given a one-year contract
was too much to bear.

The blatant confrontation by the Human Resource Officer who told her that people with
HIV status could not be employed permanently. The testing of HIV status without her
consent and the disclosure of her status to 3rd persons without her authority demonstrates
the seriousness of the violations and the need to compensate the claimant for the hurt
feelings and eventual loss of employment due to HIV status.

Having considered all these matters and the failure by the respondent to confront its
despicable conduct by avoiding to bring the actual perpetrators before court to explain
themselves, the court awards damages in the sum of Kenya shillings five million (KShs
5,000,000) to the claimant.’’

4.15 Conclusion
There is a plethora of cases available online that will guide an advocate on various
aspects of constitutional interpretation.
One must create the time to enhance one’s knowledge and experience and assist
the client and the court in arriving at a judicious decision.
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Schedule
The Constitution of Kenya (Protection of Rights and Fundamental
Freedoms) Practice and Procedure Rules, 2013
Special Issue 1743 Kenya Gazette Supplement No. 95 of 28 June 2013(Legislative
Supplement No. 47) Legal Notice No. 117 The Constitution of Kenya

Part I ––Preliminary

1. These Rules may be cited as the Constitution of Kenya (Protection of Rights and
Fundamental Freedoms) Practice and Procedure Rules, 2013.
Citation.
2. In these Rules, unless the context requires otherwise—
“Constitution’’ means the Constitution of Kenya;
“cost’’ means lawyers’ fees and other disbursements of the parties but does not include
court fees;
“Court of Appeal” means the Court of Appeal of Kenya established by article 164 of
the Constitution;
“document “includes––
(a) any publication, or any matter written, expressed, or inscribed on any substance
by means of letters, figures or marks, or by more than one of those means, that
is intended to be used or may be used for the purpose of recording that matter;
and
(b) electronic files;
“friend of the court” is an independent and impartial expert on an issue which is the
subject matter of proceedings but is not party to the case and serves to benefit the
court with their expertise;
“High Court” means the High Court of Kenya established by article 165 of the
Constitution and includes courts with the status of a High Court established under
article 162(2) of the Constitution;
“informal documentation” includes any legible document in any language that is
simple, does not conform to any particular form or rules of grammar and conveys
information;
“interested party” means a person or entity that has an identifiable stake or legal
interest or duty in the proceedings before the court but is not a party to the
proceedings or may not be directly involved in the litigation;
“person” includes an individual, organisation, company, association or any other body
of persons whether incorporated or unincorporated;
“petitioner” means any person who institutes proceedings or cross-petitions under
these rules and for the purposes of a cross-petition includes a cross-petitioner;
“Registrar” includes assistant and deputy registrar in any particular court;
“respondent” means a person who is alleged to have denied,violated or infringed, or
threatened to deny, violate or infringe a right or fundamental freedom;
“service” means delivery of an order, summons, or other legal papers to the person
required to respond to them; and
“Supreme Court” means the Supreme Court of Kenya established by article 163 of
the Constitution.
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3.(1) These Rules shall apply to all proceedings made under article 22 of the
Constitution.
(2) The overriding objective of these Rules is to facilitate access to justice for all
persons as required under article 48 of the Constitution.
(3) These Rules shall be interpreted in accordance with article 259(1) of the
Constitution and shall be applied with a view to advancing and realising the—
(a) rights and fundamental freedoms enshrined in the Bill of Rights; and
(b) values and principles in the Constitution.
(4) The Court in exercise of its jurisdiction under these Rules shall facilitate the just,
expeditious, proportionate and affordable resolution of all cases.
(5) For the purpose of furthering the overriding objective, the Court shall handle
all matters presented before it to achieve the—
(a) just determination of the proceedings;
(b) efficient use of the available and administrative resources;
(c) timely disposal of proceedings at a cost affordable by the respective parties; and
(d) use of appropriate technology.
(6) A party to proceedings commenced under these Rules, or an advocate for such
party is under a duty to assist the Court to further the overriding objective of these
Rules and in that regard to—
(a) participate in the processes of the Court;
(b) comply with the directions and orders of the Court.
(7) The Court shall pursue access to justice for all persons including the—
(a) poor;
(b) illiterate;
(c) uninformed;
(d) unrepresented; and
(e) persons with disabilities
(8) Nothing in these Rules shall limit or otherwise affect the inherent power of the
Court to make such orders as may be necessary for the ends of justice or to prevent
abuse of the process of the Court.

Part II—Procedure for Instituting Court proceedings

4.(1) Where any right or fundamental freedom provided for in the Constitution is
allegedly denied, violated or infringed or threatened, a person so affected or likely to
be affected, may make an application to the High Court in accordance to these Rules.
(2) In addition to a person acting in their own interest, court proceedings under
subrule (1) may be instituted by—
(i) a person acting on behalf of another person who cannot act in their own name;
(ii) a person acting as a member of, or in the interest of, a group or class of persons;
(iii) a person acting in the public interest; or
(iv) an association acting in the interest of one or more of its members.
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Contravention of Rights or Fundamental Freedoms

5. The following procedure shall apply with respect to addition,joinder, substitution
and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should
be sought, the petitioner may join two or more respondents in order that the
question as to which of the respondent is liable, and to what extent, may be
determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of
parties, and the Court may in every proceeding deal with the matter in dispute.
(c) Where proceedings have been instituted in the name of the wrong person as
petitioner, or where it is doubtful whether it has been instituted in the name of
the right petitioner, the Court may at any stage of the proceedings, if satisfied that
addition, joinder,substitution and striking out of parties, the proceedings have
been instituted through a mistake made in good faith, and that it is necessary
for the determination of the matter in dispute, order any other person to be
substituted or added as petitioner upon such terms as it thinks fit.
(d) The Court may at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear just—
(i) order that the name of any party improperly joined, be struck out; and
(ii) hat the name of any person who ought to have been joined, or whose
presence before the court may be necessary in order to enable the court
adjudicate upon and settle the matter, be added.
(e) Where a respondent is added or substituted, the petition shall unless the court
otherwise directs, be amended in such a manner as may be necessary, and
amended copies of the
petition shall be served on the new respondent and, if the court thinks, fit on the
original respondents.
6. The following procedure shall apply with respect to a friend of the court—
(a) The Court may allow any person with expertise in a particular issue which is
before the Court to appear as a friend of the Court.
(b) Leave to appear as a friend of the Court may be granted to any person on
application orally or in writing.
(c) The Court may on its own motion request a person with expertise to appear as
a friend of the Court in proceedings before it.

Friend of the Court

7. (1) A person, with leave of the Court, may make an oral or written application to
be joined as an interested party.
(2) A court may on its own motion join any interested party to the proceedings
before it.

Interested Party.
8. (1) Every case shall be instituted in the High Court within whose jurisdiction the
alleged violation took place.
(2) Despite subrule (1), the High Court may order that a petition be transferred
to another court of competent jurisdiction either on its own motion or on the
application of a party.
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Place of Filing
9.(1) The Court may direct that notice of institution of petition be posted on the
Court notice board or be published in the Gazette, a daily newspaper with national
circulation or the Judiciary’s website.
(2) The notice referred to in subrule (1) shall—
(a) contain a brief summary of the case, reference to the provisions of the Constitution
violated or infringed and the Notice of institution of the petition relief sought; and
(b) be approved by the Registrar.
10. (1) An application under rule 4 shall be made by way of a petition as set out in
Form A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person
in whose name the petitioner has instituted the suit; or in a public interest case
to the public,class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the
petitioners, which is related to the matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner;
and
(g) the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or
any other informal documentation which discloses denial, violation, infringement or
threat to a right or fundamental freedom.
(4) An oral application entertained under subrule (3) shall be reduced into writing
by the Court.
Form of Petition

11. (1) The petition filed under these rules may be supported by an affidavit.
(2) If a party wishes to rely on any document, the document shall be annexed to
the supporting affidavit or the petition where there is no supporting affidavit.
Documents to be Annexed to Affidavit or Petition
12. The Registrar shall cause a prescribed form to be available in the Registry to assist
petitioners who bring oral applications to have them reduced in writing.
Registrar to Assist in Filing of Petitions.

13. A petition filed under certificate of urgency may be placed before a Judge for
appropriate orders or directions.
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Petition Filed under Certificate of Urgency

14. (1) The petitioner shall serve the respondent with the petition,documents and
relevant annexures within 15 days of filing or such time as the court may direct.
(2) Proof of service shall be the affidavit of service set out in Form B in the
Schedule with such variations as may be necessary.
Service of Petition

15. (1) The Attorney-General or any other State organ shall within fourteen days of
service of a petition respond by way of a replying affidavit and if any document is
relied upon, it shall be annexed to the replying affidavit.
(2) (a) A respondent not in the category of subrule (1) shall within seven days file
a memorandum of appearance and either a—
(i) replying affidavit; or
(ii) statement setting out the grounds relied upon to oppose the petition;
(b) After filing either of the documents referred to in subrule (2)(a), a respondent may
respond by way of a replying affidavit or provide any other written document as a
response to the petition within fourteen days.
(3) The respondent may file a cross-petition which shall disclose the matter set out in
rule 10(2).
16. (1) If the respondent does not respond within the time stipulated in rule 15,
the Court may hear and determine the petition in the respondent’s absence.
(2) The Court may set aside an order made under subrule (1) on its own motion
or upon the application of the respondent or a party affected by the order.
Failure to Respond within Stipulated time.

17. The Court may on its own motion or on application by any party consolidate
several petitions on such terms as it may deem just.
Consolidation

18. A party that wishes to amend its pleadings at any stage of the proceedings may do
so with the leave of the Court.
Amendment of Pleadings.

19. A formal application under these Rules shall be by Notice of Motion set out in
Form D in the schedule and may be supported by an affidavit.
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302 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Formal Applications.
Part III —Hearing and Determination of Court Proceedings
Hearing of the Petition

20. (1) The hearing of the petition shall, unless the Court otherwise directs, be by way
of—
(a) affidavits;
(b) written submissions; or
(c) oral evidence.
(2) The Court may limit the time for oral submissions by the parties.
(3) The Court may upon application or on its own motion direct that the petition
or part thereof be heard by oral evidence.
(4) The Court may on its own motion, examine any witness or call and examine or
recall any witness if the Court is of the opinion that the evidence is likely to assist the
court to arrive at a decision.
(5) A person summoned as a witness by the court may be cross-examined by the
parties to the petition.
Evaluating Petition for Directions and Allocating Hearing Dates

21. (1) In giving directions on the hearing of the case, a Judge may require that parties
file and serve written submissions within fourteen days of such directions or such
other time as the Judge may direct.
(2) A party who wishes to file further information at any stage of the proceedings
may do so with the leave of the Court.
(3) The Court may frame the issues for determination at the hearing and give such
directions as are necessary for the expeditious hearing of the case.
Written Submissions

22. (1) Each party may file written submissions.

(2) Subject to such directions as may be issued by the court, written submissions
shall contain the following—
(a) a brief statement of facts with reference to exhibits, if any, attached to the
petition;
(b) issues arising for determination; and
(c) a concise statement of argument on each issue incorporating the relevant
authorities referred to together with the full citation of each authority.
(3) Copies of the authorities to be relied on shall be attached to the written
submissions.
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Conservatory or Interim Orders

23. (1) Despite any provision to the contrary, a Judge before whom a petition under
rule 4 is presented shall hear and determine an application for conservatory or interim
orders.
(2) Service of the application in subrule (1) may be dispensed with, with leave of
the Court.
(3) The orders issued in subrule (1) shall be personally served on the respondent or
the advocate on record or with leave of the Court, by substituted service within such
time as may be limited by the Court.
Application under rule 21

24. (1) An application under rule 23 may be made by way of notice of motion or by
informal documentation.
(2) Where an oral application is made under rule 23, the Court shall reduce it in
writing.
Setting Aside, Varying or Discharge.

25. An order issued under rule 22 may be discharged, varied or set aside by the Court
either on its own motion or on application by aparty dissatisfied with the order.
Costs

26. (1) The award of costs is at the discretion of the Court.

(2) In exercising its discretion to award costs, the Court shall take appropriate
measures to ensure that every person has access to the Court to determine their rights
and fundamental freedoms.
Withdrawal or Discontinuance

27. (1) The petitioner may—

(a) on notice to the court and to the respondent, apply to withdraw the petition; or
(b) with the leave of the court, discontinue the proceedings.
(2) The Court shall, after hearing the parties to the proceedings,decide on the
matter and determine the juridical effects of that decision.
(3) Despite subrule (2), the Court may, for reasons to be recorded, proceed with
the hearing of a case petition in spite of the wish of the petitioner to withdraw or
discontinue the proceedings.
Acquiescence

28. If the respondent does not dispute the facts in the petition whether wholly or in
part, the Court shall, after hearing the parties, make such orders as it may deem fit.
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304 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Settlement by Consent

29.The parties may, with leave of the Court, record an amicable settlement reached by
the parties in partial or final determination of the case.
Extension of Time

30. The Court may extend time limited by these Rules, or by any decision of the
Court.
Use of Alternative Dispute Resolution

31.The Court may refer a matter for hearing and determination by alternative dispute
resolution mechanism.
Stay Pending Appeal

32. (1) An appeal or a second appeal shall not operate as a stay of execution or
proceedings under a decree or order appealed.
(2) An application for stay of execution may be made informally immediately
following the delivery of judgment or ruling and the court may issue such orders as
it deems fit and just.
(3) A formal application for stay may be filed within 14 days of the decision
appealed from or within such time as the court may direct.
Revocation of part III of L.N. 6 of 2006.

33. (1) Part III of The Constitution of Kenya (Supervisory Jurisdiction and Protection
of Fundamental Rights and Freedoms of the Individual) High Court Practice and
Procedure Rules, 2006 is revoked.
(2) Despite subrule (1), a matter currently pending in Court under Part III of
Legal Notice No. 6 of 2006 may be continued under these Rules.
Court Fees

34. There shall be paid in respect of all proceedings under these Rules the same court
fees as are payable in respect of civil proceedings in the High Court in so far as the
same are applicable.
Waiver of court fees

35. (1) A person who wishes to be exempted from paying court fees may apply to the
Registrar.
(2) An application under sub-rule (1) may be made by informal documentation.
(3) The reasons for the Registrar’s decision shall be recorded.
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Practice Directions

36. The Chief Justice may issue practice directions for the better carrying out of these
Rules.
Review

37. The Chief Justice may review these Rules from time to time.
Schedule
Form A (R. 10(1))
In the High Court of Kenya at .......................Petition No. ...... of ..................20.....
In the Matter of Article 22(1)
In the Matter of Alleged Contravention of Rights or
Fundamental Freedoms Under Article (Insert Article)
.............................................................................
To:
The High Court of Kenya
The Petition of A.B (insert names of Petitioner) of (insert address of Petitioner) ......
in the Republic of Kenya is as follows- ....................(the allegations upon which the
Petitioner(s) rely must be concisely set out, in consecutively numbered paragraphs
and should address the following:
(a) the facts of the case,
(b) nature of the injury caused or likely to be caused to petitioner or public in public
interest suits,
(c) details regarding any civil, criminal or other litigation involving the
petitioner which could have a legal nexus with the issue raised in the suit)
………….............……………..
Your Petitioner(s) therefore pray(s) that .........................................
(set out exact order(s) sought) ........................................................
Or that such other order(s) as this Honourable Court shall deem just.
Dated at .................. this .................day of ......................20....................
Signed ............................... Petitioner/Advocate for the Petitioner
Drawn & Filed by:

To be Served Upon:

Between
A.B. (Insert Names of Parties) ...................................... Petitioner
and
C.D. (Insert Names of Parties) ......................................Respondent
1752 Kenya Subsidiary Legislation, 2013
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306 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Form B (R. 14(2))

Affidavit of Service (Title)
I.......................................of.............................. an adult of sound mind/advocate/a
police officer/a process server of the court make oath and say as follows:
(1) On .................................... 20 .................at.....................(time) I served the
petition/replying affidavit/document in this case on.............(name) at..............(place)
by tendering a copy thereof to him/her and requiring a signature on the original.
He/she signed/refused to sign the petition/replying affidavit/document. He/she was
personally known to me/was identified to me by.....................and admitted that he/
she was the respondent/petitioner.
(2) Not being able to find the respondent/petitioner on................20...............at
..............................(time) I served the petition/replying affidavit/document on......
..........................(name) an adult member of the family of the respondent/petitioner
who is residing with him/her.
(3) Not being able to find the respondent/petitioner or any person on whom service
could be made, on...............20 ......at ...........(time), I affixed a copy of the petition/
replying affidavit/document to the outer door of.............................being the house
in which he/she ordinarily resides/carries on business/personally works for gain. I was
accompanied by ....................................................who identified the house to me.
(4) (Otherwise specify the manner in which the petition/replying affidavit/document
was served).
Sworn by the said ............................................this........................
day........................................of..........................20.......................
Before me....................................................................................
A Commissioner of Oaths/Magistrate.
Kenya Subsidiary Legislation, 2013 1753
Form C (R. 22(3)
Substituted Service by Advertisement
To:................................................................................................
of..................................................................................................
Take notice that a petition has been filed in the .................Court at .................in
Civil Suit No. ...........of 20 ............, in which you are named as respondent. Service
of the petition on you has been ordered by means of this advertisement. A copy of the
petition may be obtained from the court at.......... (insert postal address of registry).
And further take notice that, unless you enter an appearance within ................ days,
the case will be heard in your absence.
_________________________
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A Litigator’s Guide to Topical Constitutional Issues - Simplicity in Demystifying the Complex 307

Form D
Title (as in the Petition)
Notice of Motion
Take Notice that that this Honourable Court shall be moved on the........................day
of.......................... 20.............. at 9:00 o’clock in the forenoon or as soon thereafter
as the applicant/counsel for the applicant may be heard on an application for orders: -
(a)
(b)
Which application is made on the following grounds: -
(i) ...................................................................................
(ii) ...................................................................................
(iii) ...................................................................................
and which application is supported by the annexed affidavit of and by such other
grounds, reasons and arguments as shall be adduced at the hearing hereof.
Dated at .................................. this day of ...........................................20.................
1754 1754 Kenya Subsidiary Legislation, 2013

Applicant/Advocates for the Applicants

Drawn and filed by:

To be served upon:
“If any person served does not appear at the time and place above mentioned such
orders shall be made and proceedings taken as the court deems just and expedient”.
Dated 25 June 2013.
Willy Mutunga,
Chief Justice.
Printed and Published by the Government Printer, Nairobi
 Chapter 5

Court Mandated Mediation - the Final Solution

to Expeditious Disposal of Cases

5.1 Introduction
For many years we have all been lamenting about the monotony of litigation and the
constant backlog of cases that keep mounting as days go by. In many instances legal
practitioners become disillusioned with litigation practice and reminisce about the
good old days when things worked. Well, those historical days are long gone and we
are now faced with a deluge of cases brought about by an increasing litigious society.
The present population has now increased four-fold since the golden days and has
become increasingly aware of its legal rights.
When I was the convener of the Law Society of Kenya Litigation Committee
in 2004, we toyed with the idea of court mandated mediation. Soon thereafter the
Society was co-opted in a larger committee that was set up by the Chartered Institute
of Arbitrators to draft Kenya’s first Court Mandated Mediation Rules. I was honoured
to be appointed to head the sub-committee to draft the Court Mandated Mediation
Rules. My committee comprised Steve Kiaru (now Court of Appeal Judge) and
Florence Jaoko. The main committee had collated information on court mandated
mediation from various jurisdictions. We met on a Saturday morning and between 9
am and 5 pm we had agreed on the draft Rules and Forms. I went with the raw draft
and typed it out at night. I completed the task on Sunday morning at 1 am.
In 2005 I presented this paper at the Law Society of Kenya Annual Conference. At
the time, many advocates thought that mediation was going to take away work from
advocates.Ten years after the Rules were first drafted, the trial pilot phase commenced
in the Commercial and Family Division of the High Court in Nairobi in 2015.

5.2 Why Embrace Alternative Dispute Resolution Mechanisms?

We all appreciate the myriad of problems we all face in the arduous task of litigation.
The immense backlog of cases, the past strikes of advocates complaining about
shortage of judicial officers and an overworked Judiciary have wreaked havoc to the
expeditious conclusion of cases.
The judiciary has set out the following statistics in its publication “State of the
Judiciary and the Administration of Justice’’ as regards the filing of cases in the year
2012-2013.268 The report reads:
“The most visible quantitative indicator of service delivery of justice is the numerical
turnover of cases. The total number of cases filed is an important indicator of people’s
confidence in the court. In the reporting period, 116,754 new cases were filed in courts
across Kenya. During the same period, the courts heard and determined some 190,093
cases. This means that on average all the courts across Kenya completed 757 cases every

268 Annual Report 2012-2013.

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310 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

working day. Still, some 657,760 are pending.’’

A total of 116,754 new cases were filed in courts across Kenya. The courts heard and
determined some 190,093 cases.
Table 1.1: Consolidated Caseload for all Courts, 2012/13
Court Filed Resolved Pending
Supreme 18 11 7
Court of Appeal 1,162 1,191 5,687
High Court 54,602 26,502 162,772
Magistrates Court 60,484 163,132 485,976
Kadhis Court 488 257 3,318
TOTAL 116,754 191,093 657,760269

The bulk of the Judiciary’s service delivery occurred in the Magistrates’ and Kadhis’
courts, where Kenyans first - and often last - interact with the Judiciary. During
the period under review, the total caseload in Magistrates’ and Kadhis’ courts was
652,683. Of these, 60,484 new cases were initiated in the Magistrates’ courts, which
also resolved 163,132 cases and still had 485,976 pending by 30 June 2013. Another
488 cases were commenced in the Kadhis’ courts, which resolved 257 and had 3,318
still pending by 30 June 2013.
These numbers present a mixed picture of triumph as well as fresh challenges
requiring quantitative and qualitative study of the Judiciary’s method and capacity
to deliver access to justice. The upsurge in recruitment of judges and magistrates,
investment in technology for better case management, review of our working
methods and introduction of an institution-wide Performance Management System,
are measures being undertaken to clear this heavy case backlog.
Matters cannot possibly be heard when one looks at the bloated cause lists in
both the High Court and the Chief Magistrates Courts. On average, it takes up to
2 hours for the court to go through its cause list before allocating time to deal with
the matters. Invariably, majority of the hearings and applications are simply taken out.
The above statistics now give credence for the need to urgently embrace Alternative
Dispute Resolution mechanisms. Of these mechanisms we shall concentrate on
mediation.
To understand what mediation is all about we shall highlight the contextual
definitions of mediation from Part 1 of the English County Court Mediation
Schemes.270 We shall address the various pertinent questions associated with mediation.

269 These figures include raw estimates of cases carried forward from previous years. A comprehensive audit
and caseload census is currently underway and will provide the definitive statistics on case backlog. -Annual
Report 2012-2013.
270 This scheme provides a toolkit meant to provide a Better Dispute Resolution Service. Part 1 consists of the
basic questions that must be answered before setting up the scheme. One can easily access this scheme on the
internet under “County Court Mediation Schemes”. It was set up around March 2005 and is the blue print
for setting up a mediation scheme in the English courts.
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 311

5.3 Mediation – what is it?

Mediation is a well-established process for resolving disputes in which people in

dispute, who have failed to reach a negotiated settlement, are assisted by a mediator to
come to a mutually acceptable outcome.
In the English county courts, mediations are time-limited, usually to a maximum
of three hours, and cost-limited.

5.4 Mediators – who are they?

The mediator is a third party who:

• Is independent, impartial, and has no stake in the outcome of the process;
• Helps parties in dispute to clarify issues, explore solutions and negotiate their own
agreement;
• Does not advise those in dispute, but helps people to communicate with one another.
The mediator’s skills include:
• Treating the parties fairly
• Helping the parties focus on the issues and on achieving a resolution
• Listening
• Being clear and open
• Having the ability to deal with impasses
• Respecting confidentiality
• Confirming the parties are satisfied with any agreement

5.5 Mediation- What are the Benefits?

Mediation offers:
• A focus on the future, with emphasis on helping parties rebuild relationships rather
than apportioning blame for what happened in the past;
• Collaborative problem-solving between those in dispute, reaching a solution which
is acceptable to all;
• Confidentiality.
In addition, mediation:
• Is generally more cost-effective than taking a case to full trial;
• Is a flexible process that can be used to settle disputes with a wider range of outcomes
that the court can offer;
• Is an excellent preventive tool which can be used to stop problems becoming worse.

5.6 When Does Mediation Work

Mediation works best when those in dispute are:
• Willing to take part;
• Prepared to be as honest and open as they can about the situation and the part they
have played in;
• Willing to work cooperatively with the other person to find a solution;
• Willing to consider continuing to have a relationship in the future as businesses,
neighbours, colleagues or family, for example;
• Put in a position where they feel safe with no threat of physical violence.
Mediation may work less when:
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312 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

• What is needed is an urgent court ruling (e.g. an injunction);

• People feel coerced into taking part;
• They have no reason to continue their business or other relationship;
• There is threat of physical violence or one party is intimidated by the other;
• There is a need for the public/legal judgment (e.g. because a legal precedent is
needed to clarify the law or inform public policy);
• The case involves human rights;
• The case involves vexatious litigants.
The rest of the world is now recognizing the reality of mediation as the panacea for
expeditious disposal of cases. The term ADR (with emphasis on mediation) has its
genesis in America as an alternative to the adversarial system of litigation, which was
cumbersome, technical and expensive.
It is with this realisation that radical surgery was required to the judicial landscape
that the Rules Committee, which is a creature of section 81 of the Civil Procedure
Rules, embarked on a national exercise that was aimed at soliciting views from the
members of the public on the changes required to bring about realistic practical and
user-friendly changes to the Civil Procedure Rules. With this in mind the Rules
Committee approached the Chartered Institute of Arbitrators with one request; create
the draft Court Alternative Dispute Resolution Rules. The institute was approached
on account of its experience in matters of arbitration, mediation, conciliation and
negotiation. Most importantly the Institute had also created its own “Draft Mediation
Rules of the Chartered Institute of Arbitrators (Kenya Branch) “It thus had the unique
advantage of having draft Rules in place. In addition, a number of its members had
attended a one-month course on mediation in the United States of America in the
month of September 2004. Their experience was an added advantage, as time would
tell.
The Institute accepted this noble task and immediately called upon other
stakeholders who duly sent their representatives. The aim was to have a broad task
force encompassing stakeholders in various professional organisations with a view to
coming up with the draft Court Mandated Mediation Rules that would be universally
accepted.

5.7 The Stakeholders

The following are the various stakeholders who comprised the membership of the
committee under the stewardship of the Chartered Instituted of Arbitrators. They
came to constitute the Alternative Dispute Resolution Task Force.The following were
the members:
1. The Law Society of Kenya. As co-convener of the Practice Committee I had already
constituted a sub-committee on drafting the Alternative Dispute Resolution Rules.
My sub-committee had also co-opted the International Commission of Jurists. This
sub-committee was co-opted into the ADR task force.
2. The International Commission of Jurists.
3. The Dispute Resolution Centre.
4. The University of Nairobi represented by the Faculty of Law- Parklands Campus.
5. The International Federation of Women Lawyers (FIDA).
6. Family Mediation Center (FAMEC).
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 313

The unique blend of various professional bodies constituted the ADR Task Force
Committee that constituted 17 members headed by Mr. O.P Nagpal – the Chairman.
This broad spectrum of professionals was aptly qualified to draft Kenya’s ADR Rules.
The first task of the committee was to appreciate that in drafting the mediation
rules, it would not be an exercise of reinventing the wheel but rather an exploration
and appreciation of what other jurisdictions had to offer.The committee was fortunate
to have a plethora of material on mediation from jurisdictions in the commonwealth
and the United States of America.

5.8 Sources of Inspiration

The task force carried out an extensive comparative analysis of the practice of ADR in
various jurisdictions worldwide. It was agreed that we would not reinvent the wheel
but instead selectively borrow the ADR practices from various jurisdictions and adapt
them to suit our own peculiar circumstances.
The following are the sources of inspiration:
a. The Centre for Effective Dispute Resolution. This is the leading ADR center in the
United Kingdom and was launched in 1990 as a non-profit organization.
b. The Arbitration and Conciliation Act, 2000 Act No. 7 of Uganda.The Ugandans have
combined Arbitration and Conciliation in one statute.
c. The High Court (Amendment) Rules, 1997 of Zambia. Rule 4 of the Zambian
Rules make it mandatory for parties to resort to mediation in all litigation cases save
for certain exceptions.
d. Order VIII A First Pre-Trial Settlement and Scheduling Conference, Order VIII B
Final Pre-Trial Settlement and Scheduling Conference and Order VIII C Arbitration,
Negotiation and Mediation Procedure of the Civil Procedure Rules of Tanzania. The
interesting aspect of the Tanzanian model is that the judge or magistrate presides and
conducts the actual settlement conferences. An independent mediator is not involved.
e. Florida Statutes Chapter 44 on Mediation Alternatives to Judicial Action.The Florida
Rules of Civil Procedure.
f. Administrative Order 3.110 (C) of the County Mediation in Alachua County. (The
County court civil actions draw heavily from the Florida Statutes).
g. Rule 24.1 Mandatory Mediation under Regulation 194 of the Revised Regulations
of Ontario, 1990 made under the Courts of Justice Act.
After researching widely and collating the material the ADR task force constituted a
sub-committee with the mandate of drafting the Rules. I had the honour of heading
the sub-committee which comprised two advocates-cum-university lecturers; Mr.
Steve Kairu and Mrs. Florence Jaoko.
Before coming up with the draft we had to appreciate how other jurisdictions
embraced Alternative Dispute Resolution mechanisms. This was important as we had
to consider the most apt means for Kenya.
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314 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

5.9 Comparative Analysis of Other Jurisdictions that Embraced

Mediation

5.9.1 Canada
Canada also at one time faced a crisis in its court system on account of the backlog of
cases. This is best exemplified by Master Robert N. Beaudoin: 271
“In Ontario, the need for our Civil Justice Reform arose from the twin evils of cost and
delay. On average, it took a civil proceeding three to five years to proceed to trial from
the date of filing with the Registrar. Complex cases took even longer. We estimated that
it took the average litigant $ 38,000 to take a case to a three-day trial. The high costs and
delays were undermining public confidence in our civil justice system and resulted in a
denial of meaningful access. Our Chief Justice described the situation as being in crisis.”

The Canadians then adopted two emerging techniques in the area of civil justice
reform: case management and mandatory referral to mediation.
The following exposition is a brief summary of Master Robert N. Beaudoin’s
paper.
1. Case Management
Case management is a process whereby the court takes over the control of the
progress of litigation and imposes timelines for the completion or critical events.
The reason for a timetable is simple; if lawyers know that their case needs to be
dealt with at a certain period of time, they will put their minds to it.They will keep
the file open and be more prepared to discuss it with the other side. In the Canadian
system the cases are assigned specific tracks.
The features of the case management system are:
3 Tracks
A fast track requires a settlement conference to be held within 180 days of filing of
the first defence. A standard track requires the settlement conference to take place
within 240 days of the first defence. Complex cases may involve a third tier known
as a customized “track”.
Case Conference
(This is similar to the former Summons for Directions that was repealed from our
Civil Procedure Rules).
Settlement Conferences
The last event before trial. If the matter cannot be resolved amicably then a trial
date assigned.
Trial Management Conferences
This is optional. Just before the trial the judge tries to explore methods of reducing
the amount of time to be spent on the trial.
Fixed Trial Dates
At the settlement conference the judge then fixes the trial date.
2. Mandatory Mediation
Mandatory mediation complements case management by requiring the parties and
their counsel, at an early stage of the proceedings, to attend before a third party with
a neutral view to resolving the dispute in a mutually acceptable way. The Canadian
experience relied on an interest-based approach. Interest-based mediation attempts
to resolve the dispute by focusing on the interest of the parties, i.e. what is the

271 Excerpts are from a paper “Case Management in Ontario” which was presented by his lordship, who is a judge
in the Superior Court of Justice, Ottawa, Ontario.
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 315

motivation behind the litigation; and by encouraging the parties to a mutually

satisfactory resolution of their dispute.
The Ontario Ministry of Attorney General set up the Ontario Mandatory Mediation
Programme, which introduced rule 24.1 Mandatory Mediation. The purpose of the
Rule was to establish a pilot project for mandatory mediation in case managed actions,
in order to reduce costs and delay in litigation and facilitate early and fair resolution of
disputes.272 Mediation was actually introduced as a practice direction.
The necessity for the pilot project was to identify the success of the mediation
process and identify what type of mediation was to be adopted. Following the pilot
scheme’s evaluation, the Canadian Rules Committee decided to make the Rule a
permanent part of the civil procedure.
The Evaluation Committee that supervised the pilot scheme concluded that:273
• Mandatory mediation under the Rule (Rule 24.1) had resulted in significant
reductions in the time taken to dispose of cases.
• Mandatory mediation had resulted in decreased costs to the litigants.
• Mandatory mediation has resulted in a high proportion of cases (roughly 40 %
overall) being settled earlier in the litigation process – other benefits being noted in
many other cases that do not completely settle.
• In general, litigants and lawyers had expressed considerable satisfaction with the
mediation process under the Rule.
• These positive findings applied generally to all cases types.
An evaluation of the pilot scheme was conducted by Dr. Julie Macfarlane of the
Faculty of Law at the University of Windsor. The following was established:274
• 54% of those cases attending the mediation settled, at least in part.
• Cases that settled at the ADR Centre did so in half the time of non-referred cases
that settle before trial.
• A majority of lawyers and clients, both in cases that settled and those that did not,
were satisfied with the process.
• A majority of lawyers considered that the referral saved legal costs to their client
both in cases that did not and did settle.
• Settlement rates were consistent across a broad category of cases.
Integration of ADR with case management significantly has contributed to the overall
success of the Canadian programme. Since the system was implemented the following
is the success rate:275
• 98% of the case managed proceedings commenced in 1997 are resolved.
• 96% of the case managed proceedings commenced in 1998 are resolved.
• 88% of the case managed proceedings commenced in 1999 are resolved.
• 61% of the case managed proceedings commenced in 2000 are resolved.
• 2% of the matters are resolved after trial.

272 The entire Rule 24.1 Mandatory Mediation can be accessed via the internet at http://www.attorney general.
jus.gov.on.ca/html/MANMED/rule.htm. This Rule is actually a complete code on the modus operandi of
court mandated mediation. It can be compared to an order in our Kenyan civil procedure rules. The draft
Order 45 B of the draft mediation rules that we set out below is a progeny of Rule 24.1
273 Evaluation of the Ontario Mandatory Mediation Program (rule 24.1) Final Report – the First 23 Months.
(March 12,2001) Robert G, Hahn and Associates Limited, Queens Printer, 2001.
274 Dr. Julie Macfarlane, Court –Based mediation for Civil Cases: An evaluation of the Ontario Court (General
Division) ADR Center (November 1995).
275 Master Robert Beaudoin’s paper supra at page 10.
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316 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

5.9.2 The United States

The United States has been the main bastion of mediation.
This is not surprising considering that millions of cases are filed there annually.
This would inundate the court system if all cases were settled through litigation.
In 1990 the US Congress passed the Civil Justice Reform Act and in 1990 the
Alternative Dispute Resolution Act (ADR).The ADR Act required each of the United
States 94 districts to authorise the use of ADR in civil actions. Each district was
permitted to design its own ADR programme. Whilst some made ADR mandatory,
most do not and the use of ADR is generally left to the discretion of the judge
assigned to the case and/or parties.
When it comes to mandatory mediation, the proactive approach of the courts is
evidenced by the decision of the US Court of Appeals for the first Circuit in In Re
Atlantic Pipe Corp (September 2002) that a federal trial court, even in the absence of a
statute or local rule authorising ADR, has the inherent authority to order mandatory
mediation if the case is appropriate for mediation and the court’s order contains
adequate safeguards.276 The court held:
“When mediation is forced upon unwilling litigants, it stands to reason that the likelihood
of settlement is diminished. Requiring parties to invest substantial amounts of time and
money in mediation under such circumstances may well be inefficient. The fact remains,
however, that none of these considerations establishes that mandatory mediation is always
inappropriate.There may well be specific cases in which such a protocol is likely to conserve
judicial resources without significantly burdening the objectors’ rights to a full, fair and
speedy trial. Much depends on the idiosyncrasies of the particular case and the details
of the mediation order…This is particularly true in complex cases involving multiple
claims and parties. The fair and expeditious resolution of such cases often is helped along
by creative solutions - solutions that simply are not available in the binary framework of
traditional adversarial litigation. Mediation with the assistance of a skilled facilitator gives
parties an opportunity to explore a much wider range of options, including those that go
beyond conventional zero-sum resolutions.”

The courts in the United States have also shown a willingness to stay proceedings
to compel performance of a mediation clause. In CB Richard Ellis, Inc. v American
Environmental Waste Management277 (December 1998) the US District Court for the
Eastern District of New York held that it was appropriate to stay proceedings and
compel mediation because the mediation clause in the disputed agreement was
sufficient to manifest the parties’ intention to attempt to settle any dispute by reference
to mediation and, further, that the mediation clause as drafted would fit within the
terms of the Federal Arbitration Act, 1988 which provided statutory powers to compel
mediation in accordance with the terms of the agreement.278

276 304 F. 3d 135, 14-5 (1st Cir. 2002) U.S App.

277 1998 US Dist. LEXIS 20064.
278 Further reading on the United States system can be obtained in an article by Kent Dreadon – “Mediation:
English Developments in an International Context”. The journal of Arbitration Volume 71 Number 2
May 2005 at page 116.
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 317

5.9.3 The English System

The use of ADR in England dates from around 1989. It was in that year that both
ADR and CEDR (the Centre for Effective Dispute Resolution) were founded.
Although ADR was already established in other jurisdictions, notably the USA, the
initial response in England was slow. The genesis of ADR orders commenced in the
commercial courts in 1993, which introduced simple forms asking parties if they had
tried the use of ADR and whether ADR had been explored with the other side. This
was essentially a practice direction implemented by the Commercial Court.
In 1998 the Court of Appeal instituted an ADR scheme. This consisted of the
Court sending a letter to the parties inviting them to consider mediation and if it was
thought inappropriate explaining why. Although in the first six months or so of the
operation of the scheme 250 letters were sent, but there were only 12 mediations.279
Between November 1997 and April 2000 38 appeal cases were mediated following
agreement by both sides.280 In an additional 99 cases one party was willing to mediate.
The main reasons for refusing to mediate included:
• a judgment was required for public policy;
• the appeal turned on a point of law;
• the past history or behaviour of the opponent.
The Civil Procedure Rules, 1998 (“CPR”) which now govern civil procedure in the
English courts resulted from a far-reaching enquiry and report by Lord Woolf. The
general aims of the report were to produce a new set of rules of the entire civil court
system. The general aims of the report were to produce a new set of rules, which
would result in litigation being avoided wherever possible, cooperation between the
parties in the course of litigation being increased, the rules and procedure being less
complex, therefore producing greater certainty, and the cost of litigation being more
affordable, predictable and proportionate to the sum at stake. Finally, a key element was
the introduction of court management of cases.
Historically, the management of civil litigation had been in the hands of the
parties, in particular the plaintiff (now called “claimant”) who was described as having
the “conduct of the case”.
The “Access to Justice” report endorsed the approach of the Commercial Court
in its practice direction in 1993, and addressed the relationship between ADR and the
courts. Lord Woolf states it would not be right for the courts to compel parties to use
ADR but he does think that where a party has unreasonably refused a proposal by the
court to attempt ADR or acts uncooperatively in the course of ADR that should be
something which the court can take into account on the question of costs.281
Unlike the Canadian Rule 24.1 which was a comprehensive and complete code,
the English Civil Procedure Rules, Part 1 is headed “Overriding Objectives” and
includes the following provisions:
1.1(1) These Rules are a new procedural code with the overriding objective of enabling
the Court to deal with cases justly.

279 ADR & the English Courts Current Issues & Future Trends – John Gatenby 25th April 2002 Addleshaw
Booth & Co. at page 2.
280 Tamara Øyre “Civil Procedure Rules and the Use of Mediation/ADR” reported at page 22 of the journal of
Arbitration Volume 70 Number 1 February 2004.
281 Gatenby ibid at page 3.
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318 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1.3 The parties are required to help the Court to further the overriding objective.
1.4(1) The Court must further the overriding objective by actively managing cases.
(2) Active case management includes…
(e) encouraging the parties to use an alternative dispute resolution procedure if
the Court considers that appropriate and facilitating the use of such procedure:
(f) helping the parties to settle the whole or part of the case.
The English did not adopt a court mandated mediation but instead opted for a court
annexed voluntary system. Pilot schemes were set up in various towns.
The oldest scheme is the Central London County Court Scheme, which was set
up post-Woolf.
Professor Hazel Genn evaluated the efficacy of the scheme and found that.282:
Demand
The rate at which parties accepted mediation offers remained at about 5% throughout
the life of the scheme and despite vigorous attempts to stimulate demand. Demand
was virtually non-existent among personal injury cases, although these comprised
almost half of the cases offered mediation. Contract, goods/services disputes and
debt cases had the highest levels of demand although the joint acceptance rate was
less than 10%. The joint demand for mediation was lowest when both parties had
legal representation.
Acceptance of mediation was highest among disputes between businesses. Interviews
with solicitors rejecting mediation revealed:
• Lack of experience and widespread ignorance of mediation among the legal
profession:
• Apprehension about showing weakness through accepting mediation within
the context of traditional adversarial litigation.
• Evidence of litigant resistance to the idea of compromise, particularly in the
early stages of litigation.
Outcomes
The majority (62 %) of the cases settled at the mediation appointment and this
settlement remained constant between case types, indicating that mediation can
be used across a wide spectrum of cases. Plaintiffs were prepared to discount their
claims heavily in order to achieve settlement.
Time and Cost
Saving in months was achieved. Only half believed they saved on costs.
Evaluation of Mediators and Mediation Process
Litigants valued:
• The opportunity to state their grievance and focus on the issues in the disputes.
• Fully to participate in a process relatively free from legal technicality.
• The qualities of the mediators.
Solicitors welcomed:
• Speed of the process.
• The opportunity to review the process with a neutral party.
• The concentration on realities.
• The opportunity to repair damaged business relationships.
Negative Assessments by Parties:
• Deficiencies in mediator’s knowledge of the law and issues in dispute;
• Undue pressure to settle and bullying by mediators;
• Mediators being “insufficiently “directive.

282 The Central London County Court Pilot Mediation Scheme Evaluation Report. Arbitration,Volume 67, No.
1 February 2001 at pages 109-112.
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 319

Mediators
Skill amongst the mediators varied. Some of the most successful mediators were
barristers, many of whom were prepared to be explicitly evaluative during the course
of mediations.
She concluded that:
• Mediation is capable of promoting settlement in a wide range of civil cases when
parties have volunteered to accept mediation.
• Personal injury cases are amenable to mediation even when both liability and quantum
are in issue. Mediation offers a process that parties to civil disputes on the whole find
satisfying.
• Conflicts can be reduced and settlements reached that parties find acceptable.
• Mediation can promote and speed up settlement.
• It is unclear to what extent mediation saves costs and unsuccessful mediation can
increase costs.
• Mediation can magnify power imbalances and works best in civil disputes when there
is some rough equality between the parties and in representation.
• Mediators require special personal qualities, good training and experience.
• Demand for mediation is very weak and the legal profession has a crucial role in
influencing demand.
She also found that the issues requiring attention were:
• The impact of weak demand of an increase in mediation fees to an economic level;
• Training of mediators;
• Quality control of mediators;
• Accountability and ethics of mediators.
It is clear that the English court annexed schemes have not proved popular.
As a further illustration on this, the Central London County Court (CLCC)
began another pilot scheme known as Automatic Referral to Mediation Scheme
(ARMS). The pilot scheme began in March 2004. In this scheme 100 cases a month
are randomly assigned to mediation rather than a hearing, and parties who do not
want to participate in mediation must justify their decision to a judge. Evidence from
Hazel Genn’s research on this pilot for the DCA (as yet unpublished) indicates that
80% of cases have sought to opt out from mediation although the proportion of cases
in which both parties opt out is higher among personal injury cases than among other
cases. Of 689 cases automatically referred to mediation between May and October
2004, only 53 mediations have taken place. However, of those that have agreed to
mediate the success rate is 66%. In a majority of cases legal advisers are advising clients
against using mediation!283
The impact of the Woolf reforms is best exemplified as follows:284
“Lord Woolf ’s approach to reform was to encourage the early settlement of disputes
through a combination of pre-action protocols, active case management by the courts
and cost penalties for the parties who unreasonably refused to attempt negotiation or
consider ADR. Such evidence as there is indicates that the Woolf reforms are working, to
the extent that pre-action protocols are promoting settlement before application is made
to the court; most cases are settling earlier and fewer cases are settling at the door of the

283 Page 3 to 4 in “Civil Justice since the Woolf reforms-how useful is ADR? ASA UK.
284 Extract from page 2 “Civil Justice since the Woolf reforms- how useful is ADR?” ASA UK. This paper can be
accessed online at http://www.asauk.org.uk/go/MiscPage_31.html
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320 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

court. In fact, most cases are settled without a hearing. However, costs have increased, or
have at least been front-loaded. In particular, in cases where mediation has been attempted
and agreement has not been reached, costs are clearly higher for the parties.”

In fact, on 13 November 2002, at the South-East European regional conference

on dispute resolution, even Lord Woolf recognised that litigants needed more
encouragement to go to mediation. “(It is) going to take a substantial period of time
until we get where we really want to with ADR.” He said that one of the reasons for
this was that mediation had not been made compulsory. (emphasis mine).
In the manual “Alternative Dispute Resolution Manual: Implementing Commercial
Mediation’’ the authors285 recognized the roles of facilitative or evaluative mediators
in assisting the parties reach a mediated settlement. They stated:
“The main types of ADR processes include: negotiation, mediation, and arbitration. Each
of them includes numerous “hybrid” processes that can be ranked in terms of the time and
resources needed to use them and reduction of the parties’ control (refer to Figure 1). It
should be emphasized that there is no one type of any dispute resolution procedure. Each
type of procedure is not a point on the continuum, but an area (segment) encompassing
a variety of modifications or other similar processes. Mediation is a particularly broad
procedure and has many variations such as facilitative, where the mediator (facilitator)
seeks to assist the parties improve their communications and clarify the issues between
them, as well as re-evaluate their positions, without passing an opinion on the merits. A
mediation can also be evaluative or directive, where the mediator gives a view on the
merits of the case. Mediation is also a base of other processes characterized by a non-
binding intervention of a neutral third party, such as conciliation or mini-trial.’’

5.9.4 Cost Sanctions on Refusal to Mediate

The English courts have in a series of judgments considered the imposition of costs
sanctions on parties for refusing to mediate.286
In Dunnet v Railtrack,287 the Court of Appeal made no order as to costs in favour
of the successful defendant.This was because the defendant had ignored the possibility
of ADR even when the court had specifically recommended it.
More recently, the Court of Appeal has given further guidance on when
cost sanctions are appropriate. In Valentine v Milton Keynes General NHS Trust288 it
distinguished Dunnet on the basis that, where a party can demonstrate it has made real
efforts to compromise the dispute, for example, by making reasonable and generous
settlement offers that had been rejected, it would not be punished in costs for refusing
to mediate.
Further in Halsey v Milton Keynes General NHS Trust,289 in dismissing two appeals
against costs awarded in favour of successful claimants who had refused to mediate, it

285 Lukasz Rozdeiczer & Alejandro Alvarez de la Campa published the manual under the auspices of the Small
and Medium Enterprise Department-The World Bank Group November 2006.
286 A brief exposition of the cases is neatly illustrated by Kent Dreadon in his article “Mediation: English
Developments in an International Context” at page 112 of the journal on Arbitration Volume 71, No.2 May
2005. I have substantially adopted his analysis of the cases.
287 [2002] 2 All E.R 850
288 [2003] EWCA Civ. 1274
289 [2004] EWCA Civ. 576
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 321

held that the burden was on the unsuccessful party seeking a costs sanction against the
successful litigant to show why there should be a departure from the general rule that
costs should follow the event. It also held that the fundamental principle was such that
such departure was not justified unless it can be shown that the successful party acted
unreasonably in refusing to mediate.The factors which the Court of Appeal suggested
were relevant to the question of whether a party unreasonably refused to mediate were
said to include (but were not limited to):
• The nature of the dispute;
• The merits of the case;
• The extent to which other settlement methods had been attempted;
• Whether the costs of the mediation would have been disproportionately high;
• Whether any delay in setting up and attending the mediation would have been
prejudicial; and
• Whether the mediation had a reasonable prospect of success.

5.10 Other than Mediation – Court Mandated Arbitration

Referred to the Deputy Registrar may be Heard in Public
Justice Odunga in the case of Senator Johnstone Muthama v Tanathi Water Services Board
and 2 others290 gave a good analysis of the difference between mediation and arbitration.
He addressed the constitutional aspects that deal with determination of disputes in a
public forum vis- à-vis the need for privacy in certain instances. In this case the parties
had agreed that the Court be at liberty to nominate any judicial officer suitable to
convene a meeting and preside over the same. The confusion that arose was whether
the dispute should be heard privately or open to the public. The court directed that
unless the Deputy Registrar directs that the press and other members of the public be
excluded pursuant to the provisions of article 50(8) of the Constitution, the arbitration
proceedings ought to be conducted in public. The court held as follows:
9. As already indicated hereinabove, this Court directed that the dispute herein be
determined by way of arbitration.The confusion in my view may have been caused
by reference to the process as mediation. According to Alternative Dispute Resolution
in Northern Carolina,edited by Jacqueline R. Clare, mediation is described at page 5 as:
“a structured negotiation conducted with the assistance of a third-party neutral,
the mediator. Unlike a judge, a mediator never has decision-making power,
his or her role being to help the parties arrive at their own resolution of their
differences. Mediation is typically consensual and confidential. It can be used to
resolve past disputes or to come to agreement on the terms of a future relationship
or interaction…The mediation process usually consists of a combination of joint
sessions and private caucuses. In joint sessions, the parties and their attorneys
present and exchange information and proposals with the assistance of the
mediator. In private caucuses the mediator confers with each side individually to
elicit information and proposals. In both processes the mediator’s objective is to
help the parties move toward agreement.” [Emphasis mine].
10. It is therefore clear that mediation is more of a private affair in which the mediator
is neither applying nor interpreting the law but just facilitating the parties to arrive
at their mutual agreement. Mediation, with its confidentiality protections, offers a
much more private, low-keyed approach to conflict resolution.
11. Arbitration, on the other hand is described in the said work at page 6 as:

290 [2014] eKLR

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322 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

“…. like litigation, a form of adjudication. The parties submit evidence and
arguments to a third-party neutral, the arbitrator, who decides the dispute and
makes an award. As in trial, arbitration is usually a win-or-lose process, though
the arbitrator’s award can have the incidental effect of facilitating a settlement.”
[Emphasis mine].
12. At page 132 it is stated:
“Arbitration hearings are scheduled by the court and are held in a courtroom (if
available) or in any other public room suitable for conducting judicial proceedings.
The hearings are open to the public. The witnesses can be called, but their testimony
is usually kept brief. The arbitrator is empowered and authorised to administer
oaths and affirmations in arbitration hearings. Hearings are to be conducted
with decorum, but are more informal than a trial in the sense that the Rules of
evidence apply only as a guideline.” [Emphasis mine].
13. It is therefore clear that unlike in mediation, arbitral proceedings are, just like in
litigation, open to the public and follows a similar procedure to that of litigations
but with a more relaxed approach. The nature of the arbitration process therefore
encompasses the application and interpretation of the law.
14. Article 50(1) of the Constitution provides:
Every person has the right to have any dispute that can be resolved by the application
of law decided in a fair and public hearing before a court or, if appropriate, another
independent and impartial tribunal or body.
15 This position was restated by the Court of Appeal in M’kiara v M’ikiandi [1984]
KLR 170 where the Court held:
“Section 77(9) of the Constitution states that a court or other authority prescribed
by law for the determination of the existence or extent of a civil right or obligation,
shall be established by law and shall be independent and impartial; and where the
proceedings for such a determination are instituted by a person before such a court
or other adjudicating authority, the case shall be given a fair hearing, within a
reasonable time. Section 77(10) of the Constitution states that except with the
agreement of all parties thereto, all proceedings of every court and proceedings for
the determination of the existence or extent of any civil right or obligation before
any other adjudicating authority, including the announcement of the decision of
the court or other authority, shall be held in public....... The oath administrator,
though still a valued respectable member of the community in some areas, is not a
court or an adjudicating authority established by law to determine the existence or
extent of any civil right or obligation. The respondent in this appeal instituted his
proceedings in the High Court and thereafter he and the appellant, were entitled
to a fair hearing (and decision) within a reasonable time and this should have taken
place in public. If they wanted their dispute resolved by the oath of administrator,
they should not have begun or continued it in a court established by law.”
16. However, article 50(8) of the Constitution provides:
This article does not prevent the exclusion of the press or other members of the
public from any proceedings if the exclusion is necessary, in a free and democratic
society, to protect witnesses or vulnerable persons, morality, public order or national
security.
17. The circumstances under which a court of law may hear matters in camera was
enumerated by the Court of Appeal in Miller v Miller [1988] KLR 555 where the
Court of Appeal expressed itself as follows:
“Subsection (11) of section 77 of the Constitution is an exception to subsection
(10) which provides that except with the agreement of all the parties thereto, all
proceedings of every court and proceedings for determination of any civil right
or obligation before any adjudicating authority shall be in public. Subsection
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 323

(11) properly construed, has several limbs, each limb independent of the other.
Interlocutory proceedings are included in the subsection as an exception to hearing
in public. The proceedings in the instant case were interlocutory and the only
question is whether the trial judge had the jurisdiction to order for the holding
of in camera proceedings.......Kenya, unlike England has a written Constitution
with a provision for hearing in camera in specified circumstances and that is the
law which the trial judge cited and relied on. English law, too lays down that
the High Court in England may hear cases in private where a public trial would
defeat the whole subject of the action, and in cases affecting lunatics and wards of
the Court....... So although the broad principle in England is that English Courts
must administer justice in public, the principle is subject to exceptions and those
exceptions and the exceptions in subsection (11) of section 77 of the Constitution,
take account at all times, of the fundamental principle that the purpose of courts of
justice is to ensure that justice is done.The paramount consideration in applying the
material exception must be that without in camera proceedings justice should not
be attained, that nothing short of excluding the public and publicity would secure
justice. An example is where evidence to be given is of such character that a witness
would not give it in public.”
18. In this case as the dispute is not a private one but a public matter, it is my view that
unless the circumstances dictate otherwise, the determination of the dispute ought
to be transparent as mandated under article 10(2)(c) of the Constitution and since
the subject of the instant arbitration proceedings is a dispute that can be resolved
by the application of law, under article 50(1) the parties thereto have a right to have
the same decided in a fair and public hearing. However, just like in litigation, the
Court has the discretion to direct in appropriate circumstances that certain parts of
evidence be heard in camera. That however is an exception to the general rule and
ought to be exercised as and when circumstances dictate.
19. Therefore, I do not agree with Mr Kiarie’s submission that in all forms of alternative
dispute resolution processes, confidentiality is not just the practice but the custom.
I did not hear Mr Kiarie to contend that the issues in dispute mandate that the
mode of hearing be in private. In fact, learned Counsel submitted that he was
not opposed to the dispute being determined through a public hearing in court
through litigation.
20. Accordingly, I direct that unless the Deputy Registrar directs that the press and
other members of the public be excluded pursuant to the provisions of article 50(8)
of the Constitution, the arbitration proceedings ought to be conducted in public.’’

5.11 The Efficacy of Mediation Committees to Resolve Disputes

Between the Senate and Parliament
Other than article 159(2)(d) of the Constitution that recognizes alternative forms
of dispute resolution including reconciliation, mediation, arbitration and traditional
dispute resolution mechanisms, articles 112 and 113 of the Constitution also provide
for settlement of disputes through mediation. In the case of Speaker of the Senate and
another v Attorney-General and 4 others291 the Supreme Court emphasized on the need
for the Senate and Parliament to constitute a mediation committee to resolve any
dispute concerning a pending Bill when disagreement arises.
In this advisory opinion the Supreme Court re-affirmed the sanctity of mediation
it resolving disputes between the Senate and Parliament. The Constitution at article

291 [2013] EKLR

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324 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

113 establishes a mediation committee consisting of equal numbers of members of

each House to attempt to develop a version of a Bill that both Houses will pass.
The Reference herein was occasioned by the act of the Speaker of one parliamentary
Chamber, the National Assembly, reversing his action of referring a legislative matter
to the other Chamber, the Senate, and having the National Assembly alone conclude
deliberations on a Bill, which was then transmitted to the President for assent and
which thereafter became enacted law.This was the Division of Revenue Bill, providing
for a sharing in finances between the national and the county governments. Whereas
the National Assembly’s stand was that the Bill was only concerned with the financing
of county government by the national government, and therefore was the exclusive
legislative responsibility of the National Assembly, the applicants maintained that as the
county governments had a major interest in the monies in question, service of that
interest, by the Constitution, involved the Senate’s legislative contribution; and that no
valid law could be enacted without such legislative contribution. Being anxious about
the due functioning of the several institutions established under the Constitution of
Kenya, 2010 and in particular, about the Senatorial function, as a safeguard for the
principle of devolved government, the applicants moved the Supreme Court for an
advisory opinion. The Supreme Court, on the issue of mediation held as follows:
“[145] It is clear to us, from a broad purposive view of the Constitution, that the intent of
the drafters, as regards the exercise of legislative powers, was that any disagreement
as to the nature of a Bill should be harmoniously settled through mediation. An
obligation is thus placed on the two Speakers, where they cannot agree between
themselves, to engage the mediation mechanism. They would each be required
each to appoint an equal number of members, who would deliberate upon the
question, and file their report within a specified period of time. It is also possible
for the two Chambers to establish a standing mediation committee, to deliberate
upon and to resolve any disputes regarding the path of legislation to be adopted for
different subject-matter.
[146] Had such an approach to the dispute been adopted, it is our opinion, this Court
would probably not have been asked to give an Advisory Opinion, as a fitting
solution would most likely have been found. What precipitated the current
situation, as is clear from the facts, is the National Assembly Speaker’s non-recourse
to the provisions of articles 110(3), 12 and 113 of the Constitution, thus improperly
excluding the prospects of consultation and mediation. Such a course of action is
precisely what Archibald Cox had in mind: “If one arm of government cannot or
will not solve an insistent problem, the pressure falls upon another”. The pressure
now falls on the Supreme Court. As we hereby render an Advisory Opinion, we
categorically affirm that lawful public-agency conduct under Kenya’s Constitution,
requires every State agent to grapple, in good faith, with assigned obligations,
and with a clear commitment to inter-agency harmony and co-operation. No
State agency, especially where it is represented by one person, should overlook
the historical trajectory of the Constitution, which is clearly marked by transition
from narrow platforms of idiosyncrasy or sheer might, to a scheme of progressive,
accountable institutional interplays.”

5.12 Amendments to the Civil Procedure Act

When the Constitution was promulgated in 2010, article 159(2)(c) expressly provides
that courts and tribunals shall be guided by the principle that alternative forms of
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 325

dispute resolution including reconciliation, mediation, arbitration and traditional

dispute resolution mechanisms shall be promoted, subject to clause (3).292
Previously, the repealed Constitution made no provision for alternative dispute
resolution. Prior to 2010 one of the reasons that the Rules Committee was reluctant
to introduce court-mandated mediation was because it was not anchored in the
Constitution.The apprehension was that a party would raise a constitutional challenge
and scuttle the application of court mandated mediation in Kenya.
When the Civil Procedure Rules were amended in 2010, Order 46, rule 20
introduced Alternative Dispute Resolution. The Rule reads:
20. Alternative dispute resolution [Order 46, rule 20.]
(1) Nothing under this order may be construed as precluding the court from
adopting and implementing, of its own motion or at the request of the parties,
any other appropriate means of dispute resolution (including mediation) for
the attainment of the overriding objective envisaged under sections 1A and 1B
of the Act.
(2) The court may adopt an alternative dispute resolution and shall make such
orders or issue such directions as may be necessary to facilitate such means of
dispute resolution.
(3) Where a court-mandated mediation adopted pursuant to this rule fails, the
court shall forthwith set the matter down for hearing and determination in
accordance with the Rules.
The committee proposed various amendments and a new Order to address mediation
exclusively. Finally, in December 2012, the Civil Procedure Act was amended pursuant
to Act No. 12 of 2012.
The following amendments were made to the Civil Procedure Act:
Section 2:

“mediation” means an informal and non-adversarial process where an impartial mediator

encourages and facilitates the resolution of a dispute between two or more parties, but
does not include attempts made by a judge to settle a dispute within the course of judicial
proceedings related thereto;

“mediation rules” means the mediation rules made under this Act;

“mediator” means an impartial third party selected to carry out a mediation;

59A. Establishment of Mediation Accreditation Committee

(1) There shall be a Mediation Accreditation Committee which shall be appointed
by the Chief Justice.
(2) The Mediation Accreditation Committee shall consist of—
(a) the chairman of the Rules Committee;
(b) one member nominated by the Attorney-General;
(c) two members nominated by the Law Society of Kenya; and
(d) eight other members nominated by the following bodies respectively—

292 Article 159(3) states that traditional dispute resolution mechanisms shall not be used in a way that contravenes
the Bill of Rights, is repugnant to justice and morality or results in outcomes that are repugnant to justice or
morality or inconsistent with the Constitution or any written law.
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326 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(i) the Chartered Institute of Arbitrators (Kenya Branch);

(ii) the Kenya Private Sector Alliance;
(iii) the International Commission of Jurists (Kenya Chapter);
(iv) the Institute of Certified Public Accountants of Kenya;
(v) the Institute of Certified Public Secretaries;
(vi) the Kenya Bankers’ Association;
(vii) the Federation of Kenya Employers, and
(viii) the Central Organisation of Trade Unions.
(3) The Chief Justice shall designate a suitable person to be the Mediation
Registrar, who shall be responsible for the administration of the affairs of the
Committee under this Act.
(4) The functions of the Mediation Accreditation Committee shall be to—
(a) determine the criteria for the certification of mediators;
(b) propose rules for the certification of mediators;
(c) maintain a register of qualified mediators;
(d) enforce such code of ethics for mediators as may be prescribed; and
(e) set up appropriate training programmes for mediators.
59B. Reference of cases to mediation
(1) The Court may—
(a) on the request of the parties concerned; or
(b) where it deems it appropriate to do so; or
(c) where the law so requires, direct that any dispute presented before it be
referred to mediation.
(2) Where a dispute is referred to mediation under subsection (1), the parties
thereto shall select for that purpose a mediator whose name appears in the
mediation register maintained by the Mediation Accreditation Committee.
(3) A mediation under this Part shall be conducted in accordance with the
mediation rules.
(4) An agreement between the parties to a dispute as a result of a process of
mediation under this Part shall be recorded in writing and registered with the
Court giving the direction under subsection (1), and shall be enforceable as if
it were a judgment of that Court.
(5) No appeal shall lie against an agreement referred to in subsection (4).
59C. Other alternative dispute resolution methods
(1) A suit may be referred to any other method of dispute resolution where the
parties agree or the Court considers the case suitable for such referral.
(2) Any other method of alternative dispute resolution shall be governed by
such procedure as the parties themselves agree to or as the Court may, in its
discretion, order.
(3) Any settlement arising from a suit referred to any other alternative dispute
resolution method by the Court or agreement of the parties shall be
enforceable as a judgment of the Court.
(4) No appeal shall lie in respect of any judgment entered under this section.
59D. Power to enforce private mediation agreements
All agreements entered into with the assistance of qualified mediators shall be in
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writing and may be registered and enforced by the Court.

The Practice Directions Relating to Case Management in the Commercial and
Admiralty Division of the High Court at Nairobi- 2014 do recognize the role of
ADR. The Case Management Checklist at item 5 makes provision for ADR and
parties are at liberty to apply for the matter to go to arbitration.

5.13 The Mediation (Pilot Project) Rules, 2015

The draft Court Mandated Rules we came up with was deliberated by the main task
force and the final draft was then presented to the Rules Committee on 30 November
2004. The Rules are a blend of the Ontario Rules spiced with the Zambian Rules.
These were considered to be the most apt for our jurisdiction. The task force carried
out a thorough and considered review and finally came up with the model qualified
for our jurisdiction. It was clear the English system was impractical as it did not have
a complete code on the practice of mediation.
The Rules Committee adopted the draft and made some modifications that
culminated in the Mediation (Pilot Project) Rules, 2015.293

The Civil Procedure Act

Mediation (Pilot Project) Rules, 2015

Arrangement of Rules
1. Title
2. Application
3. Interpretation
4. Referral to mediation
5. Notification of referral to mediation
6. Mediators
7. Time limit
8. Commencement of mediation
9. Attendance at mediation
10. Statement of understanding
11. Non-compliance
12. Confidentiality and Inadmissibility
13. Mediator’s report
14. Agreement
15. Additional mediation
16. No appeal against settlement
17. Immunity

293 On 9 October 2015, Legal Notice 197 gazetted the Rules.

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328 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Schedule

Forms

Mediation (Pilot Project) Rules, 2015

In Exercise of powers conferred by section 59A, 59B and 81 (2FF) of the Civil
Procedure Act, the Rules Committee makes the following Rules;

Title
1. These Rules may be cited as the Mediation (Pilot Project) Rules, 2015 and shall
take effect and subsist for such period as the Chief Justice may direct.

Application
2. The Rules shall during the Pilot Project apply to all civil actions filed in the
Commercial and Family Divisions of the High Court of Kenya at Milimani Law
Courts, Nairobi during the Pilot Project.

Interpretation
3. In these Rules unless the context otherwise requires –
“civil action” means a civil proceeding commenced in any manner prescribed by law save
where otherwise provided by the Court;

“court” means the Commercial and/or Family Divisions of the High Court of Kenya at
Milimani Law Courts, Nairobi;

“MAC” means the Mediation Accreditation Committee;

“mediation” means an informal and non-adversarial process where an impartial mediator

encourages and facilitates resolution of a dispute between two or more parties, but does
not include attempts made by a judge to settle a dispute within the course of judicial
proceedings related thereto;

“Mediation Deputy Registrar” means a designated Deputy Registrar in the court assigned
to handle mediation cases;

“Mediation Registrar” means the person appointed by the Chief Justice under section
59A (3) of the Civil Procedure Act;

“mediator” means an impartial third party appointed to conduct a mediation;

“pilot project” means the mediation program conducted by the court under these Rules;

“screening” means the process by which the Mediation Deputy Registrar or the Court
reviews civil actions for suitability for mediation or otherwise.

Referral to Mediation
4. (1) Every civil action instituted in court after commencement of these Rules, shall
be subjected to mandatory screening by the Mediation Deputy Registrar and those
found suitable and may be referred to mediation.
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 329

(2) Civil actions shall be screened as follows: -

(a) in the Commercial Division, cases shall be screened upon close of pleadings.
(b) in the Family Division, cases shall be screened upon filing of Plaint or petition
orother originating process, or at the close of pleadings or at any other appropriate
stage as the Court may determine.
(c) where filed prior to the commencement of these Rules and pending
determination,may be screened and referred to mediation.
(d) before a case is set down for hearing the Court may refer any case for mediation.
(3) Pending filing of the mediator’s report in accordance with rule 13 of these
Rules, the time limits applicable to civil actions under the Civil Procedure Rules shall
cease to run.
Provided that nothing in these Rules shall derogate from the jurisdiction of the court
under section 59B of the Act.

Notification of Referral to Mediation

5. Where a case is referred to mediation, the Mediation Deputy Registrar shall notify
the parties within seven (7) days of completion of screening, that the case has been
referred for mediation.The notification shall be in the prescribed Form 1. The parties
shall within seven (7) days of receipt of notification file a case summary the prescribed
Form 2.

Mediators
6. (1) Mediation under these Rules shall be conducted by a person registered as a
mediator by MAC.
(2) For each case referred to mediation, the Mediation Deputy Registrar shall
nominate three qualified mediators from the Register of mediators maintained by
MAC, and notify the parties of the names of the nominated mediators.
(3) The parties shall within seven (7) days of receipt of the nominated mediators,state
their preference in order of priority, and shall file a notice with the Mediation Deputy
Registrar.
(4) The Mediation Deputy Registrar shall within seven (7) days of receipt of the
notice, appoint a mediator giving due consideration to the parties’ preference; and
notify the parties and the notice shall be in prescribed Form 3 as set out in the
Schedule.
(5) Parties shall not pay the mediators under this pilot project: Provided that parties
may by consent select any other mediator from the MAC register within the seven (7)
days stipulated in section 6 (2) above.

Time Limit
7. Mediation proceedings shall take place and be concluded within sixty (60) days
from the date of referral to mediation provided that time may be extended for a
further period not exceeding ten (10) days by the Mediation Deputy Registrar having
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330 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

regard to the number of parties or complexity of issues or with the written consent
of the parties, which consent shall be duly filed with the Mediation Deputy Registrar.

Commencement of Mediation
8. (1) The appointed mediator shall immediately fix a date for the initial mediation
session and shall notify the parties at least seven (7) days before that date. The notice
shall be in prescribed Form 4 as set out in the Schedule.
(2) Notice of the place, date and time of the mediation session, shall be served on
the parties at the address of service provided in the case summary.
(3) The notice shall also advise parties that the mediation is mandatory.
(4) The appointed mediator shall file a copy of the notice with the Mediation
Deputy Registrar.

Attendance at the Mediation

9. (1) The parties are required to attend the mediation sessions. They may be
accompanied by an Advocate or a representative. Where the party is a corporation,
partnership, government agency or entity other than an individual, an officer duly
authorised to represent and bind the party shall attend.
(2) The mediator may adjourn a session, where a party fails to attend. Where the
session is rescheduled a notice shall be issued to the parties.
(3) The mediator shall provide guidelines on the process of mediation as appropriate
for each referral.

Statement of Understanding
10. At the commencement of the mediation session, the mediator shall read and
explain to the parties, the rules of engagement set out in the prescribed Form 5 and
shall require the parties to sign the form.

Non-Compliance
11 (1) If a party fails to comply with any of the mediator’s directions or consistently
fails to attend mediation sessions, the mediator shall file a certificate of noncompliance
in the prescribed Form 6 with the Mediation Deputy Registrar, who shall then refer
the matter back to the Court.
(2) The court may:
(a) order that the parties attend further mediation sessions on such terms as the court
considers appropriate; or
(b) strike out the pleadings of the non-complying party, unless the party satisfies the
court that there was reasonable excuse for the non-compliance and that striking
out the party’s pleadings will be inequitable;
(c) order that the defaulting party pays costs to be assessed and determined by the
Court.
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 331

(d) Make any other orders as the Court deems fit.

Confidentiality and Inadmissibility

12. (1) All communication during mediation including the mediator’s notes shall be
deemed to be confidential and shall not be admissible in evidence in any current or
subsequent litigation or proceedings.
(2) The mediator and the parties to any mediation shall treat as confidential
information obtained orally or in writing from or about the parties in the mediation
and shall not disclose that information unless:
(a) required by law to disclose;
(b) it relates to child abuse, child neglect, defilement, domestic violence or related
criminal or illegal purposes.
(3) Neither the mediator nor any person present or appearing at a mediation
session may be summoned, compelled or otherwise required to testify or to produce
records or notes relating to the mediation in any proceedings before any court of law.
(4) No person present or appearing at a mediation session shall use any electronic
device of any nature to record mediation sessions.
(5) Any breach of this rule shall constitute contempt of court.
(6) This rule shall not apply to any settlement arising from mediation.

Mediator’s Report
13. Within ten (10) days of conclusion of the mediation, the mediator shall file a
mediation report with the Mediation Deputy Registrar in the prescribed Form 7, and
provide each of the parties with a copy of the filed mediation report.

Agreement
14. (1) Where there is an agreement resolving some or all of the issues in dispute, such
agreement shall be in the prescribed Form 8, duly signed by the parties and shall be
filed by any of the parties, with the Mediation Deputy Registrar within ten (10) days
of conclusion of the mediation.
(2) Any agreements filed with the Mediation Deputy Registrar shall be adopted
by the Court and shall be enforceable as a Judgement or order of court.

Additional Mediation
15. The Court may at any stage of the court proceedings, make an order requiring the
parties to participate in additional mediation.

No appeal Against Settlement

16. No appeal shall lie against a judgment or order of the Court arising from mediation.
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332 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Immunity
17. A mediator shall enjoy the same protection and immunity as that granted to judicial
officers and judges.
Schedule

Rule 5
Form No. 1
The High Court of Kenya at ............
Plaintiff/Petitioner/Applicant
v
Defendant/Respondent
Mediation No ........... of ............
Arising Out of .......................
Notice That Case has Been Screened for Mediation
To: The Plaintiff and Defendant
Take Notice That:
1. The above cause has been screened and scheduled for mandatory mediation.
2. You are required to file a case summary in prescribed Form 2 within seven (7) days of
receipt of this notice.
Dated at ……….day of …………………2015
Deputy Registrar
Copied to the parties (and advocates if represented)

Rule 5
General Heading
No. 2
Case Summary
(To be provided to the mediator and parties at least 7 days before the mediation
session)
1. Brief summary of case
2. Issues in dispute
The plaintiff (or defendant) state that the following issues are in dispute and remain to
be resolved. Issues to be stated briefly and numbered consecutively.
3. Address of service
Name, physical and postal address, email, and telephone number.
Date Party’s signature
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 333

Rule 6(3)
No. 3
(General Heading)
Notice of Appointment of Mediator
To: Mediator
1. I certify that I have consulted the parties and the parties have chosen you to act as the
mediator.
2. Please proceed to immediately fix a date for the mediation session.
Dated at ……….day of …………………20..........
Mediation Deputy Registrar
Copied to the parties (and advocates if represented)

Rule 8(1)
No. 4
(General Heading)
Notice by Mediator
Rule 10(1) TO:
And to:
I have been assigned to conduct the mediation session under rule 1. The mediation session
will take place on (date) from (time) to (time) at (place)Unless the court orders otherwise,
you are required to attend this mediation session. If you have a lawyer representing you in
this action, he/she is also required to attend. You are required to file a case summary 7 days
before the mediation session. When you attend the mediation session, you should bring with
you any documents that you consider of importance in the action.You should plan to remain
throughout the scheduled time. If you need another person’s approval before agreeing to a
settlement, you should make arrangements before the mediation session to ensure you have
ready access to that person throughout the session even outside regular business hours.
You may be Penalized if you fail to File a Case Summary or To attend the Mediation
Session.
Date
(Name, Address, Telephone Number and Email of the mediator
cc. Deputy Registrar
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334 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Rule 10
General Heading
No. 5
Statement of Understanding
My name is ………………………………I have been assigned to mediate your case.
I will serve as a neutral party to help you resolve your dispute. I will not act as an
advocate for any party. This mediation is strictly confidential. No party shall be bound
by anything said or done in mediation unless a settlement is reached. If a settlement
is reached, it shall be reduced in writing and, once signed, shall be binding upon all
parties to the agreement. Each party agrees not to request that, I, the mediator testify
against other party, not ask me nor any other party to testify regarding statements
made in mediation.
Please sign below to acknowledge that you have read and understood this
statement and the mediation rules
Date
…………………………….. …………………………………...
Plaintiff Defendant
……………………………… …………………………………
Plaintiff ’s Advocate Defendant’s Advocate
…………………………….. …………………………………...
Mediator Mediator

Rule 11(1)
General Heading
No. 6
Certificate of non-Compliance
To Mediation Deputy Registrar
I ……………………………………., the mediator, certify that this certificate of
non-complianceis filed on account of:
Date
Name, address, telephone number and email of mediator

Rule 13
General Heading
No. 7
Mediator’s Report
To the Mediation Deputy Registrar
I ………………………. having been designated as the mediator in this action and
having conducted mediation between the parties do hereby report that the parties
have/have not reached a settlement.
Dated
……………………………………
Mediator’s signature
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 335

Rule 14(2)
General Heading
No. 8
Mediation Settlement Agreement
We, the undersigned parties to this action have agreed to settle our dispute/differences
as follows:
Date
…………………………….. …………………………………
Plaintiff Defendant
……………………………… …………………………………
Plaintiff ’s Advocate Defendant’s Advocate
…………………………….. …………………………………
Mediator Mediator
Dated the .............. September 2015
Alnashir Visram,
Judge, Court of Appeal / Chair of the Rules Committee

Code of Conductor of Mediators

At the time I presented the updated version of this paper in August 2014 at the
Chartered Institute of Arbitrators Annual Conference, I managed to obtain a copy of
the Code of Ethics for Mediators. The Code is set out below.

Code of Ethics for Mediators

Objectives
• to provide guiding principles for Mediators’ conduct;
• to provide a means of protection for the public; and
• to promote confidence in mediation as a process for resolving disputes

2. Definitions
In this Model Code of Conduct:
“Mediation” means a process in which a neutral and impartial third person, a mediator,
assists disputing parties to reach a resolution of some or all their disputes. It is an informal
and non-adversarial process intended to help disputing parties reach a mutually acceptable
agreement.

“Mediator” means an impartial person whose role in mediation is to assist and encourage
parties to a dispute to:

• communicate and negotiate in good faith with each other:

• identify and convey their interests to one another;
• assess risks:
• consider possible settlement options;
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336 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

• voluntarily resolve their dispute

The ultimate decision-making authority however rests solely with the parties.
• “Impartial” means being and being seen as unbiased towards parties to a dispute, their
interest and the options they present for settlement.
• “Impartiality” means freedom from favouritisms or bias in work, action, or appearance
and includes a commitment to assist all parties, as opposed to any one individual.
• “Conflict of interest” means direct or indirect financial or personal interests in the
outcome of the dispute or any existing or past financial, business, professional, family
or social relationship which is likely to affect impartiality or reasonably create an
appearance of partiality or bias.

3. Mediation Concepts
Mediation is based on concepts of communication, negotiation, facilitation and
problem solving that emphasize on :
• self-determination;
• the needs and interest of the parties;
• fairness;
• procedural flexibility;
• confidentiality;
• full disclosure

4. Principle of Self-Determination
i. Self-determination is the right of parties in mediation to make their own voluntary,
non-coerced decisions regarding the possible resolution of any issue in dispute
which decisions are made without any improper influence. Self-determination is a
fundamental principle of mediation which Mediators shall respect and encourage.
ii. Mediators shall provide information about their role in mediation before mediation
commences, including the fact that authority for decision-making rests on the
parties, not mediators.
iii. Mediators shall not provide legal or technical advice to the parties.
iv. Mediators shall have the responsibility to advise unrepresented parties to obtain
independent legal advice, where appropriate. Mediators also have the responsibility
to advice parties of the need to consult other professionals to help parties make
informed decisions.

5. Impartiality
i. A mediator shall serve only in those case matters in which he/she can remain
impartial
ii A mediator has a duty to remain impartial throughout the course of the mediation
process
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 337

iii. If a mediator becomes aware of his/her lack of impartiality, he/she shall immediately
disclose to the parties that he/she can no longer remain impartial and he/she shall
withdraw from the mediation and another mediator shall be appointed by the Court.

6. Conflict of Interest
i. Generally, a mediator shall not mediate a matter that presents a clear or undisclosed
conflict of interest. A conflict of interest arises when any relationship between
the mediator and the mediation participants or the subject matter of the dispute
compromises the Mediator’s impartiality.
ii. Burden of disclosure. The burden of disclosure of any potential conflict of interest
rests on the mediator. Disclosure shall be made as soon as practical or as soon as the
mediator becomes aware of the interest or relationship giving rise to the potential
conflict of interest.
iii. Effect of disclosure. After appropriate disclosure, the mediator may serve if all parties
agree. However, if conflict of interest clearly impairs a mediator’s impartiality, the
mediator shall withdraw regardless of express agreement of the parties
iv. Conflict during mediation. A mediator shall not create a conflict of interest during
the mediation. During mediation a mediator shall not provide any services that are
not directly related to the mediation process.
v Professional relationship. mediators of their associates or partners shall not establish a
professional relationship with any of the parties in the matter related to the mediation
which could give rise to a conflict of interest, without the consent of the parties.

7. Commitment
Mediators’ commitment is to the parties and the process and they shall not allow
pressure or influence from any third parties to compromise the independence of the
mediator.
Information of the type which the mediator should disclose includes:
• Having acted in any capacity for any of the parties;
• The mediator’s firm (if applicable) having acted in any capacity for any of the parties;
• Having any financial or other interest (whether direct or indirect) in any of the parties
or in the subject matter or outcome of the mediation; or
• Having any confidential information about any of the parties or in the subject matter
of the mediation.

8. Confidentiality
i. Mediators shall inform the parties of the confidential nature of mediation.
ii. Mediators shall not disclose to anyone who is not a party to the mediation any
information or documents that are exchanged for or during the mediation process
except:
• With the mediating parties’ written consent;
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338 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

• When ordered to do so by court or required to do so by law;

• When the information/documentation discloses an actual or potential threat
to human life or safety of any person if the information in question is not
disclosed;
• For the purposes of preparing any report or summary that is required to be
prepared by mediators; or
• When the information/documentation is non-identifiable, (unless all the
parties otherwise authorize identification) and is used for research, statistical,
accreditation or educational purposes and is limited only to what is required
to achieve these purposes;
• The mediator wishes to seek guidance in confidence on any ethical or other
serious question arising out of the mediation.
iii. If mediators hold private sessions (break out meetings or caucuses) with a party, they
shall discuss the nature of such sessions with all parties prior to commencing such
sessions. In particular mediators shall inform parties of any limits of confidentiality
applicable to information disclosed during private sessions.
iv. Mediators shall maintain confidentiality in the storage and disposal of mediation
notes, records and files.

9. Commitment and Availability

Before accepting an appointment, a mediator must be satisfied that he/she has time
available to ensure that the mediation can proceed in an expeditious manner.

10. Quality of the Process

i. Mediators shall make reasonable efforts to ensure the parties understand the
mediation process before mediation commences.
ii. Mediators have a duty to ensure that they conduct a process which provides the
parties with opportunity to participate in the mediation and which encourages
respect among the parties.
iii. Mediators shall inform parties to a dispute that mediation is only effective when the
parties with full authority to settle are in attendance and when they are willing to
consider options for their settlement.
iv Mediators have an obligation to acquire and maintain professional skills and abilities
required to uphold the quality of the mediation process.
v. Misrepresentation prohibited: A mediator shall not intentionally or knowingly
misrepresent any material fact or circumstance in the course of conducting mediation.
vi. Postponement or cancellation: If for any reason a party is unable to freely exercise
self-determination, a mediator shall cancel or postpone a mediation.
vii. Gifts and solicitation: A mediator shall neither give nor accept a gift or favour, loan
or other item of value in any mediation process. During the mediation process,
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 339

a mediator shall not solicit or otherwise attempt to procedure future professional

services or accept any offers made for such services.
viii. Demeanour: A mediator shall be patient, dignified and courteous during the
mediation process
ix. Integrity and impartiality: A mediator shall not accept any engagement, provide
any service, or perform any act that would compromise the mediator’s integrity or
impartiality.

11. Advertising
Mediators may not advertise nor offer services to parties, clients or potential clients:
i. Mediators shall refrain from guaranteeing settlement or promising specific results.
ii. Mediators shall provide accurate information about their education background,
mediation training and experience and other ADR skills to the Court and the parties
in any written material and in any oral explanation of the same.

12. Agreement to Mediate

Mediators shall ensure before the mediation commences that the parties understand
the terms of mediation whether or not they are contained in a court order, written
agreement or contact to mediate, which terms shall include but not be limited to the
following:
• Confidentiality of communications and documents;
• The right of the mediator and parties to terminate or suspend mediation; and
• The fact that the mediator is not compellable as a witness in court or other proceedings
by any parties to the mediation.

13. Parties’ agreement

The mediator will act in accordance with the Court order or direction or agreement
(whether written or oral) made between the parties in relation to the mediation
(“the mediation Agreement”) (except where to do so would cause a breach of this
Code) and will use his/her best endeavours to ensure that the mediation proceeds in
accordance with such terms.

14. Termination or Suspension of Mediation

• Mediators shall withdraw from mediation for the reasons referred to in paragraphs
5(iii) and 6(iii).
The mediator will withdraw from the mediation if he/she:
• Is in breach of this code; or
• Is required by the parties to do something which would be in material breach of this
code.
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340 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

i. Mediators may suspend or terminate the mediation if requested by one or more of

the parties to the mediation;
ii. Mediators may suspend mediation if in their opinion:
• the process is likely to prejudice one or more of the parties;
• one or more of the parties is using the process inappropriately;
• one or more of the parties is delaying the process to the detriment of another
party or parties;
• the mediation process is detrimental to one or more of the parties or the
mediator;
• it appears that a party is not acting in good faith; or
• there are other reasons that are or appear to be counter-productive to the
process.
iii. The mediator may withdraw from the mediation at his/her own discretion if:
• Any of the parties is acting in breach of the Court Order or direction or the
Mediation Agreement
• Any of the parties, in the mediator’s opinion, is acting in an unconscionable
or criminal manner;
• The mediator decides that continuing the mediation is unlikely to result in a
settlement; or
• Any of the parties alleges that the mediator is in material breach of this Code.
iv. Mediators shall terminate the mediation if the conditions referred to in 13(iii) are
not rectified. However, this shall not be done without first giving any defaulting
party a reasonable opportunity to rectify the default as appropriate.

15. Other Conduct of Mediation

Nothing in this Model Code of Conduct replaces, supersedes or alienates ethical
standards and codes which may be imposed or additionally imposed upon any mediator
by virtue of the mediator’s professional calling.
Professional competence. A mediator shall decline an appointment, withdraw, or
request appropriate assistance when the facts and circumstances of the case are beyond
the mediator’s skill or experience.

The Pilot Scheme

A pilot scheme begins by the screening of cases suitable for mediation.
The Judiciary in its website prepared a List of Frequently Asked Questions where it
informed the public as follows on the question of screening:

“Screening will be mandatory for all cases filed at the Commercial and Family
Divisions of the High Court in Milimani after the 4th April 2016 when the pilot
commenced.”

Cases that were filed at the Commercial and Family Divisions of the High Court in
Milimani before the pilot started may be subjected to screening.’’
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Court Mandated Mediation - the Final Solution to Expeditious Disposal of Cases 341

5.14 Evaluation of Past Pilot Schemes in Other Jurisdictions

The Leeds Combined Court Centre Mediation Scheme. A report was prepared for
the Lord Chancellor’s Department on the operation of the scheme between the
periods 1 July 2000 to 31 August 2001 by the Barbara College Leeds Metropolitan
University September 2001.
The following are the highlights of the report.

Costs of the Scheme

The users did not consider the cost prohibitive. The fees for a half day mediation
ranged from £ 250 to 650 plus VAT and £ 1,600 for accommodation. Parties thought
that the mediation had saved them on the total potential cost of resolving the dispute.

Evaluation and Feedback of the Scheme

Feedback from the scheme was based on short questionnaires obtained from the
participants. The success rate of matters settled through mediation was 57%.
We observed that in Britain, unlike Canada, mediation is court annexed and not
mandated by the rules like in Ontario, Canada. This resulted in fewer cases than in
Canada being settled through mediation.
One of the important aspects in contributing to the success of the mediation
process was the availability of information. Inadequate information was found to
contribute to the failure of a mediated settlement.
Adequate information exchange must be encouraged if our homegrown pilot
scheme is to succeed.
• The Central London County Court Pilot Mediation Scheme
• This has been dealt with earlier.
• The evaluation report (earlier mentioned) by Professor Hazel Genn (see the
Arbitration Journal volume 67 No. 1 February 2001 at page 109). This was
the first scheme in Britain and was established by the judges in 1996 for non-
family civil disputes with a value of over £ 3,000. This sum was raised to £
5,000 or higher.
The evaluation report was based on:
• data collected from hundreds of court files of mediated and non-mediated
cases;
• observation of mediation sessions.

Demand
The scheme’s demand was low, a dismal 5% throughout its life. Demand was virtually
non-existent in personal injury cases. However, mediation was popular among the
business community. The lack of demand was mainly attributed to ignorance of
mediation in the legal profession and lack of experience.
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342 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Outcomes
62% of cases that went to mediation were settled. Parties were more ready to discount
their claims to reach a mediated settlement.

Cost
The mediation fee was £100 per party. Parties are responsible for their own costs.
Some of the recommendations that emerged from the scheme were:
• Improve demand for mediation. Lawyers had a greater role to play to popularize the
method.
• Training of mediators
• Quality control of mediators.
• Accountability and ethics of mediators.
• We found that the above two schemes would guide us in setting up our own pilot
scheme.

Evaluation of the Ontario Mandatory Mediation Program

The evaluation exercise involved the participation of lawyers, mediators, litigants, and
court officials. It covered a period of 23 months. In fact, the evaluation was undertaken
by an independent party. In our case we have proposed that consultant be contracted
to carry out the evaluation exercise.

5.15 Conclusion
Once court-mandated mediation is embraced, it will go a long way in clearing the
backlog of court cases. The direct benefit will be felt as follows:
• Cases will be concluded much faster to the satisfaction of clients.
• When cases are settled expeditiously the advocates will earn fees faster and move onto
new cases.
 Chapter 6

Principles of Taxation: Procedures and Law

6.1 Introduction
I was honoured to be part of a team of advocates who were involved in the drafting
of the 2006 and 2014 Advocates Remuneration Orders. One interesting aspect when
both drafts were circulated in 2006 and 2014 is the general apathy by advocates to
comment on the drafts. In 2006, when the draft was circulated by the Law Society,
we only got about three comments countrywide. The situation slightly improved in
2014 when we got about 10 comments on the draft. However, after the respective
Remuneration Orders were passed, there was a myriad of complaints by advocates
who never bothered to contribute when asked to do so when the drafts had been
circulated during the public participation phase.
The essence of an advocate’s remuneration was enumerated in the locus classicus
case of Premchand and Raichand v Quarry Services where the Court of Appeal in 1972
held that the general level of remuneration of advocates must be such as to attract
recruits to the profession. That immortal dicta rings true today as our population
increases and the need for quality legal services escalates.
This chapter will highlight various issues pertaining to taxation based on case
law analysis. The local recommended books on taxation are Judicial Hints on Civil
Procedure, volume 1 by R Kuloba294 and Odunga’s Digest On Civil Procedure Case Law
and Procedure Volume 4295 and reference will be made to various cases cited therein that
are unreported.
Under section 44 of the Advocates Act the Council of the Law Society of Kenya
makes recommendations to the Chief Justice on all matters relating to the remuneration
of advocates who, after due consideration, gazettes the new remuneration schedule.
The Advocates (Remuneration) (Amendment) Order, 2014 came into force on
11 April 2014. Legal Notice Number 915 of 2014 brought in the Higher Scale to
Schedule 7 that had been inadvertently left out.
Compared to other professional bodies, the advocate’s scale fees are the most
competitive in the market. For instance, compare the fees charged by the following
persons:
Auctioneers - 2% is charged where the value of the matter exceeds KShs 2 million.
Architects and Quantity Surveyors - 6% on new works and 10% on existing
buildings.
It is hoped that this chapter will provide a quick guide on topical taxation issues.
It is not meant to be exhaustive.

294 Professional Publications Ltd, 1984.

295 2nd Edition, LawAfrica Publishing (K) Ltd
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344 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

6.2 What Happens When New Legal Notices Delete Schedules and
Inserts new Ones?
Work done attracts fees on the prevailing scale as a new legal notice only deletes the
schedules and inserts new ones but does not amend the rules: see Noowa Company
Limited v Athi Holdings Ltd and another296 and Mitchel Cotts (K) Limited v Amboseli Estate
Limited.297
The scope of this chapter shall be confined to taxation of costs in respect of
contentious matters.

6.3 Part IX of The Advocates Act

Part IX of the Advocates Act (hereinafter referred to as “the Act’’) deals with the
aspects concerning the remuneration of Advocates.

6.3.1 Agreements with Respect to Remuneration

Section 45 of the Advocates Act deals with agreements in respect to remuneration.
An advocate may, before, after or in the course of any contentious business make an
agreement fixing the amount of the advocate’s remuneration in respect of civil and
criminal proceedings. Let us reproduce section 45(1) of the Act:
45. Agreements with respect to remuneration
(1) Subject to section 46 and whether or not an order is in force under section 44,
an advocate and his client may—
(a) before, after or in the course of any contentious business, make an
agreement fixing the amount of the advocate’s remuneration in respect
thereof;
(b) before, after or in the course of any contentious business in a civil court,
make an agreement fixing the amount of the advocate’s instruction fee in
respect thereof or his fees for appearing in court or both;
(c) before, after or in the course of any proceedings in a criminal court or a
court martial, make an agreement fixing the amount of the advocate’s fee
for the conduct thereof, and such agreement shall be valid and binding on
the parties provided it is in writing and signed by the client or his agent
duly authorized in that behalf.
Such an agreement to be valid and binding under section 45(1) must:
• Be in writing.
• Signed by the client or his agent duly authorized in that behalf.

296 Nairobi HCCC No. 4214 of 1991 (Keiwua J on 30 May 1005) LLR 8540 (HCK)- See Odunga’s Digest
Volume 4 at page 3986 paragraph 8654.
297 Nairobi HCCC No. 5426 of 1992 (Shah J on 2 November 1994)- See Odunga’s Digest at page 3986 at page
3986 paragraph 8655.
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Principles of Taxation: Procedures and Law 345

The Supreme Court of Uganda addressed this issue in the case of Shell (U) Limited and
others v Muwema, Mugerwa Advocates and Solicitors and another298 in respect of an almost
similar provision to section 45 of our Act.
Summary of the case:
• The appellant represented over ten suppliers of petroleum and diesel products in
Uganda in a representative suit in which the plaintiffs sought the recovery of taxes
(excise duty) that had been wrongly collected from them following an order made by
the Minister of Finance but which had since expired.
• One of the fuel firms entered into a remuneration agreement with the appellant,
which was declared illegal by the High Court. The High Court also set aside a
decision of the Registrar allowing the appellant to have its legal fees, being 16% of the
decretal sum, charged upon the judgment debt. The Court of Appeal overturned the
decision of the High Court hence the appeal to the Supreme Court.
• The Supreme Court overturned the Court of Appeal judgment and held thus:
(i) Section 50(1) of the Advocates Act (equivalent to our section 45 of the Advocates
Act with a few modifications) allows an advocate to make an agreement with his
client in contentious matters. Advocates are free to enter into remuneration
agreements with their clients in terms of sections 48 and 50 of the Advocates
Act as long as these agreements comply with the requirements provided by
section 51 of the Act otherwise they are not enforceable.
(ii) The remuneration agreement was only signed by the director of Rock Petroleum
(U) Limited. The ten appellants did not sign anywhere on this remuneration
agreement as provided for in section 51(1)(b).This means that the appellants did
not authorize Rock Petroleum (U) Limited to enter into such an agreement
later or intended to be bound by its terms. The agreement does not comply
with section 51(1) (b) of the Advocates Act.
If a client is dissatisfied with the remuneration agreement, then an application must
be filed within one year after making the agreement seeking to set aside or vary the
agreement as being harsh, unconscionable or exorbitant.299

6.3.2 Liberty of Advocate to Elect Schedule V Only Applies to Non-

Contentious Matters
Part II of the Advocates Remuneration Order deals with non-contentious matters.
Now rule 22 of the Order reads as follows:
“Liberty to advocate to elect Schedule V election to be communicated to client in
writing
(1) In all cases in which any other Schedule applies, an advocate may, before or
contemporaneously with rendering a bill of costs drawn as between advocate
and client, signify to the client his election that, instead of charging under such
Schedule, his remuneration shall be according to Schedule V, but if no election

298 [2014] 3 E.A 346

299 See section 45(2) and (2A) of the Act.
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346 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

is made his remuneration shall be according to the scale applicable under the
other Schedule.
(2) Subject to paragraph 3, an advocate who makes an election under subparagraph
(1) of this paragraph may not by reason of his election charge less than the scale
fee under the appropriate Schedule.
The implication and natural interpretation is that the retainer agreement does not
concern itself with contentious matters as these are dealt with by Part III of the Order.
Logically, any advocate who has filed suit in a contentious matter should tax his fees
under the respective Schedules described in Part III.300 If he fails to comply then his
bill of costs may stand the risk of being struck off for being fatally defective.

6.3.3 Invalid Agreements

Section 46 of the Act gives 5 instances where an agreement may be invalidated but for
purpose of this paper we shall zero in on section 46(d) which reads:
“(d) any agreement by which an advocate agrees to accept, in respect of professional
business, any fee or other consideration which shall be less than the remuneration
prescribed by any order under section 44 in respect of that business or more than
twenty-five per centum of the general damages recovered less the party and party
costs as taxed or agreed;’’
The Advocates Remuneration Order provides thus:
“2. This Order shall apply to the remuneration of an advocate of the High Court by
his client in contentious and non-contentious matters, the taxation thereof and the
taxation of costs as between party and party in contentious matters in the High
Court, in subordinate courts (other than Muslim courts), in a Tribunal appointed
under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
(Chapter 301) and in a Tribunal established under the Rent Restriction Act (Chapter
296).
3. Scale of fees
No advocate may agree or accept his remuneration at less than that provided by this
Order.’’
The majority of the High Court cases hold the view that an advocate entering into
an agreement that charges fees below scale cannot benefit from that agreement. In the
case of Ahmednassir Abdikadir & Co. Advocates v National Bank of Kenya Ltd301 Justice
Ochieng held that an agreement that provides for fees, which was less than the fees
provided for in in the Remuneration Order, was illegal.

Facts
This client filed this reference seeking orders for the setting aside of the decision of
the taxing officer on the item numbered 1 on the Bill of Costs dated 27 July 2004, and
substitution of the amount allowed under that head with a sum of KShs 200,000. The
grounds were that the taxing officer erred by proceeding to carry out the taxation in
300 See rules 50 to 51C that describe the respective Schedules.
301 [2006] 1 EA 5 (CCK)
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Principles of Taxation: Procedures and Law 347

respect of the item whereas the parties had mutually agreed that the sum awardable in
respect of that item would not exceed KShs 200,000. The advocate, however, argued
that there was no valid agreement between the parties as the purported agreement was
ambiguous and was not signed by two bank officials as the bank said it would.

The Court held as follows

1. As per section 45(1), agreements in respect to remuneration would be valid and
binding on the parties thereto provided that the agreements were in writing and
signed by the client or his agent duly authorized in that behalf.The signature of
the Company Secretary was sufficient to validate the agreement and thus make
it binding on the parties thereto.
2. The certificate of inclusion issued by the client did not constitute the agreement.
It was no more than an instrument through which the advocate could
demonstrate that he had been incorporated onto the bank’s panel of advocates.
Without this certificate the advocate could not receive work. Secondly, this
certificate provided information to the advocates to whom they were issued
notifying them of the branches which the advocates were to provide services
to, as well as identifying the specific designated departments or divisions of the
branches from which the advocates were to receive instructions.
3. Having not raised before the taxing officer the points which are now being
raised, it would be wrong to then accuse the taxing officer of having erred, or
alternatively of having made the correct decision on the basis of matters which
were not canvassed before her. The advocate had submitted before the taxing
officer, that the agreement came into effect on the date it was signed. He could
not now be heard to say that the agreement was void.
4. The fact that neither of the parties had approached the subject of validity of the
agreement through the route which the issue was determined, does not negate
the fact that the issue which needed to be resolved was the validity or otherwise
of the agreement. The taxing officer cannot be said to have made an error
in principle in her decision as she relied on an authority which was binding
on her in resolving the actual issue which was in dispute between the two
parties before her. The court is entitled in appropriate circumstances to arrive
at a finding that is independent of the positions adopted by competing parties.
The only important consideration is that the decision be on the issues which
were in dispute. (National Bank of Kenya v Mahesh Manubhai Patel (Mombasa),
miscellaneous civil application number 583 of 2003 referred to.)
5. The literal usage of “scale-fees” by the advocate is not in keeping with the
actual meaning thereof. The phrase “scale-fees” is intended to, and does refer to
such fees as are prescribed in the Advocates Remuneration Order and thus, the
agreement was not ambiguous. (National Bank of Kenya v Mahesh Manubhai Patel
(Mombasa) miscellaneous civil application number 583 of 2003 referred to.)
6. Rule 11(1) of the Advocates Remuneration Order stipulates that any party
who wishes to object to the decision of the taxing master should do so within
fourteen days after the said decision. The said objection is supposed to be in
the nature of a notice in writing, notifying the taxing officer of the matters to
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348 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

which the party has objections. Upon receipt of a notice from any party who
has objections, the taxing officer is required to give to the objector, reasons
for his decisions whereupon the objector should then file his reference within
fourteen days from the date of receipt of the reasons.
7. However, since the client filed his reference after 176 days without receiving any
reasons from the taxing master implies that it did really ever need any reasons,
subsequent to the ruling in order to be able to file this reference. Therefore, to
try to justify the delay in bringing the reference by contending that they were
awaiting reasons from the taxing officer is to make a fetish of the procedural
rule in paragraph 11(1) of the Advocates Remuneration Order. (Kobil Petroleum
Limited v Almost Magic Merchants Limited High Court civil case number 1970 of
2000 (UR); Postal Corporation of Kenya v Donald Kipkorir and others, High Court
civil case number 658 of 2004 (OS) followed.)
Justice Warsame (as he then was) in the case of Njogu and Co. Advocates v National
Bank of Kenya Ltd,302 upheld the agreement that between the advocate and the client
provided for payment of lower-than-scale fees.

Facts
The advocates brought a reference against the decision of the taxing master
upholding the client’s preliminary objection. The client and advocate had entered
into an agreement regulating the fees chargeable by the advocate to 30% of the scale
fees chargeable, with any balance to be recovered from the client’s debtors during
enforcement of decree. The advocate argued that the said agreement was illegal and
a nullity because no agreement for fees at less than the amount provided by the
Advocates Remuneration Order is permissible in law.
The court held that an advocate who makes a champertous or otherwise illegal
agreement on fees is more responsible than the client and should not benefit from that
illegality to make extra fees.The relevant part of the holding on this point is as follows:
“It is clear in my mind that an advocate is permitted to enter into an agreement with any
particular client for any particular business. In doing so, he has an obligation to conform to
the requirements contained under sections 36 and 46 of the Advocates Act. If the advocate
willingly and with his legal mind, enters into an agreement with his client, then he has
a cardinal and fundamental duty to ensure compliance with the law. The law is meant
to protect the advocate from unprofessional conduct, which is contrary to the spirit and
intendment of Chapter 16 Laws of Kenya. In my humble view Chapter 16 is meant to
protect the advocate and the public from unprofessional and illegal acts or omissions. It
is the duty of the advocate that he does not put himself in situations, where he unfairly
and illegally attracts business to himself by breaking the law. That is why the law does not
permit undercutting and touting, for it accords undue advantage to a particular advocate.
The word used under sections 36 and 46 is “shall” which is mandatory in its effect and
usage.
To me an advocate is a person well-endowed with sound legal mind and judgment. He
or she is presumed to be learned in his tools of trade and the moment he submits himself

302 [2007] 1 EA 296

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Principles of Taxation: Procedures and Law 349

to a situation contrary to his professional calling, then the baby must remain on his lap. If
two parties willingly agree to conceive an idea and the same is put into writing, signed,
accepted and executed by the parties, then the court can only be called to intervene
in distinct situations. The parties herein entered into an agreement under section 45 of
Chapter 16 as read with rule 3 of the Advocates Remuneration Order. It is provided under
section 45(6) of Chapter 16 that where there is an agreement, the costs of an advocate shall
not be taxed, unless there is fraud, illegality and/or coercion in the agreement. In this case,
it is alleged that the agreement is illegal for it is contrary to the provisions of sections 44
and 46 of Chapter 16, Laws of Kenya.
There is no dispute that the agreement subject of this determination was made with sound
legal advice and at arm’s length. The question is whether the advocate should be allowed
to wriggle out of the said contract without vitiating factors, or whether the terms in the
contract can amount to vitiating factors.
In the matter of Maina Njenga and Company Advocates v National Bank of Kenya, High Court
civil case miscellaneous civil application 583 of 2003 Maraga, J held:
“It is not in dispute that the agreement provides for payment of 30% of the Advocates
scale fees excluding VAT and disbursements and that the balance may be recovered directly
from the bank’s customer.The advocate would also be entitled to a further 30% whenever
full recovery is made. Obviously, the advocates cannot recover the balance from the bank’s
customers if the bank does not win the case for costs follow the event. It follows therefore
that if the bank’s case flopped the advocates would have to be content with 30% of the
scale fees plus VAT and disbursements. If the bank won and made full recovery, then the
advocate would be entitled to a further 30% of the scale fees plus VAT and disbursements.”
In my humble view Maraga, J was more concerned with the effect of the agreement, in
that the advocate would be paid 60% of the scale fees which is less than the scale fees
provided for in the Advocates Remuneration Order. It is my take that it is not the business
of the court to read extraneous issues into a contract entered into with sound legal mind.
The advocate knew and was conscious of the effect and implication of the contract he
was entering into and once he appended his signature on the contract, then he has no
way to wriggle out of it. The law provides that an advocate can enter into a contract on
payment of fees. And if he decides to bind himself to a sum far below the scale allowed,
then he cannot be heard to rubbish the contract. The contract allowed the Advocate to
get work from the bank, therefore when a dispute arises the court must allow parties to
bath their baby. The court should not in my view provide water to wash the dirt from the
baby conceived and carried by the advocate, when the baby is of no more beneficial use
to the advocate.
The provision of section 36(2) is that, no advocate shall charge or accept, otherwise than
in part payment any fee or other consideration in respect of professional business which is
less than the remuneration prescribed by order.
under Chapter 16 Laws of Kenya. In my view once an advocate makes an agreement
with a client, he removes himself being entitled to fees under the scale. Section 45(1) of
Chapter 16 gives parties to negotiate and enter into an agreement which would be valid
and binding on the parties thereto provided the agreement is in writing and signed by
both parties.
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350 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Partly the execution of the agreement had the effect of incorporating the advocate onto
the bank’s panel of advocates. Without appending his signature to the agreement dated 28
July 1999, the advocate could have received work from the bank. It also means he would
not be incorporated into the bank’s panel of advocates. In my view, by agreeing to the
contents of the letter dated 29 July 1999, the advocate derived considerable beneficial
interest from that agreement. The Advocate knew that the agreement restricted the
amount or scale of fees that he was entitled. He also knew that the agreement imposed
an obligation on the bank’s customers but he chose to sign, therefore, he cannot be heard
to attack the contents when a dispute arose and when the brief is taken away from him.’’
However, taking into consideration the aspect of public policy and the court’s
abhorrence to illegal contracts, theNjogu and Co. Advocates v National Bank of Kenya
Ltd decision is against the tide of cases on these issues and goes against the tide of
precedents established by the majority of the cases.
The policy against immoral contracts was addressed in the case of Holman v
Johnson303 where the court held as follows:
‘The objection, that a contract is immoral or illegal as between plaintiff and defendant,
sounds at all times very ill in the mouth of the defendant. It is not for his sake, however,
that the objection is ever allowed; but it is founded in general principles of policy, which
the defendant has the advantage of, contrary to the real justice, as between him and the
plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo
non oritur actio. No court will lend its aid to a man who founds his cause of action upon
an immoral or an illegal act. If, from the plaintiff ’s own stating or otherwise, the cause of
action appears to arise ex turpi causa, or the transgression of a positive law of this country,
there the court says he has not right to be assisted. It is upon that ground the court
goes; not for the sake of the defendant, but because they will not lend their aid to such
a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was
to bring his action against the plaintiff, the latter would then have the advantage of it; for
where both are equally in fault potior est conditio defendentis.’
On appeal in Njogu & Company Advocates v National Bank of Kenya Limited304 the
Court of Appeal upheld Justice Warsame’s holding finding as follows. The agreement
between the appellant and the respondent was clearly in violation of the provisions
of Section 46(c) and (d) of the Advocates Act which prohibited making payment of
advocates’ fees conditional on the success of the suit. While it was evident that the
parties had entered into an agreement that was illegal and therefore void ab initio,
the situation was a little more complex. The appellant, being a firm of advocates,
were officers of the court and therefore deemed to be well aware of the law. Where
an advocate entered into a champertous agreement with his client, the advocate
was guiltier for he knew the contract stipulated terms contrary to the essence and
existence of the Advocates Act. Consequently, such a party could not sustain a cause
of action founded on an illegality that it sanctioned as this would have the effect of
giving it an undue advantage. The Court held that it would not come to the aid of a
party that had participated in sanctioning an illegality by aiding it to wriggle out of
the relationship. In dismissing the appeal, the Court of Appeal held that it could not

303 (1775) 1 Cowp 341, 98 ER 1120, [1775–1802] All ER Rep 98.

304 [2016] eKLR
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Principles of Taxation: Procedures and Law 351

come to the appellant’s aid as the appellant was estopped by its conduct from seeking
the court’s intervention. The Court of Appeal held:
“[25] We entirely agree with the sentiments expressed by the learned Judge. The
appellant is a firm of advocates headed by an advocate of the High Court,
who as an officer of the court must be deemed to be well aware of the
provisions of the Advocates Act and the Advocates Remuneration Order.
We are in no doubt that the appellant was aware of the illegality and the
consequences of anchoring its relationship with the respondent on such
illegality. No doubt the “carrot” was the assurance of a retainer and assignment
of legal work. Having succeeded in getting the work in accordance with the
illegal agreement, the appellant cannot now turn round and seek the Court’s
intervention in getting a different remuneration from what was offered and
agreed. Indeed, it is an abuse of the court process for the appellant to seek
the Court’s intervention in basing its fees on the Advocates Remuneration
Order whose provisions he had in the first instance deliberately ignored.
[26] In our view an advocate who willingly and knowingly enters into an
agreement in regard to the payment of his fees that is contrary to the Advocates
Remuneration Order, cannot maintain proceedings whose purport is to avoid
the illegal agreement by reverting to the Court to tax his advocate/client bill of
costs in accordance with the Advocate’s Remuneration Order.We concur with
the learned Judge that the appellant having made his bed he must lie on it.That is
to say that, notwithstanding the illegality of the contract, this Court cannot come
to the appellant’s aid as the appellant is estopped by his conduct from seeking
the court’s intervention. We find no merit in this appeal as the appellant’s bill of
costs was properly struck out. Accordingly, the appeal is dismissed with costs.”’

6.4 Jurisdiction of Taxing Masters where Parties have Recorded

a Consent under section 45 of the Advocates Act

This interesting point was addressed in the case of John Maina Mburu T/A John Maina
Mburu and Co. Advocates v George Gitau Munene (Sued as Administrator of the Estate of
Samuel Gitau Munene) and 3 others.305
The client entered into a retainer agreement on fees and reneged on the payment
of the full fees after only paying KShs 1,000,000. The agreement did provide that the
parties could negotiate or arbitrate on the fees. The advocate filed suit claiming KShs
13,477,010 but a consent was recorded whereby a bill of costs was filed and later
taxed at KShs. 21,782,728. The client objected to the bill and the High Court held as
follows after partly allowing the application:
1. A taxing officer in assessing costs to be paid to an advocate in an advocate
bill of costs was exercising judicial discretion. That such judicial discretion
could only be interfered with when it could be established that the
discretion was exercised capriciously and in abuse of the proper application
of the correct principles of law. Therefore, the instant court could not
purport to replace the discretion of the taxing master with its own.
2. The applicants had contended that the term “subject to negotiation or arbitration”
meant that the amount of KShs. 13,477,010 could only be decreased and not
increased. However, that term, could only be interpreted to mean that the amount
of KShs. 13,477,010 agreed by the parties was not conclusive.The parties had not

305 [2015] EKLR. The summary of the holding has substantially been lifted from the case summary from Kenya
Law Reports.
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352 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

agreed on that sum as the final and conclusive figure.They were open to discussion
by way of negotiation or arbitration. It was only after such negotiation or arbitration
that the final figure payable by the applicants could be agreed or arrived at.
3. Nowhere in the entire document was there an indication that the said fee of
KShs. 13,477,010 was either the minimum or maximum, it could not be
correct to state that the said figure was the maximum. The parties could
negotiate the figure downwards or upwards. Accordingly, it was not correct
to argue that the taxing master did not have jurisdiction to award an amount
in excess of the figure of KShs. 13,477,010 as indicated in that agreement.
4. Where there was a fee agreement between an advocate and clients, there
was no jurisdiction to tax a bill of costs. The court could only intervene
in distinct situations. Section 45(6) of the Advocate’s Act provided that
where there was an agreement, the costs of an advocate could not be
taxed unless there was fraud, illegality and or coercion in the agreement.
5. In the instant matter, there was no agreement as such by which section 45(6)
aforesaid would apply, because, firstly, the agreement entered between the parties
was not certain as it left the issue of the final figure payable as fees open to
negotiation or arbitration.When there was no agreement, the respondent came to
court. Secondly, the parties themselves entered into consent to refer the matter to
taxation, in effect set aside their earlier agreement and there could be no further
reference to that agreement. And finally, by entering appearance and delivering
defences in the instant suit, the door to negotiation or arbitration of the fees in
terms of the agreement was firmly shut on the applicants. Therefore, the taxation
of the respondent’s bill of costs did not breach section 45 of the Advocates Act.
6. Once the matter was referred to the taxing master by the consent of the parties
and by an order of the court, the taxing master was subject to the general law and
principles regarding taxation of costs under the law. In that regard, there was no
breach of rule 13 of the Advocates Remuneration Order by the taxing master.
7. Once the bill of costs was presented for taxation, the taxing master was
at liberty to tax the same in terms of section 49 of the Advocates Act.
Accordingly, the taxing master could increase or decrease the sum contained
in the plaint depending on how she exercised her discretion in assessing
the costs. Further, the value of the subject matter was not the sum of KShs.
13,477,010 claimed in the plaint but the services offered by the respondent.

6.5 Retainer – Does not Have to be Exhibited as it is Simply a Set

of Instructions

The proper forum to raise an objection to a proposed taxation of advocate’s costs is the
High Court and not the taxing master: Kasango J in Ohaga v Adopt a Light Limited.306
A client includes any person who as a principal or on behalf of another has power,
express or implied, to retain or employ an advocate, and any person who is or may be
liable to pay an advocates’ costs. A retainer is the act of employment of an advocate by
a client, and is the foundation of the advocate/client relationship. In law, if there is no
evidence of retainer except the oral statement of the advocate which is contradicted

306 [2008] 1 EA 295

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by the client, the court will treat the advocate as having acted without authority/
permission: per Warsame, J in Ohaga v Akiba Bank Limited.307
Justice Visram defined the ambits of a retainer in the case of Owino Okeyo and
Company Advocates v Mike Maina and another308 where he held as follows:
“In my view there is no requirement under section 51(2) of the Advocates Act that a
retainer need be “in writing”, and that the same must be “exhibited” before an advocate is
entitled to Judgment. Let us see what section 51(2) actually says:
“The certificate of the taxing officer by whom any bill has been taxed shall, unless it is
set aside or altered by the court, be final as to the amount of the costs thereby, and the
court may make such order in relation thereto as it thinks fit, including in a case where
the retainer is not disputed, an order that judgment be entered for the sum certified to be
due with costs”.
In my view, the section is applicable where there is no dispute about the “retainer”. In that
situation, it makes it expedient, and less costly, for the advocate to obtain a quick Judgment.
And that, I believe, is the purpose of that section – that in clear cut situations where there
is no dispute about the retainer, and the bill of costs has been taxed, it would be highly
unjust to require the Advocate to file suit for the recovery of his fees. So, what do we
mean by a “retainer”, and is it something that can be “exhibited”? Black’s Law Dictionary,
6th Edition, 1990 defines the word retainer as follows: -
“In the practice of law, when a client hires an attorney to represent him, the client is
said to have retained the attorney. This act of employment is called the retainer. The
retainer agreement between the client and attorney sets forth the nature of services to be
performed, costs, expenses, and related matters.”
Simply put, a retainer is to “retain” an advocate for services. It is instructions given to an
Advocate to act for a client. Those instructions can be written or oral. It is not necessarily
something you can “exhibit”.

6.6 Retainers and Local Authorities/Government Bodies – Where

Public Money will be Expended
It is now mandatory for local authorities, parastatals and other government bodies to
tender for work. Once a law firm has successfully tendered for work then no issue of
fees may arise and any dispute will be resolved by the taxing officer if a bill of costs
is filed. However, if an advocate had not won a tender to provide legal services but is
somehow instructed without any resolution then a complication arises. This issue was
addressed in the case of County Council of Bureti v Kennedy Nyamokereri t/a Nyamokereri
and Company Advocates.309 The court held as follows:

307 [2008] 1 EA 300. In this case the advocate had been retained by the client’s former advocates with limited
brief. The engagement formalised and later expanded by the client. After a bill was filed the client sought to
strike out the entire bill. The client applied, inter alia, under section 51 of the Advocates Act before the judge
seeking to nullify the bill of costs.The application was rejected and the court held that the client was liable for
the advocate’s costs. A retainer may be implied where (i) the client acquiesces in and adopts the proceedings;
or (ii) the client is estopped by his conduct from denying the right of the solicitor to act from denying the
existence of the retainer; or (iii) the client has by his conduct performed the existence of the retainer; or (iv)
the client has consented to a consolidation order: per Cordery on Solicitors was cited by the advocate in
submissions set out in the judgment.
308 [2005]eKLR
309 Kericho High Court Misc. Appeal No. 102 of 2005 (Kimaru J on 10 February 2006)- see Odunga’s Digest at
page 4001 paragraph 8687.
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354 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1. A local authority cannot make decisions where public money will be expended for
services without a resolution of the council or where the sum involved is more than
ten thousand shillings without tender.
2. Section 86A of the Local Government Act mandates the council to give instructions
which may result in it incurring expenditure in writing and therefore it is imperative
that the respondent, knowing that he was dealing with a public authority, to demand
that the instructions given to him be in writing.
3. As provided by section 45 of the Advocates (Remuneration) Order, where such
agreement is in writing, then it would form valid instructions which an advocate
can in case of disagreement, file an advocate-client bill of costs without which there
is no proof of instructions given and the reference allowed.

6.7 Taxing Officer

Rule 10 of the Advocates Remuneration Order stipulates, inter alia, that the taxing
officer for the taxation of bills under the Order shall be the registrar or district or
deputy registrar of the High Court.
The Court of Appeal in the case of MG Sharma v Uhuru Highway Development
Ltd310held, inter alia, that a judge has no jurisdiction to hear a matter arising out of
taxation between an advocate and the client as this is a matter for the taxing officer as
opposed to a suit for recovery of costs.
See also the case of Makima Masimba v Kishen Singh and Des Raj Sharma311 which
repeats the contents of rule 10 of the Advocates Remuneration Order.

6.8 What is Taxation?

Taxation is an assessment of the fees which properly represent the work done. It is
immaterial whether these fees have been paid or not. That falls to be considered at
another time: per Makima Masimba v Kishen Singh and Des Raj Sharma.312

6.8.1 Bill of Costs

A bill of costs is a factual statement of services rendered and disbursements made. If any
of the facts alleged in the bill are shown to be untrue e.g. if it is shown that a particular
service charged for has not been rendered or that a particular disbursement has not in
fact been made, the relevant item in the bill will be taxed off.The commonest example
of this is the inclusion of the bill of an advocate’s fees which had been paid when the
bill was presented: Sir Newnham Worley, P, Bhagwanji Premchand and others v J M Gomes
and others.313

6.8.2 Powers of Taxing Officer

Rule 13A of the Advocates Remuneration Order empowers the taxing officer to
summon and examine witnesses, to administer oaths, to direct the production of

310 [2001] 2 EA 530

311 (1950) 24 (1) KLR at 39 cited by Kuloba at page 117
312 (1950) 24 (1) KLR at 39 cited by Kuloba at page 117
313 (1956) 23 EACA 296 at 297 cited by Kuloba at page 117.
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Principles of Taxation: Procedures and Law 355

books, paper and documents and to direct and adopt all such other proceedings as
may be necessary for the determination of any matter in dispute before him.

6.8.3 Discretion of Taxing Officer

Rule 16 of the Advocates Remuneration Order provides as follows:
“Notwithstanding anything contained in this Order, on every taxation the taxing officer
may allow all such costs, charges and expenses as authorized in this Order as shall appear
to him to have been necessary or proper for the attainment of justice or for defending the
rights of any party, but, save as against the party who incurred the same, no costs shall be
allowed which appear to the taxing officer to have been incurred or increased through
over-caution, negligence or mistake, or by payment of special charges or expenses to
witnesses or other persons, or by other unusual expenses.’’
Bearing this in mind a taxing officer should abide by the dicta in the case of Premchand
and Raichand v Quarry Services314where the court held that a taxing officer and judges
owe a duty to the public to see that costs are not allowed to rise to such a level as to
deprive of access to the courts to all but the wealthy.

Facts
The respondent referred to the full court the decision of a single judge on appeal
from the taxing officer’s taxation of the appellant’s bill of costs. A certificate for two
advocates had been given, and a brief fee to senior counsel of KShs 27,000 and an
instruction fee of KShs 20,000 were allowed, and the total allowed was KShs 55,597.
In allowing these fees the taxing officer made an allowance for the fall of the value in
money and for the fact that the costs were those of the appellants rather than of the
respondents.
For the respondents it was contended that the brief fee was so manifestly excessive
that an error in principle had been made, and alternatively that the overriding discretion
of the court should be exercised to reduce the total of the bill to a reasonable figure.
The court held:
(1) The court must consider the following principles:
(a) that costs be not allowed to rise to such a level as to confine access to the courts
to the wealthy;
(b) that a successful litigant ought to be fairly reimbursed for the costs he has had
to incur;
(c) that the general level of remuneration of advocates must be such as to attract
recruits to the profession; and
(d) that so far as practicable there should be consistency in the awards made;
(2) the court will only interfere when the award of the taxing officer is so high or so low
as to amount to an injustice to one party;
(3) in considering bills taxed in comparable cases an allowance may be made for the fall
in value of money;
(4) apart from a small allowance to the appellant for the responsibility of advising the
undertaking of the appeal there is no difference between the fee to be allowed to an
appellant as distinguished from a respondent;

314 (No. 3) 1972 EA 162

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356 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(5) the fact that counsel from overseas were briefed was irrelevant: the fee of a counsel
capable of taking the appeal and not insisting on the fee of the most expensive
counsel must be estimated (Simpson Motor Sales v Hendon Corporation (2) followed);
(6) the total bill as taxed was excessive and would be reduced by KShs 20,000.
In the case of Thomas James Arthur v Nyeri Electricity Undertaking,315 the court held that
a taxing officer does not arrive at a figure by multiplying the scale fee but places what
he considers a fair value upon the work and responsibility involved.

Facts
In an action in which the plaintiff was awarded substantial damages the taxing officer
allowed the successful plaintiff an instructions fee of KShs 8,000. The defendant
referred the matter to the decision of a judge of the Supreme Court who reduced the
fee to KShs 4,000 on the ground that the fee allowed which was quadruple the scale
fee was so manifestly excessive as to be of itself indicative of the exercise of a wrong
principle. The appeal was allowed and the decision of the taxing officer restored. The
court held: –
(1) where there has been an error in principle the court will interfere, but questions solely
of quantum are regarded as matters with which the taxing officers are particularly
fitted to deal and the court will intervene only in exceptional cases.
(ii) the fee allowed was higher than seemed appropriate, but in a matter which must
remain essentially one of opinion, it was not so manifestly excessive as to justify
treating it as indicative of the exercise of a wrong principle.

6.8.4 Taxation of costs in Contentious and other Matters

Part III of the Advocates Remuneration Order deals with contentious matters. Rules
49 and 49A defined the parameters of contentious matters which are civil in nature
and criminal matters are excluded. The two rules state:’
49. Application of Part III
(1) This Part shall apply to contentious matters and the taxation of costs as between
advocate and client and between party and party in contentious and other
proceedings.
(2) In this Part, the expression “the Court” means the High Court or any judge
thereof or a Resident Magistrate Court or any magistrate sitting as a member
of a Resident Magistrate Court.
49A. Costs in criminal cases
Costs in criminal cases, whether in the High Court or subordinate courts, if
not agreed or ordered, shall be taxed as between advocate and client under
Schedule V.

6.8.5 Criminal Cases – Costs Taxed Under Schedule V

It is a cardinal principle in law that the Court is presumed to know the law.The taxing
officer obviously fails to appreciate the provisions of paragraph 49 of the Advocates

315 [1961] EA 492.

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Remuneration Order which provides that costs in criminal cases, whether in the
High Court or subordinate courts if not agreed or ordered, shall be taxed as between
advocate and client under Schedule V. It is clear that the law is not silent nor ambiguous
as portrayed: per Wanga and Co. Advocates v Busia Sugar Company Limited.316
The Tanzanian High Court case of Keeka v Damji317 also held that the Advocates
Remuneration Order and Taxation does not apply to costs in criminal cases.

Facts
This was an application by the executrix of a deceased advocate for an order that a
bill of costs be taxed.The bill was for professional services rendered by the advocate to
the respondent in a criminal case in which the respondent was the accused. No prior
agreement had been made about costs. An objection was raised by the respondent that
there is no provision for the taxation of costs in criminal matters.
The court held at page 92:
“A reading of the relevant clauses of the Act makes it clear that the matter of costs and
taxation thereof is concerned purely with the contentious civil actions and has nothing
whatever to do with criminal proceedings.’’

6.8.6 Taxation in the Industrial Court

Pursuant to article 162(2) of the Constitution the Employment and Labour Relations
Court has the same status as the High Court. Employment disputes are contentious
and civil in nature and bills of costs should be filed by advocates pursuant to Schedule
6 of the Advocates Remuneration Order. It must be noted that trade union officials,
who are not advocates, cannot purport to tax costs under the Advocates Act in respect
of instruction fees. They would be restricted to recovery of court filing fees and
reasonable disbursements.
The Employment and Labour Relations Court (Procedure) Rules, 2016318 provide
in rule 29(1) as follows as regard costs:
“The Court shall be guided by section 12(4) of the Employment and Labour Relations
Court Act and the Advocates (Remuneration) Order in awarding costs.’’

6.8.7 Instruction Fee

When the Remuneration Order was amended in 2006, I proposed, which proposal
was accepted, the introduction of parts (a) to (c) of the instruction fee element which
provided a percentage formulae applicable to instruction fees based on the stage at
which the litigation was reached. This was in parity with the practice in Tanzania and
Uganda.
Consideration must be given to the stage at which the litigation was reached and
an advocate must give this discount element in the instruction fee statement.

316 [2004] 1 KLR 506.

317 [1968] EA 91. The provisions of the Tanzanian Advocates Remuneration Order and Taxation provide the
same provisions as in the Kenya provisions.
318 Legal Notice No. 146 dated 5 August 2016 in the Special Issue of the Kenya Gazette Supplement No. 129.
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358 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

The value of the subject matter is described as follows in rule 1 of Schedule 6:

“The fees for instructions in suits shall be as follows, unless the taxing officer in his
discretion shall increase or (unless otherwise provided) reduce it—
(a) To sue in any proceedings (whether commenced by plaint, petition, originating
summons or notice of motion) in which no defense or other denial of liability is
filed, where the value of the subject matter can be determined from the pleading,
judgment or settlement between the parties and—…’’
The Court of Appeal in the case of Joreth Ltd v Kigano and Associates319 considered the
factors in assessing instruction fees.

Facts
In a suit filed against some 23 parties on 23 November 1992 through the respondent
law firm, the appellant sought damages for trespass, an injunction to restrain the
defendants from such trespass as well as mesne profits at the rate of KShs 300,000 per
month. It also claimed recovery of possession and ejection of the defendants from the
suit premises. Some time prior to 26 February 1998, instructions were withdrawn
from the respondent whereupon it addressed a letter to the appellant seeking payment
of a total sum of KShs 1,155,975, KShs. 1 million of which was the instruction fee.
The appellant objected to the block bill, whereupon the respondent filed an advocate
client bill for taxation seeking KShs 14,788,067 for all services rendered to that date.
In this new bill the respondent claimed an instruction fee of some KShs 13,500,000.
Following taxation, this figure was reduced to KShs 934,000 by the taxation
master. The respondent, being aggrieved by this action, applied to the High Court for
variation upwards. The High Court Judge amended the taxing master’s decision by
awarding the respondent the sum of KShs 9,082,880 as instruction fee. The appellant
now appealed to the Court of Appeal seeking restoration of the bill of costs as taxed by
the taxing master on the ground, inter alia, that the Judge erred in basing the amount
he awarded as the instruction fee on the alleged value of the suit properties.
The Court of Appeal allowed the appeal and set aside the ruling of the High
Court that restored the ruling of the taxing master. The court held on the aspect of
determining the value of the subject matter:
“Where the value of the subject matter of a suit could not be determined from the
pleadings, judgment or settlement, a taxing master was entitled to use his discretion in
assessing the instruction fee and in doing so the factors to be taken into account included
the nature and importance of the cause, the interest of the parties, the general conduct of
the proceedings, any directions of the trial Judge and all other relevant circumstances. In
this instance, the taxing master had followed this course and had not erred in doing so.
There was nothing to suggest that in determining the instruction fee the taxing master
had taken into account the stage that the suit had reached. The trial Judge, however, had
erred in saying that one half of the work done qualified for one half instruction fee.
The value of the subject matter was addressed in the case of Tera Waigwa Waihenya and
another v Co-operative Bank of Kenya Limited.320 Justice Ochieng held as follows:

319 [2002] 1 EA 88. However, note that this decision was before the 2006 Advocates Remuneration Order that
provides a staggered formula for calculation costs based on the litigation stage reached.
320 [2005] EKLR.
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Principles of Taxation: Procedures and Law 359

“ Paragraph 1(a) of Schedule VI provides for the manner in which the instructions fees are
to be calculated. It reads as follows: -
“The fee for instructions in suits shall be as follows, unless the taxing officer in his
discretion shall increase or (unless otherwise provided) reduce it:
(a) To sue in any proceedings (whether commenced by plaint, petition, originating
summons or notice of motion) in which no defence or other denial of liability is filed,
where the value of the subject matter can be determined from the pleading, judgement or
settlement between the parties.”
In my understanding, the learned Taxing Master is supposed to peg his calculations of the
instruction fee on the value of the subject matter. And, the value of the subject matter
is supposed to be derived from either the pleadings, the judgement or the settlement
between the parties. That, as I understand it, is the basis of the current complaint by the
applicant.’’
In the case of Muchangi Nduati and Co. Advocates v Francis P. Kiranga,321 the court held
that the basis of the instruction fee should be based on the pleading, judgment or
settlement. Justice Kasango held as follows:
“Schedule VI, paragraph 1 of the Advocates (Remuneration) Order provides that the
subject matter can be determined from the pleading, judgement or settlement between
the parties.
Pleadings is defined in section 2 of the Civil Procedure Act as:
“Pleading” includes a petition or summons, and the statement in writing of the claim
or demand of any plaintiff and of the defence of any defendant, and of the reply of the
plaintiff to any defence or counterclaim of a defendant.”
For our purpose pleadings would be the plaint and defence. The advocate submitted that
the defence had the value of KShs. 4,808,748.45. I have perused the file in this matter
and I was unable to find a copy of the defence to confirm the submissions of the advocate.
The only pleading I was able to trace is the plaint and therein I confirmed that the subject
matter is KShs. 1,753,119.75. I reject the advocates submission that the figures in the
replying affidavit can be used to determine the subject matter in view of the definition of
pleadings herein before. The finding of the court therefore is that the taxing officer did
not make an error of principle or otherwise in the taxation of item No. 1.’’

6.8.8 Value of the Subject Matter Refers to Claim in Prayers against

Litigants
Simply stating a colossal figure in the pleadings and later seeking to justify costs based
on this figure when no settlement was reached or judgment entered for the said sum
is not the basis for inflating costs. The taxing officers should go to the heart of the
matter - what was the relief sought - as the point of crystallizing the costs.
The late taxing officer, Bhatt PDR, gave an excellent account of how a taxing
officer is to determine the value of the subject matter. His simple explanation brilliantly
summarised that the crux of the matter is to identify the claim sought in the prayers.
The words “value of the subject matter’’ directly refer to a “claim’’ in prayers against
litigants and this is because there are varieties of subject matters and obviously the

321 [2005] eKLR

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360 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Advocates Remuneration Order does not and cannot possibly provide for each nature
of litigation and that is the reason a taxing officer is burdened with responsibility to
understand specific issues and the answer can be found in the nature of the claim under
the prayers against one or the other litigants in the matter before him, considering to
determine instruction fees bearing in mind a specific proviso of Schedule VI of the
Advocates Remuneration Order wherein the discretion is vested in taxing officers to
consider suitable award of instruction fees. The sole test to determine instruction fees
is the nature, character and substance of the claim and the gravity of issues of facts
and law involved in the proceedings before the court and the first or fundamental
guideline is the judgement of the court: Murgor and Murgor v Central Bank of Kenya
and another.322
Justice Mwera (as he then was) also followed Bhatt’s PDR’s views on the value
of the subject matter in the case of Odhiambo Owiti and Company Advocates v National
Housing Corporation.323 In this case the plaint set out the sum of KShs. 1.5 billion as
the value of the houses the corporation wanted to sell. The judge found that at the
time of taxation no judgment had been entered hence the value of the subject matter
had not been determined nor had the parties settled the value at all. He proceeded to
set aside the taxed costs as the sum incorporating costs was found to be excessive. The
judge held as follows:
“Indeed the ownership of houses was not at stake and neither was their value. They
belonged to the municipality and what was at stake was that the corporation wanted
them sold so that it could recover its loan arrears on them. With or without pleading the
approximate value of KShs 1.5 billion, the municipality would still have moved to court
for the declaration, orders and permanent injunction pleaded in the plaint. The value
of the houses could not be central to the granting or refusing the orders. Indicating the
value of the houses was only meant to emphasise the loss and damage the Municipal
Council would suffer in case an injunction was not granted to it. The respondent firm
of lawyers was not going to court to wage and have it determine the value of the houses
and that was not the relief its client was going for. The value of houses did not fall to be
determined by the trial court. Thus again the taxing officer fell in error to adopt the sum
pleaded in the plaint. The sum was not to be determined by judgment or settlement, as
the basis to tax the fee on item 1. The value of any subject matter should mean the value
of the subject matter in dispute which value the court is called upon to adjudicate about
and award/or refuse. All causes need not be based on subject matters whose values should
always be stated. But they are causes nonetheless, and where a party has retained counsel
and a dispute in costs arises, the taxing officer will and should still proceed to tax the costs
but in such a situation, taking a reasonable figure in the circumstances, and proceeding to
incorporate such other relevant aspects to increase or reduce the figure as material placed
before him/her. Such relevant aspects include e.g. the complexity of the case, the research
required to properly and fully argue it etc.’’

322 Nairobi HCCC No. 694 of 1998 (Bhatt, PDR on 11th June 1999)-see Odunga’s Digest at page 4031
paragraph 8721 note [n].
323 HCCC Misc. No. 109 of 2007: see Odunga’s Digest at page 4041 paragraph 8728 notes (e) & (f).
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6.8.9 Determination of Subject Matter when suit has not been Concluded
or Suit has been Dismissed where a Sum Inclusive of Interest is
Claimed
At times an advocate withdraws from acting and files his bill of costs before final
judgment has been rendered in a suit claiming a sum inclusive of an interest
component. Another scenario is where the suit has been dismissed and the defendant’s
advocate files a party and party bill of costs. In both scenarios the advocates have taken
the interest component to exaggerate the value of the subject matter and inflate the
instruction fees component.
In the case of D N Njogu and Company Advocates v Kenya National Capital
Corporation324 the court held that prayer for interest under the Civil Procedure Rules is
in the discretion of the court and cannot form part of the principal subject matter of
the suit. Hence no instruction fee may be founded on it: per Emukule, J.

6.8.10 Speculative Claims

Pleadings are usually filed setting out exaggerated claims in the hundreds of millions
or billions of shillings. However, the suit may be struck out and the question that arises
is whether the value of the subject matter should be based on the huge claim set out
in the plaint.
In the case of Southern Credit Bank v Kingsway Motors Ltd,325 Justice Warsame (as he
then was) found that the taxing master had made an error of principle by basing the
taxation on a speculative amount put forward by the plaintiff.

Facts
The plaintiff filed a suit claiming a sum inclusive of an interest component. After losing
the suit, the defendant’s advocate filed a party and party bill of costs seeking assessment
of instruction fees on the value of the global claim.The issue for determination during
the reference from the taxing officer’s decision was whether the interest component of
the claim should be taken into account in determining the value of the claim.
The court held that the prayer for interest under the Civil Procedure Rules is in
the discretion of the court and cannot form part of the principal subject matter of the
suit. Hence no instruction fee may be founded on it.
On the issue of speculative or exaggerated claims without any basis the court held
at page 422, paragraph d:
“It is not open to the taxing master to say that the respondent had put forward a figure
of one-billion therefore that is the correct figure to be adopted for purposes of taxing the
bill. I think that is not the correct approach to be adopted for purposes of undertaking
a taxation…The figure was based on an error of principle committed by the taxing
master. It is my decision that the award was based on irrelevant factors, which calls for the
jurisdiction of the court to remedy the situation.’’

324 Misc. Civil App. No. 21 of 2005 relied in the case of Southern Credit Bank v Kingsway Motors Ltd [2008] 1
EA 419.
325 [2008] 1 EA 419
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6.8.11 Defamation Cases

What happens when a defamation case is withdrawn and a party proceeds to tax costs?
An interesting scenario arose in the case of Kipkorir, Titoo and Kiara Advocates v Postal
Corporation of Kenya.326 The advocate filed a reference after the taxing master reduced
the instruction fee element from KShs. 97.55 million to KShs 3 million. Justice Visram
held as follows when dismissing the reference:
“Now, to me, that is a normal, simple, straightforward defamation suit – nothing more,
nothing less. There is nothing in this plaint about the hyperbole the applicant’s counsel
now unleashes regarding the huge loss of KShs 941,450,000 and the decline in business
(paragraphs 8 and 9 of the supporting affidavit), arising out of the alleged defamation.
These claims, if anywhere near truth, are in the nature of special damages, and ought to
have been pleaded. There is no pleading and no such claim in the plaint. The parties to
litigation are bound by their pleadings, and cannot now begin to invent imaginary claims
to justify a staggering sum in legal fees.
So, did the taxing officer apply the correct principles in arriving at his decision to tax
off KShs.94 million in instructions fees? The taxing officer’s Ruling of 5 March 2004
is, as I said at the beginning, comprehensive and well-reasoned. Here is what he said:
“The applicable provision is Schedule VI (1) (L) which provides: - To sue or defend in any
case not provided for above, such sum as may be reasonable but not less than KShs 6,000.
KShs.6,000 is the minimum allowable fees chargeable. The issues for my determination
among others are the nature and importance of the cause or matter, the amount or the
value of the subject matter involved, the interest of the parties, the general conduct of the
proceedings and any other relevant factors.
Further, what was at stake in the present suit was not the Postal Corporation itself but a
suit for libel. Postal Corporation of Kenya was not grounded by the libel, if any, as it is still
in operation”.
The taxing officer correctly applied the principles set out in Joreth Ltd v Kigano [EALR
2002] 93 in arriving at his decision.There is nothing on the face of this plaint from which
I can conclude that this case is so exceptional that the taxing officer must have acted on
the wrong principle. If there is no error of principle, as I find that there is none here, it is
not for me to interfere with the quantum of the award (See Hasham Kara v Abdul Mohamed
Hussein Karmati [1946–7] 22 KLR 1).
I will, therefore, not interfere with his decision, but to simply comment that in my view
even the award of KShs 3 million (let alone the colossal claim of KShs 97 million) for
instruction fee was overly generous. I will leave it at that.’’

6.8.12 Judgment entered for sum with Specified Interest Rate

Where a claim is for a certain sum with interest at a specified rate it is proper for the
Court in taxing the costs to take into account the principal sum plus the interest till
the date of judgment. For instance, take a suit filed in, say, 1997 for KShs 3 million that
sought interest at court rates from the date of filing suit or an earlier date. The final
judgment entered that allowed the sum claimed with interest as prayed would form
the basis of the final instruction fee as this forms the decretal amount. After all this is

326 [2005] eKLR

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Principles of Taxation: Procedures and Law 363

the amount the judgment debtor will be liable to pay and should form the value of
the subject matter as per the final judgment.

6.8.13 Suit for Specific Performance

In a suit for specific performance the value of the subject matter is the value of
the property and not the unpaid sum of the purchase price or the sums paid to the
defendant: Mbaluto, J in the case of Anne Augusta M Lusaka v Ruth Awinja.327

6.8.14 When Value of Subject Matter Cannot be Ascertained

When the value of the subject matter cannot be ascertained then the costs are
taxed under “Other Matters’’ which sets out the following scales as per the 2014
Remuneration Order:
• If undefended- KShs 45,000.
• If defended- KShs 75,000
This section has been described by Justice Ringera as “the residual provision” in the
case of Kenya Wildlife Services v Associated Construction Co. Ltd.328

Facts
The plaintiff took out an originating summons under section17(6) of the Arbitration
Act. The High Court ruled that the arbitrator had no jurisdiction to entertain
substantive matters before him. Thus the plaintiff ’s prayers were upheld and costs
were awarded against the Defendant. The plaintiff filed a bill of costs and claimed an
instruction fee of KShs 1,547,202. The taxing officer taxed this figure off to KShs
6,000. The plaintiff filed a reference against the reference.
The court held:
1. The originating summons was not a suit for KShs 100,480,137 as argued by the
plaintiff ’s advocate, but an application to determine whether the arbitrator had
jurisdiction. Schedule VI (1)(b) was therefore not applicable in the taxation.
2. The plaintiff ’s instruction fees ought to have been taxed under paragraph 1 of
Schedule VI, which provides that the sum shall be reasonable but not less than
KShs 6,000 since taxation was done under wrong provisions. The matter would be
referred for re-taxation.
The Court of Appeal in the case of Nanyuki Esso Service v Touring and Sports Cars Ltd329
addressed the question of instruction fees when the claim was not fully under the
Advocates (Remuneration) Order Schedule 6, paragraph 1(a).The question in dispute
was the manner of assessing the instruction fee when the total sum claimed of KShs
12,630, KShs. 12,110 fell under Schedule 6, paragraph 1(a) and only KShs 250 fell
under paragraph 1(f). The taxing master assessed the whole fee under paragraph 1(f)
and the judge remitted it for reassessment on the basis that it fell substantially within
paragraph 1(a). The Court of Appeal held as follows:

327 Nairobi(Milimani) HCCC No. 1404 of 2001- Odunga’s Digest at page 3994 paragraph 8670.
328 [2002] 2 EA 420 at 421 paragraph h.
329 [1972] EA 500
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364 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1. An error of principle is only inferred from a manifestly excessive award. An

express error in principle will normally be remitted unless the judge is satisfied
that it cannot materially have affected the assessment.
2. (obiter) if all constituents of a claim fell within paragraph 1(a) then the fee must
be taxed under that paragraph.
3. A taxing officer has no discretion to give less than the amount shown in the
Schedule. He may give more when he is satisfied, in his discretion, that there
is good reason to do so, as for example when a case is of more than normal
difficulty or complexity or involved exceptional responsibility.330
4. In deciding whether a claim falls under any particular head, one must look at the
substance of the claim and not to the way it is expressed, but if a claim, or any part
of it, clearly does not fall under any particular head, it must be treated under one
of the residuary heads.331
Bear in mind that the above are the minimal scales fees and the taxing officer has the
discretion to increase the fees. The guiding principles governing taxation of costs are
set out in the case of Premchand Raichand Ltd v Quarry Services of East Africa Ltd and
others,332which are:
1. Instruction fees should cover the advocate’s work including taking instructions
and any other work necessary for presenting the case for trial or appeal.
2. It would be proper to give a slightly higher award to counsel for the appellant
although there is no rule requiring the Court to do so.
3. The taxing master is expected to tax each bill on its merits and nobody can
pretend that by any mathematical calculation the taxing officer will arrive at an
exact award of costs.
4. The taxing master has discretion, he has to exercise it judicially and not whimsically
or capriciously.
5. The successful litigant is entitled to a fair reimbursement of the costs he has
incurred; the taxing master must take into consideration the public interest since
costs must not be allowed to rise to such a level as to confine access to courts to
the wealthy although the general level of remuneration of advocates must be such
as to attract recruits to the profession.

6.8.15 Duty of taxing officer to set out the Basic Instruction Fee
From the outset, it is the duty of the taxing officer to set out the basic instruction
fee before venturing to either increase or decrease. Failing to do so will amount to
an error of principle: per Ringera J (as he then was) in First American Bank of Kenya v
Shah and others.333

330 Page 501 paragraph H.

331 Page 502 paragraph G.
332 [1972] 3 EA 162. See Odunga’s Digest [supra] at page 4007.
333 [2002] 1 EA 64 (CCK)
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Facts
The plaintiff filed suit against the defendants seeking the sum of KShs. 105,247,351.35
on account of guarantees given by the defendants to secure the repayment of a debt.
The defendants subsequently entered appearance and filed their separate defences
on 10 August 2001. On 13 August 2001, the plaintiff ’s advocates filed a notice of
discontinuance of the suit against the second and third defendants. Following the
grant of judgment for costs by the Deputy Registrar, the second and third defendants
filed identical bills of costs claiming, inter alia, a sum of KShs. 3,500,000 in respect
of instruction fees. The bills came up for taxation on 19 September when the
second defendant’s counsel requested taxation as prayed. In a ruling delivered on 27
September 2001, the Taxing Officer stated, inter alia, that the defendants were entitled
to instruction fees based on the subject matter of the suit since, by the time the
suit was discontinued, they had already filed their defences. She also expressed the
opinion that it was clear that well researched defences had been put in on behalf of
the defendants and that she was inclined to increase the fees payable. Accordingly, she
taxed off KShs 800,000 and awarded each defendant a sum of KShs 2,700,000. The
plaintiff, being dissatisfied with the ruling, referred it to the High Court contending
that the Taxing Officer had misdirected herself by not recognizing that she first had
to set a basic instruction fee before determining the appropriate fees. Thus she had
failed to state whether the basic fee was KShs 1.5 million or KShs 2.5 million. It was
also claimed that she had acted on the wrong principles in failing to consider certain
relevant factors, primarily the fact that the suit had been withdrawn only three days
after the defendants had filed their defences. In their submissions, the defendants’
advocates strongly supported the Taxing Officer’s ruling.
Justice Ringera (as he then was) held as follows:
1. The High Court was not entitled to upset a taxation merely because, in its opinion,
the amount awarded was high and it would not interfere with a Taxing Officer’s
decision unless the decision was based on an error of principle or the fee awarded
was so manifestly excessive as to justify an inference that it was based on an error of
principle (Steel Construction Petroleum Engineering (EA) Limited v Uganda Sugar Factory
[1970] EA 141 followed). Under the Advocates (Remuneration) Order, some of
the relevant factors to be considered were the nature and importance of the matter,
the amount or value of the subject matter involved, the interest of the parties, the
general conduct of the proceedings and any direction by the trial Judge.
2. Though the High Court had the jurisdiction and the discretion to reassess the bill
itself (Steel Construction Petroleum Engineering (EA) Limited v Uganda Sugar Factory
(supra) and Arthur v Nyeri Electricity Underwriters [1961] EA 492 followed), the normal
practice where the Taxing Officer’s decision disclosed errors was to remit it back
to the Taxing Officer for reassessment unless the court was satisfied that the error
did not materially affect the assessment (Nanyuki Esso Service v Touring and Sports
Cabs Ltd [1972], Steel Construction Petroleum Engineering (EA) Limited v Uganda Sugar
(supra) and Arthur v Nyeri Electricity (supra) followed).
3. Though the issue of when an advocate became entitled to an instruction fee was
the subject of apparently conflicting appellate decisions, the better position was that
the instruction fee was an independent and static item, not affected by the stage a
suit had reached (Joreth Ltd v Kigano and Associates [2002] 1 EA 88 (CAK) followed,
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366 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Mayers v Hamilton [1975] EA 13 referred to). The full instruction fee to defend a
suit was earned the moment a defence was filed and the subsequent progress of the
matter was not relevant.
4. In this instance, the failure of the Taxing Officer to set out the basic instruction fee
before venturing to either increase or decrease it amounted to an error of principle.
5. The conduct of research and the putting on of a defence informed by such research
was no more than was to be expected of an advocate. Accordingly, the reason given
by the Taxing Officer for increasing the instruction fee did not form one of the
relevant factors to be considered, and the discretion to increase the fee had not been
exercised rationally.
6. In the circumstances, remitting the decision to the Taxing Officer would be a waste
of judicial time and would saddle the parties with unnecessary costs. The reference
would therefore be allowed and the instruction fee for each defendant varied from
KShs 2,700,000 to Kshs.1,618,710-30.

6.8.16 Basic fee where claim settled for a Less Sum than the Sum Claimed
If a plaintiff claims, say, KShs. 300,000 and is awarded only KShs. 2,000, he will get
his costs only on the latter amount; but the defendant, if he is successful, should have
his costs taxed on the basis of KShs. 300,000: Miles, J in Domenico Tozzi v Hassanali
Sajan.334

6.8.17 Public Interest Litigation – ConstitutionalPetitions and Judicial

Review Applications
Advocates have in the past been basing instruction fees on the value of the subject
matter in constitutional or judicial review matters. The courts have now refused to
base fees on the value of the subject matter. In constitutional petitions involving public
interest litigation the courts ordinarily order each party to bear its own costs.
A practice has developed where public funds are lost when advocates representing
parastatals or other public bodies in public interest matters concerning judicial review
or constitutional matters base their advocate client bills of costs on the purported
value of the subject matter in the proceedings. Fees in the tens or hundreds of millions
are at times negotiated and paid out to the advocates. In future, a new set of public
officers may carry out a past audit of such exaggerated payments and demand an
account and refund. What may happen is that the advocate may move to court to
defend the original payment. He or she files an advocate client bill of costs and then
seeks the “balance of fees’’ due under the guise that a discount had originally been
given and that more fees are sought. This may horribly backfire and the advocate’s
costs are reduced by more than 90%. Even a reference will not aid the advocate who
will be forced to look for ways and means to refund the money.
As a noble profession, we should not put in claims that have no legal basis lest they
come and haunt us in future.

334 Supreme Court of Kenya at Nairobi Civil Case No. 749 of 1953- per Kuloba at page 152.
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Principles of Taxation: Procedures and Law 367

The case of Republic v Minister for Agriculture and 2 others ex-parte Samuel Muchiri
W’Njuguna and 6 others335 dealt with the objection to a taxation that arose from a
judicial review application where the taxing officer increased the basic fee by 1000%
- from KShs 20,000 to KShs 20,000,000.
Justice Ojwang (as he then was) held that the taxing officer exercised her discretion
perfunctorily and as a mere formality as she had failed to specify clearly and candidly
how she had exercised her discretion. He found that the proceedings in question were
purely public-law proceedings and were to be considered entirely free of any private
- business arrangements or earnings of the tea production sector. The judge held as
follows:
1. Discretion, as an aspect of judicial decision-making, is to be guided by principles,
the elements of which are clearly stated and which are logical and conscientiously
conceived. It is not enough to set out by attributing to oneself discretion originating
from legal provision, and thereafter merely cite wonted rubrics under which that
discretion may be exercised, as if these by themselves could permit of assignment
of mystical figures of taxed costs. Since the sum awarded as instruction fees herein,
namely KShs 20,000,000, was not shown to have been guided by the relevant
principles, nor was it transparently accounted for. It appeared as a mystical figure
which cannot be allowed to stand.
2. Taxation of costs as a judicial function is to be conducted regularly, on the basis
of rational criteria which are clearly expressed for the parties to perceive with ease.
Regularity in this respect cannot be achieved without upholding fairness as between
the parties; the taxing officer is to provide only for reasonable compensation for work
done; the taxing officer should avoid the possibility for unjust enrichment for any party
and ought to refuse any claim that tends to be usurious; so far as possible, the taxing
officer should apply the test of comparability; the taxing officer should endeavour
to achieve objectivity when considering ill-defined criteria such as public policy,
interests affected, importance of matter to parties, or importance of matter to the
public; the taxing officer should clearly identify any elements of complexity in the
issues before the Court – and in this regard should revert to the perception and
mode of analysis and determination adopted by the trial judge; the taxing officer
ought to describe accurately the nature of the responsibility which has fallen upon
counsel; the taxing officer should state clearly the nature of any novel matter in the
proceedings; the taxing officer should determine with a measure of accuracy the
amount of time, research and skill entailed in the professional work of counsel.
3. It is noteworthy that counsel for the respondents herein invoked many authorities
from private-law claims sounding in damages and entailing pecuniary awards.
Such examples do not, in my opinion, fall in the same class as most public-law
claims – such as those in judicial review, in constitutional applications, in public
electoral matters, etc. Such matters are in a class of their own, and the instruction
fees allowable in respect of them should not, in principle, be extrapolated from the
practices obtaining in the private law domain which may involve business claims
and profit calculations.

335 [2006] eKLR

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368 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In the case of Brampton Investment Limited v Attorney General and 2 others,336 the petitioner
filed a reference after being dissatisfied with the decision of the taxing master, who
reduced the instruction fees from KShs. 8,862,000.00 claimed to KShs. 500,000.00.
Justice Majanja dismissed the reference and held as follows:
“9. I have taken trouble to set out part of the decision of the learned Deputy Registrar
to satisfy myself that she did not err in principle. She considered relevant factors
and in my view the fact that the matter concerns the exercise of the authority of
the Registrar of Titles and that the petition was founded on the provisions of the
Constitution is a matter of public interest. I also agree with her that the matter
was an ordinary one and not one that was overly complex as the main issue was
revocation of land titles by Gazette Notice which was not novel as to attract such
high amount sought by the petitioner.
10. The petitioner has argued that the taxation ought to have proceeded on the basis
of Schedule VI 1(b) of the Advocates (Remuneration) Order rather than Schedule
VI 1(j). I think this issue is to be approached on the basis of substance rather than
form.   In my view, prerogative orders can now be sought in the form of a petition as
provided in article 23 of the Constitution. A respondent should not be disadvantaged
by costs merely because the petitioner chose to commence proceedings in a different
form, in this case a constitutional petition when the orders sought could also have
been granted through proceedings of judicial review under Order 53 of the Civil
Procedure Rules. In the circumstances, I do not detect an error on the part of the
learned Deputy Registrar to approach the matter as one seeking prerogative orders.’’

6.8.18 When Suits are Consolidated There Should be an Apportionment of

Costs Including the Instruction Fees
This issue was considered in the case of Grace Wangui Ngenye v Wilfred Kiboro &
another.337
The plaintiff had two separate defamation suits struck out. At this point in time
the suits had not been consolidated. They were, however, consolidated at the hearing.
Following a joint judgment, the plaintiff was awarded an all-inclusive sum of KShs.
3,500,000 and costs of both suits. The plaintiff filed two separate bills for taxation in
relation to party and party costs in respect to both suits and the taxing officer awarded,
inter alia, KShs. 250,000 as instruction fees for each suit. Justice Ougo allowed the
reference and held as follows:
1. In Judicial Hints on Civil Procedure, 2nd Edition by Kuloba, J. it was stated that “where
suits or appeals are consolidated there should be an apportionment of costs including
the instruction fees. The advocates for the parties cannot expect to be paid twice
over the same work because he has won three actions”.
2. Costs of consolidated suits should be apportioned when it comes to instruction
fees. The taxing master awarded instruction fees on the basis of the award of Kshs
3,500,000 on each suit which in essence amounted to KShs 7,000,000 and in so

336 [2013] eKLR

337 [2013] eKLR
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Principles of Taxation: Procedures and Law 369

doing he paid the plaintiff twice the award given by the judge. This would amount
to unjust enrichment bearing in mind that the suits were consolidated.
3. Getting up fees in a consolidated suit are only chargeable once.
4. A taxing master should not go out of his way to consider extraneous matters in
awarding instruction fees as this would amount to misdirection especially when the
issues had been considered by the trial judge.

6.8.19 Getting up Fees

As stated in the case of Grace Wangui Ngenye v Wilfred Kiboro & another [supra] getting
up fees in consolidated cases are chargeable only once.
The getting up fees is allowed in both getting up for trial and appeals.338 It is in
addition to the instruction fee and shall not be less than one-third of the instruction
fee allowed on taxation provided:
1. The fee may be increased as the taxing master considers reasonable.
2. See Bhag Bhari v Mehdi Khan339 the taxing officer may increase the fee based on
unforeseen or un-provided for work, that is to say could not at all be included in
work comprised in the instruction fee.
3. No case is chargeable until the case has been confirmed for hearing but an additional
sum of not more than 15% of the instruction fee may, if the judge so directs, be
allowed against the party seeking the adjournment in respect of each occasion upon
which a confirmed hearing is adjourned.

6.8.19.1 Getting Up Fee - only Chargeable Once

A getting up is only chargeable once and not on every occasion the case is adjourned.
Instruction fees are static, that are chargeable only once. In view of this, it is difficult
to accept the argument that the getting up fee, which is based on the instruction fee,
is somewhat elastic and is chargeable on every day to which the case is adjourned: Per
Emukule, J in Asea Brown Boveri v Bawazir Glass Works Ltd and another.340

Facts
The applicant lodged a taxation reference objecting to the reduction of its bill of
costs. The applicant contended that it was entitled to charge twice for getting-up fees
because the hearing was adjourned and did not proceed on the first day it came up
for hearing, and there was a long time interval between the first and next hearing
date, thus necessitating fresh preparation for trial. Further, the applicant argued that
attendance fees should have been allowed on the higher scale as the matter had been
defended.
The respondent objected to an increase in the bill. It contended that instructions
and getting-up fees are awardable only once in the trial, and that a further increase of

338 Kuloba gives a good account and distinction in getting up fees for trial and an appeal. A reading of the analysis
is recommended.
339 Supreme Court of Kenya at Nairobi Civil Case No. 96 of 1960- per Kuloba at page 154.
340 [2005] 1 EA 17.
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370 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

instructions fees on account of subsequent hearings may be allowed but only upon an
order of the trial Judge following an application to that effect. It was also contended
that attendance fees were to be granted on the lower scale unless there was a special
order of the trial Court.
Justice Emukule held that unless there was an order for a retrial of a matter,
there is but one trial of a suit and many hearing days to which such trial may be
adjourned.To say otherwise is complete heresy of the rules of procedure. He dismissed
the application on the following grounds:
1. A taxation reference would be entertained either on a point of law or on the ground
that the bill as taxed was manifestly excessive or inadequate. The instructions fee
should cover the advocate’s work, the taxing master should tax each bill on its merits,
the taxing officer should exercise his discretion judiciously and in accordance with
the applicable Schedule, and the taxing officer should also consider the public policy.
Kassim v Habre International Ltd [2001] 1 EA 98 adopted.
2. Instructions fees are static, that is chargeable only once. In view of this, it is difficult
to accept the argument that the getting-up fee, which is based on the instruction fee,
is somewhat elastic and is chargeable on every day to which the case is adjourned,
more so if there is a long period between two hearing dates. There is neither such
rule in law or principle. First American Bank of Kenya Ltd v Shah [2002] 1 EA 64
considered.
3. High Court attendance fees, unlike those in the lower Court, are only chargeable on
the higher scale where a judge has certified that the matter be taxed on the said scale
because of the nature, importance, difficulty or urgency of the case or issues involved
in the case. Where no such order is made under paragraph 50A of the Advocate’s
Remuneration Order, the costs shall be taxed in accordance with the lower scale.

6.8.19.2 Getting up Fees in Constitutional Petitions

In the case of Nguruman Limited v Kenya Civil Aviation Authority and 3 others,341 Justice
Lenaola dismissed an objection raised by the applicant that getting up fees were not
payable in a constitutional petition that was determined only on the basis of affidavit
evidence. The court held:
“Whether a getting up fee was awardable
The petitioner contended that the 1st and 2nd respondents were also not entitled to a getting
up fee because the matter did not go for trial and was decided on affidavit evidence only.
When deciding on this issue, the Taxing Master stated as follows;
“The respondent argued that the applicants ought not have charged fees for getting up
for trial because this matter did not go to hearing but was determined based on affidavit
evidence and submissions. According to the respondent ‘hearing of a matter’ denotes the
calling of witnesses and adduction of oral evidence in Court, culminating into a judgment
at the conclusion of the case. Counsel for the respondent referred this Court to the case
of National and Grindlays Bank (Civil Case No.1076 of 1964) and also quoted the book
‘Judicial Hints on Civil Procedure’ at page 147 and 148. I have gone through the same
but I do not agree with the submissions by the respondent herein that fees for getting up

341 [2014] eKLR

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Principles of Taxation: Procedures and Law 371

is only allowable where the matter has gone to full hearing. I also do not agree with his
submission that hearing only entails the calling of witnesses and adduction of viva voce
evidence.
Schedule VI, paragraph 2 of the ARO (2009) states as follows on fees for getting up: -
‘In any case in which a denial of liability is filed or in which issues for trial are joined by
the pleadings, a fee for getting up and preparing the case for trial shall be allowed …...’
The rule only envisages a situation where in a case, there is denial of liability. That was
the case in this matter when the applicants herein field their response to the petition. It
matters not in which manner the matter was subsequently disposed of.
As such, I find that fees for getting up was properly charged. I    tax the same at KShs
200,000.00 (One third of the instruction fees allowed at Items 1 and 2 above).”
I agree with the taxing master and I am certain that he addressed his mind correctly to
the law in reaching the above decision. Even if the taxing master had been wrong, it
is clear that the 1st and 2nd respondents are entitled to getting up fees. They contested
the petition. From the record before me, the 1st and 2nd respondents’ contested the petition,
filed responses to it, filed written submissions and attended the hearing of the petition
which was argued before Mumbi J. on 28 November 2012. That to my mind makes the
1st and 2nd respondent’s entitlement to getting up fees as they clearly and separately denied
liability for the actions complained of.’’

6.8.19.3 No Getting Up Fees in Applications

There are instances where advocates have applied for getting up fees where application
have been dismissed.
In the case of Sarah Chelagat Samoei v Musa Kipkering Kosgei and another,342 the
applicant filed a reference against the Ruling by the taxing officer who taxed the
defendant’s bill of costs on the wrong premises by treating the application for transfer
of suit as a suit instead of taxing costs on the basis of the application that was dismissed.
In addition, the applicant objected to getting up fees being allowed on the basis of an
application that was dismissed. Justice Antony Ombwayo allowed the reference and
held as follows:
“This court finds that the application to transfer the suit from a subordinate court to
Environment and Land Court cannot be defined as a suit but an ordinary application filed
under section 18(1)(b) of the Civil Procedure Act, 2010. The section contemplates the
transfer of an existing suit and therefore, the application in itself cannot be a suit.
The Taxing Officer misdirected herself to find that the proceedings to transfer the suit
from Subordinate court to Environment and Land Court were a suit as the same was an
application clearly defined in section 18 of the Civil Procedure Act, 2010.
The upshot of the above is that the reference is allowed and the Bill of Costs is ordered to
be taxed under Schedule VI(o) VII. Of the Advocates Remuneration Order. I have taken
into consideration the nature of the application being an application commenced in the
High Court in respect of a matter in the subordinate court and the work-load involved
and do grant KShs 10,000 as instruction fees.

342 [2016] eKLR

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372 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Item 2 is not allowed having held that this was not a suit envisaged under section 3 of the
Civil Procedure Act, 2010.”

6.9 Arbitration Matters

It is important to recognize the special status of the arbitral process vis-a-vis the court
process. The importance is crucial when it comes to taxation of costs and it must
be very clear that the costs will be determined on whether the court has assumed
jurisdiction or not in a dispute that has an arbitration clause. Let us examine how
courts have addressed the arbitral process.

Supremacy of Arbitral Process

The Court of Appeal in the case of Safaricom Limited v Ocean View Beach Hotel Limited
and 2 others343upheld the supremacy of the arbitral process and held that the decisions
by the High Court were a nullity on account of interfering with an arbitral process.
Justice Nyamu, J.A summarised the jurisdictional limitations when matter is to be
referred to arbitration. He held, inter alia, as follows:
a) In the circumstances of the matter before the Court, it is quite clear that the
superior court has stepped out of its jurisdiction and unless such a step is stopped,
this Court’s process is likely to be bogged down with matters which ought not to
have come to it in the first place under any of this Court’s Rules.
b) The High Court should have confined itself to the issue of either granting the
interim measure or refusing to grant it without delving into the merits.
c) The usurpation of the arbitrator’s jurisdiction by the superior court also
contravened section 17 of the Arbitration Act.
d) By dealing with the matter contrary to sections 7 and 17 of the Arbitration Act,
the superior court clearly lacked jurisdiction and therefore its decision constituted
a nullity.
Samuel Githitu and another v Duncan Kariuki344was a Court of Appeal decision
concerning the role of the court during a pending arbitral process. The court held:
“It must therefore follow from what we have said so far, that the learned Judge had no
jurisdiction to hear the petition, the same being in a state of suspended animation as long as
the order for arbitration remained in force.That is why we accept Mr. Mahan’s submissions
that the proceedings before the learned Judge were a nullity.’’
The Court of Appeal in the case of Niazons (K) Ltd v China Road & Bridge Corporation
Kenya345 that the policy of law is that concurrent proceedings before two or more
fora is disapproved. Section 6(2) of the Arbitration Act, 1995 did not permit parallel
proceedings to be handled simultaneously.

343 [2010] eKLR

344 Civil Appeal No. 157 of 1998
345 [2001] KLR 12
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Principles of Taxation: Procedures and Law 373

6.9.1 Residual Scale Fees Apply in Application to Enforce, Set Aside Arbitral
Award or Refer a Matter to Arbitration
Schedule 6(l)(iii) of the Advocates (Remuneration) (Amendment) Order, 2014 has set
a fee of KShs. 50,000 to present or oppose an application for setting aside an arbitral
award.
The Court of Appeal gave an excellent exposition of the law on the issue of
what fees are applicable when a matter has been referred to arbitration in the case of
Kangethe & Co. Advocates v Kenya Pipeline Company Ltd.346 The subject matter which
gave rise to the taxation in the High Court was a construction contract which had an
arbitration clause. The contract sum was varied to KShs 914,529,148.45. The matter
was referred to arbitration as per the intention of the parties. The taxing master did
not take into account the nature of the suit that had simply sought injunctive relief
and referral of the dispute to arbitration. An appeal was lodged from the ruling of
the High Court given in respect of a bill of costs taxed by a taxing officer in the
High Court in the sum of KShs 24,927,407. Following a reference, the judge reduced
the instruction fees awarded by the taxing officer from KShs 13,772,937.23 to KShs
1,000,000 thereby provoking the appeal.
The Court of Appeal dismissed the appeal and did not award any costs as both
parties had come to court in contravention of the arbitration clause. The Court of
Appeal correctly held that instruction fees are not payable based on the value of the
subject matter when the matter has been referred to arbitration. The summary of the
findings is as follows:
1. At the outset, it is not in dispute that the matter was referred to arbitration as per the
intention of the parties as captured by the initial agreement and the arbitration clause
and for this reason the greater portion of costs including instruction fees would
arise in the arbitration. Failure on the part of a taxing officer to take into account
the substance and the nature of the suit and what in law the parties had consistently
bound themselves to do, would result in the parties paying costs and fees twice over
for the same subject matter, a situation which would be in our view, unjust.
2. Where there is an enforceable arbitration agreement this should put the court on
notice that it ought to handle the matter in recognition of the right of autonomy
of the parties to refer the matter to arbitration as provided for in section 6 of the
Arbitration Act, 1995.
3. The court’s role is to facilitate arbitration, unless a matter falls within the specified
exceptions set out in the section to justify the continuation of a suit.
4. It is not in dispute that following the respondent’s application based on section
6(2) above, the High Court did make an order of reference to arbitration pursuant
to the section. In addition to the above provision we consider that all the parties
including counsel should have borne in mind section 10 of the Arbitration Act
which states: -
5. “Except as provided in this Act no court shall intervene in matters governed by this
Act.”

346 [2001] eKLR

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374 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

6. In Kenya, the role of the court is limited by section 10 of the Arbitration Act and
its role or intervention must remain as specified in the Arbitration Act. Indeed, the
aim of the Act is to drastically reduce the extent of court intervention in the arbitral
process. In practice this must in turn involve balancing the right of party autonomy
against abuse of process which may occur in the hands of the arbitral tribunals.
7. In this regard, the High Court did quite correctly, in our view, rescue the arbitration
by making a referral order in a situation where both parties without any regard to
the arbitral clause in the construction agreement resulted in civil litigation in court,
contrary to the enabling arbitration law.
8. The referral order in our view brought to an end the suit and in its place gave rise
to a cause in the arbitration.
9. We agree with the High Court that the instruction fees ought to have been pegged
to the nature of the matter which was within the jurisdiction of the court when
the instructions were terminated. In the circumstances it is our view the big figures
relating to the value of the subject or including the contract sum had nothing to do
with the instruction fees.
10. It was wrong for the taxing master to have sanctioned the payment of a fee based
on a glaring misapprehension of the applicable process and the law. In law what was
rightfully before the court is the interlocutory application seeking a referral order
and therefore the instruction fees ought to have been confined to the application.
11. What counsel give to their clients are skilled services in consideration of fees. For
this reason, it is clear to us since the validity of the arbitration clause was not in
doubt the matter ought not to have progressed beyond the interlocutory application
seeking a stay order, and as a result any fees payable as stated above ought to have
been based on the chamber application because the court had in law no jurisdiction
to entertain any other claim.
12. In the circumstances the filing of defence and counterclaim in the suit was in our view
a misapprehension of the law. As at the time the appellants received the instructions
they did not have a suit to defend but only had a reference to arbitration application
to respond to and therefore the appellants’ contention that the fees ought to have
been based on the contract sums, is in our view, without justification whatsoever.
In the case of Kenya Wildlife Services v Associated Construction Co. Ltd347 the plaintiff
took out an originating summons under section 17(6) of the Arbitration Act. The
High Court ruled that the arbitrator had no jurisdiction to entertain the substantive
matters. The plaintiff ’s prayers were upheld and he filed a bill of costs and claimed an
instruction fee of KShs. 1,547,202. The taxing officer taxed this figure off to KShs
6,000. The plaintiff then filed a reference. Justice Ringera (as he then was) held as
follows:
1. The originating summons was not a suit for KShs 100,480,137 as argued by the
plaintiff ’s advocate, but an application to determine whether the arbitrator had
jurisdiction. Schedule VI(1)(b) was therefore not applicable in the taxation.

347 [2002] 2 EA 420

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2. The plaintiff ’s instruction fees ought to have taxed under paragraph 1 of Schedule
VI, which provides that the sum shall be reasonable but not less than KShs 6,000
since taxation was done under wrong provisions. The matter would be referred for
re-taxation.

6.10 Costs – Ordinary or Higher Scale

Advocates usually file their bills of costs and apply the higher scale for attendances
hoping that this may not be noticed and if so argue that these are scale costs. However,
this practice is wrong as the judge must order costs on a higher scale before one can
apply those costs.
In the case of Murgor and Murgor v Central Bank of Kenya and another348 the taxing
officer held as follows:
“It is only the learned Judge who ultimately rules that the matter is complex and may later
on order for costs on a higher scale. This is not the case so far, nor can it be speculated
for an award of instructions fees in the present matter. There is nothing to warrant such
increase, which may be unfair and unreasonable, based on wrong premises.’’

6.10.1 Costs of Interlocutory Applications

Unless the court directs the immediate taxation and payment of costs in an interlocutory
application there should only be one taxation of costs in an action, and costs of an
interlocutory application should be held over until the final disposal of the suit: Homi
Dara Adrinwalla v Jeanne Hogan and another.349The court held as follows:
“The Registrar, following Kenya practice, refused to tax the costs until the final disposal of
the action, and the defendants appealed. Sheridan, C.J. held that the ruling of the Registrar
refusing to tax the costs of the interlocutory application prior to the determination of the
suit was correct.
In another case, Abdi Nuri v B.E.A. Corporation and Another (2), while the case was pending
the plaintiff made an interlocutory application which was successful, his costs being allowed.
An application was thereupon made to the Registrar for the costs to be taxed and a decree
for the amount to be drawn up with a view to execution. The Registrar refused and the
application was referred by consent to the judge in chambers who upheld the order of the
Registrar. That decision turned on the meaning of “decree”.
In Phillips v Phillips and others, (3), the headnote reads as follows:
“An application by a defendant in an action in the Queen’s Bench Division, to strike
out the statement of claim as embarrassing, having been refused by a Divisional Court,
the defendant appealed, and the Court of Appeal made an order ‘that the judgment
of the court below be reversed with costs of this appeal and of the proceedings in
the court below’. The defendant applied to the master to tax the costs, which he
declined to do on the ground that they were costs of an interlocutory application,
and that the taxation must stand over till the termination of the action:

348 Nairobi HCCC No. 694 of 1998 (Bhatt, PDR on 11th June 1999)-see Odunga’s Digest at page 4031
paragraph 8721 note [r].
349 [1966] EA 290.
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Held, by the Court of Appeal, that the practice of the Common Law Divisions to
have only one taxation of costs in an action does not apply where costs are given
by the Court of Appeal, and that under an order of the Court of Appeal directing
payment of costs, without any intimation that the taxation and payment are to be
postponed, the party to whom they are ordered to be paid is entitled to have them
taxed and paid forthwith.”
In that case both counsel agreed it was common ground that in the Common
Law Divisions the practice has prevailed of having no taxation of costs till the
termination of the action, and that it was the common law practice. It was there held
that that practice cannot be applied to an order of the Court of Appeal, and that the
order of the Court of Appeal ought to be obeyed, and that an order directing costs
to be paid means that they shall be taxed and paid forthwith.
I cannot find, nor has there been referred to me, any authority for taxation of
interlocutory applications in Tanzania. In Butterworth on Costs at page 97 there is this
short paragraph:
“Where an interlocutory order is made for costs “to be paid”, the party entitled to
costs may proceed to taxation of such costs forthwith, although the action may still
be pending.”
A final order is one made on such an application or proceeding that, for whichever
side the decision is given, it will, if it stands, finally determine the matter in litigation.350

6.11 Notice of Taxation

When a party had entered appearance, and did not appear at the hearing resulting in
judgment being entered, he is entitled to notice of taxation: Opa Pharmacy Ltd v Howse
and McGeorge Ltd.351

Facts
The respondent filed a memorandum of appearance in the suit but did not appear at
the hearing when judgment was given against it. A bill of costs was filed and taxed
without notice having been given, the taxing officer allowing double the scale fee.
The appellant appealed contending that it should have had notice of taxation and
that the taxing officer’s discretion to increase the instruction fee had been exercised
unjudicially.
The court allowed the appeal and held:
Held –
1. Appearance means the filing of a memorandum of appearance;
2. The appellant was therefore entitled to notice of taxation;
3. The taxing officer had not exercised his discretion judicially as he had given no
reason for increasing the instruction fee.

350 Salaman v Warner and others [1891] 1 QB 734; Bozson v Altrincham Urban District Council [1903] 1 KB 547.
These cases were adopted in the case of Bank of Uganda v Banco Arabe Espanol [1999] 2 EA 45-see Odunga’s
Digest at page 4005 paragraph 8696.
351 [1972] EA 233
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Principles of Taxation: Procedures and Law 377

6.12 Attendances
No attendance fees are allowed for attendance by a clerk as only advocates are entitled
to attendance fees: per Ranjanbala daughter of Nathalal Sachdev v Jayantilal Bhagwanji
Madvani and 2 others.352

6.13 Folio
Rule 17 of the Advocates Remuneration Order defines the length of a folio as:
“A folio shall for all purposes of this Order be deemed to consist of 100 words and any
part of a folio shall be charged as one folio. A sum or quantity of one denomination stated
in figures is to be counted as one word: e.g. “£25,564 16s 8d.” is to be counted as three
words, and “254 feet 11 inches” is to be counted as four words.’’
The costs per folio as defined under the headings of Drawings, Copies and
Correspondence. Black’s Law Dictionary353 defines the word draw:
“to compose and write out in due form, as, a deed, complaint, petition, memorial, etc.’’
Correspondence is defined as:
“Interchange of written communications. The letters written by a person and the answers
written by the one to whom they are addressed.The agreement of things with one another.’’
However, advocates have mistakenly applied folios to lengthy authorities that were
copied and thus inflating the costs to tens of thousands of shillings. Part 5(c) of the
Advocates Remuneration Order allows for printing costs supported by vouchers. Any
application of folios to printed authorities is irregular and unlawful.
Rule 75 of the Advocates Remuneration Order addresses the numbering of folios
on documents to be charged by the folio. It reads:
(1) All drafts and other documents or copies thereof, the preparation of which is charged
for, shall be produced at taxation if required by the taxing officer.
(2) The length of all documents not vouched by production of the original or copies
thereof or other evidence satisfactory to the taxing officer may be certified by the
advocate in writing, and if such certificate be found by the taxing officer to be
erroneous, the taxing officer may disallow the cost of the document so erroneously
certified or any part thereof.

6.14 Witness Expenses

Rule 74A of the Advocates Remuneration Order provides for witness expenses as
follows:
(1) The taxing officer shall allow reasonable charges and expenses of witnesses who have
given evidence and shall take into account all circumstances and without prejudice
to the generality of the foregoing, the following factors—
(a) the loss of time of the witness;

352 Supreme Court of Kenya at Nairobi Civil Case No. 142 of 1961, (3rd December, 1963) - per Kuloba at page
156.
353 6th Edition, St. Paul, Minn. West Publishing Co. 1990.
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378 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(b) if the witness is a party, the time spent giving evidence;

(c) the loss of wages or salary to the witness or his employer while attending court;
(d) the cost of travelling, board and lodging in accordance with the status of the
witness;
(e) where the witness is a professional man, any scale fees by which he may charge
for his time or attendance;
(f) if the witness came from abroad, whether this was a reasonable means of
obtaining his evidence after considering the importance or otherwise of his
evidence;
(g) where the witness is an expert witness as defined by the Evidence Act (Cap.
80) and has given evidence, a fee for qualifying to give evidence where he has
reasonably had to spend time, effort or money in investigating the particular
matter on which he gave evidence.
(2) The taxing officer shall allow reasonable charges and expenses in respect of any
person not actually called as a witness whose attendance has been certified as
necessary by the Judge.
A taxing officer must have sight of receipts and vouchers for all disbursements incurred
and set out in the bill of costs.354
Expert witnesses are entitled to their costs and expenses.Where a witness is one of
the parties, e.g. one of the plaintiffs, according to the settled practice of the court, he
is entitled to claim allowance for days he gave evidence in court and not for attending
court on the other days, watching proceedings in the case: per MF Patel,Taxing Officer,
in Bhatt and 3 others v Shamji Visram and Kurji Karsam.355

6.15 Unreasonable Costs/Expenses May not be Allowed

The court in the case of Industrial and Commercial Development Corporation v Peter
Daniel Otachi356 held that the general principle was that no costs shall be allowed which
appear to the taxing officer to have been incurred or increased through over-caution,
negligence or mistake or by payment of special charges or expenses to witnesses or
other persons, or by other unusual expenses.The court relied on the following English
cases:
Luxuries
1. Smith v Buller357 (per Sir R Malins V-C), as being: all that are necessary to enable
the adverse party to conduct the litigation, and no more. Any charges merely for
conducting litigation more conveniently may be called ‘luxuries’ and must be paid
by the party incurring them.

354 See page 160 of Kuloba.

355 Supreme Court of Kenya at Nairobi, Civil Case No. 1415 of 1959- per Kuloba at page 159.
356 [1977] eKLR
357 [1875] LR 18 Eq 473, 475
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Principles of Taxation: Procedures and Law 379

Unusual Expense
1. Re Blyth and Fanshawe, ex parte Wells358 that an unusual expense will only be allowed
against the party who incurred it.
2. On a claim for witness expenses.
3. In Re Ratanshaw Bejonji Sutaria’s Application359 the facts were as follows:
On taxation of a bill of costs an item for writing a letter to the employer at
Mombasa of a witness whom it was intended to call to give evidence at Zanzibar
was disallowed on the ground that it would permit an advocate to write a letter in
lieu of summoning the witness. Another item disallowed was a telephone call by the
advocate to a witness telling him to come by air instead of as arranged by sea since
otherwise he appeared likely to arrive late for the hearing. Claims by two witnesses
from Mombasa for loss of earnings and hotel expenses whilst detained as witnesses
at Zanzibar were disallowed on the ground that these were not within Appendix I
to the Civil Procedure Rules. On review of taxation
Held –
(a) where the attendance of a witness cannot be secured by a witness summons
because he is outside the jurisdiction of the court, it is reasonable to allow the
costs of a letter to his employer, requesting permission for him to attend a trial.
(b) a telephone call made to ensure the arrival within the jurisdiction of a witness
in time for a trial may be necessarily incurred, and in the instant case should
have been allowed.
(c) where a witness is outside the jurisdiction of the court there is no process
which can compel his attendance against his will, and it may, therefore, be
necessary to pay such a witness more than the sums allowed by Appendix I to
induce him to attend the hearing, and on taxation of a party and party bill of
costs, the taxing officer should exercise his discretion by considering whether
any extra payment made to such a witness was necessary and proper for the
attainment of justice and the proper conduct of the case; if the extra payments
appear to be luxuries they can be disallowed or a lesser sum allowed.
Horsfall, Ag CJ remitted the taxation to taxing officer for further consideration.
observed:
“If a party chooses to pay his witness something extra to more fully reward or compensate
him for giving evidence on his behalf this is a luxury which was not necessary to secure
the witness’ attendance and it should not be allowed as an expense recoverable from the
other party on a party-and-party taxation.’’
Necessary and proper
4. The words “necessary” and “proper” have been exhaustively considered by Kerr, J in
Garthwaite v Sherwood,360 where the judge also traced a number of earlier decisions
on this subject. At page 708, he observed:

358 (1882) 10 QBD 207

359 [1960] EA 656, 658
360 [1976] 1 WLR 705
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380 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

“In this connection it is helpful to remind oneself of what was said by Sachs, J
in Francis v Francis and Dickerson [1956], pages 87, 95. The passage in question is
conveniently cited in Cordery on Solicitors (6th edition) (1968), page 311, which
says: ‘Proper’ includes costs not strictly necessary but reasonably incurred for
the purpose of the proceedings … It then quotes the following passage from
this judgment: ‘When considering whether or not an item in a bill of costs is
“proper” the correct viewpoint to be adopted by a taxing officer is that of a
sensible solicitor sitting in his chair and considering what in the light of his
then knowledge is reasonable in the interests of his layclients … (He) should
be deemed a man of means adequate to bear the expense of the litigation out
of his own pocket – and by “adequate” I mean neither “barely adequate” nor
“super-abundant.”

6.16 Change of Advocates

Where a successful party’s full bill of costs, including instructions fee, was filed by an
advocate who had not done the preliminary work but only came on record at a very
late stage when he was instructed merely to tax the costs, it was held that this advocate
was not entitled to costs for works done by other advocates who were then on record,
and his bill was rejected in toto: Bhatt v Singh.361 The Ruling of the taxing officer was
affirmed. Leave was granted to withdraw the bill and to file a fresh bill.

Facts
The advocates acting for the successful respondents in an appeal remained on the
record till taxation when other advocates were instructed who filed a bill in normal
form showing all the work and disbursements claimed as having been done or made
by them. At the taxation, they stated that the only work actually done by them was to
draw up the order and lodge the bill of costs. The taxing officer following Bhagwanji
Premchand and others v J. M. Gomes and others (1956), 23 E.A.C.A. 296, disallowed the
bill in toto whereupon the matter was referred to a single judge under rule 6(2) of
the Eastern Africa Court of Appeal Rules, 1954. On the reference the respondents
sought to have the taxing officer’s ruling reversed and the bill referred back to him for
taxation; alternatively, they asked for an order that the bill be amended, if necessary.
The court held that the bill was not a true factual statement of services rendered, as it
purported to be an account of services rendered to the respondents, of disbursements
made and of instructions given to counsel on their account by advocates who had not
done this work.
In principle, when it comes to the question of priority as to costs between
advocates, an advocate who last conducted the suit is the person who ought to take
his costs first: Connel, J in Govindji Popatlal v Narshidas M Bhudhdeo.362
Rule 62A of the Advocates Remuneration Order provides as follows and
importantly provides that the final bill should not be larger than if a single advocate
had been employed.
“62A. Costs where there has been a change of advocates

361 1962 EA 104.

362 Of Supreme Court of Kenya at Nairobi, Miscellaneous Civil Case No. 1960- Kuloba page 166.
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Principles of Taxation: Procedures and Law 381

(1) Where there has been a change of advocates or more than one change of
advocates, the advocate finally on the record shall draw a single bill for the
whole of the matter in respect of which costs have been awarded.
(2) On taxing the bill, the taxing officer shall take into account the following
principles, that the bill shall not be larger than if a single advocate had been
employed and that the party taxing the bill shall not obtain indemnity for costs
which he has not paid.
(3) The bill shall be accompanied by a certificate setting out the dates during
which all advocates acted, together with all agreements for remuneration made
with them, all sums paid to them for costs and whether those sums were paid in
full settlement.’’
In the case of Machira and Company Advocates v Arthur Magugu and another,363 the court
held that paragraph 62A of the Advocates Remuneration Order applies to the taxation
of party and party costs and the object thereof is to avoid loading a party against
whom an order for costs had been made with excessive fees as a result of change of
advocates by the adverse party and there is nowhere in the Remuneration Order
compelling a conclusion that advocate/client costs can only be taxed after the party
and party costs are taxed.364

Facts
The applicant, a firm of advocates, filed for taxation an advocate/client bill of costs
against the respondent, the client, before a Deputy Registrar. A decision on taxation
was made on 31 January 2002 and both parties given 30 days to appeal. On 8 October
2002, the advocates filed reference in the High Court under rule 11 of the Advocates
(Remuneration) Order seeking that the order of taxation be set aside and varied by
increasing the sum payable on the advocate. The client filed reference under sections
44 and 51 of the Advocates Act and rule 13(1) of the Advocates (Remuneration)
Order seeking to have the amount taxed reduced. It was argued for the advocates that
the client’s reference was incompetent as it was brought under irrelevant provisions.
The advocate’s reference was attacked as being incompetent because both the
objection and reference had been done outside the time allowed by rule 11(1) of
the Advocates (Remuneration) Order. It was also argued that the chamber summons
reference did not have the endorsement required by Order L, rule 15(2) of the
Civil Procedure Rules. The client also contended that the advocates’ bill had been
premature because the suit had not been finalised and party and party costs had not
been taxed and the advocate’s were not entitled to full instruction fees. The client
relied on paragraph 62A of the Advocates (Remuneration) Order.
It was further contended for the advocates that the advocate’s reference was made
within time because the 30 days given by the Deputy Registrar within which to
appeal amounted to an extension of time.
The court dismissed the advocate’s reference and held:

363 [2002] 2 EA 428 (CCK)

364 [2002] 2 EA 428
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382 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

1. Under paragraph 11 of the Advocates (Remuneration) Order objection to a

decision of the Registrar should be filed within 14 days of receiving the decision
and reference to the High Court should be made within 14 days of receiving the
reason for the decision. The Deputy Registrar has no power to extend time limited
under paragraph 11.The power to extend is vested in the High Court.The advocates
reference was filed out of time and was incompetent.
2. Sections 44 and 51 of the Advocates Act and paragraph 13(1) of the Advocates
(Remuneration) Order did not aid the client in the reference and were misplaced.
The Advocates (Remuneration) Order is a complete code and there is no provision
for invocation of the Civil Procedure Rules. The Advocates Remuneration Order
does not provide for an appeal and only a reference under paragraph 11 of the order
can ventilate any dissatisfaction.
3. Paragraph 62A of the Advocates (Remuneration) Order does not bar an advocate
from taxing his bill against his client for whom he had ceased acting before the
conclusion of the suit. The principle is that no litigant should be unduly burdened
with costs incurred as a result of change of advocates by the adverse party; Machira
and Co Advocates v Magugu [2001] LLR 1317 (CCK) doubted.
4. There is no requirement that party and party costs must be taxed before advocate/
client costs can be taxed.
It is not correct to say that fees cannot be apportioned between the outgoing and
incoming advocates. The instructions continue until the conclusion of the suit or the
subject matter in court and so does the instruction fees. One cannot say that once
he has filed a defence, instructions and instructions fees end there. The only logical
conclusion is that instruction fees attach to that portion of work. If any justification
is needed, it can be found in the words “ all other relevant circumstances’’ in the first
proviso to item (1) of Schedule VI of the Advocates Remuneration Order: Murgor and
Murgor v Central Bank of Kenya and another.365

6.17 When can a Party be Deprived of Costs?

Order 3, rule 2(d) of the Civil Procedure Rules provides that copies of documents to
be relied on at the trial including a demand letter before action shall, inter alia, be filed
with the other suit documents.
Rule 53 of the Advocates Remuneration Order provides the following:
No advocate’s costs where suit brought without notice except on special order
“If the plaintiff in any action has not given the defendant notice of his intention to sue,
and the defendant pays the amount claimed or found due at or before the first hearing,
no advocate’s costs shall be allowed except on a special order of the judge or magistrate.’’
Do not rush to file suit before sending out a letter of demand.

365 Nairobi HCCC No. 694 of 1998 (Bhatt, PDR on 11th June 1999)-see Odunga’s Digest at page 4031
paragraph 8721 note [s]. The taxing officer also relied on the cases of Mayers and another v Hamilton and
others Civil Appeal No. 48 of 1974 and Abdul Aziz Suleman v Igembe Farmers Co-operative Society Ltd and
another [1966] EA 351.
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Principles of Taxation: Procedures and Law 383

6.18 Thrown Away Costs

Once judgment has been entered ex-parte and a defendant successfully applies to set
aside judgment, he is as a matter of course entitled to pay costs thrown away. These
costs may comprise all costs incurred in enforcing the judgment such as execution
proceedings, garnishee proceeding, court filing fees incurred in filing the proceedings
and auctioneer’s costs. This does not extend to instruction fees as the original action
is simply reinstated. However, the courts have a discretion to limit the costs and upon
conclusion of the trial the taxing officer will then have to examine the initial order
and determine what costs were allowed upon the final taxation.
The party who ultimately succeeds in the substantive suit will also be awarded
the costs of this application, as well as the thrown-away costs. The conduct of the
defendant will also be a factor in determining the issue of thrown away costs as shall
be determined by the High Court which will issue appropriate orders and directions.
For instance, in the case of Sucham Investments Ltd T/A Tiwi Beach Resort v Trident
Insurance Company Limited and another,366 Justice Ochieng allowed an application to set
aside judgment on the following terms:
“For now, therefore, the Court Broker who commenced the execution process will be
paid by the plaintiff and the applicant. Each of them will meet one-half of those costs.
However, the successful party will be entitled to reclaim such payment from the other
party.’’

6.19 VAT is not Payable on Party and Party Costs

Section 5(4) of the Value Added Tax Act, 2013 provides that:
“The amount of tax payable on a taxable supply, if any, shall be recoverable by the registered
person from the receiver of the supply, in addition to the consideration.”
The receiver of the supply is by no doubt the advocate’s client and not the opposing
party.
It is therefore improper for an advocate to include VAT in a party and party bill
of costs.
In support of the above position, Justice Onguto in the case of Pyramid Motors
Limited v Langata Gardens Limited367 held as follows:
“On the final issue of VAT, I hold the simple view that in allowing the same the Master
erred under the Value Added Tax Act, 2013 particularly section 5 thereof.Value Added Tax
(VAT) is chargeable in taxable supply made by any registered person.There was no taxable
supply of either goods or services made to the applicant herein by the respondent herein.
The Bills herein concerned Party and Party costs and VAT could then not apply as neither
party fetched nor supplied services to the other. True, legal services were rendered but it is
not the Advocate who was being compensated herein.The Master could only have awarded
VAT if the Bills were Advocate-Client Bills or if there was tendered evidence before the
Master that the plaintiff had paid VAT and was consequently entitled to indemnity. But yet

366 [2015] eKLR

367 [2015] eKLR
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384 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

that again is also debatable whether the plaintiff was a vatable person. I would vacate the
award on VAT as the Master erred.”

6.20 Registrar to Record Consent Order as to Costs

Rule 57 of the Advocates Remuneration Order empowers the taxing officer to direct
parties to tax any agreed costs if they are deemed to be exorbitant.
The Rule reads:
Rule 57:
(1) If, after the disposal of any proceedings by the Court, the parties thereto agree
the amount of costs to be paid in pursuance of the Court’s order or judgment
therein, the parties may in lieu of filling a bill of costs and proceeding to taxation
thereof, request the Registrar by joint letter to record their agreement and unless he
considers the amount agreed upon to be exorbitant the Registrar shall do so upon
payment of the same court fee as is payable on the filling of any document for which
no special fee is prescribed.
(2) Such agreement where recorded shall have the same force and effect as a certificate
of taxation by the taxing officer:
Provided that if the taxing officer shall consider the amount so agreed upon to be
exorbitant he may direct the said costs to be taxed in accordance with this Order and
the provisions of rule 11 shall apply in regard to every such taxation.

6.21 Costs in the High Court may be Restricted to Subordinate

Courts’ Scale
Rule 58 is not commonly used but it provides thus:
“In causes or matters which, having regard to the amount recovered or paid in settlement or
the relief awarded, could have been brought in a resident magistrate’s or other subordinate
court, costs on the scale application to subordinate courts only shall be allowed unless the
judge otherwise orders.’’

6.22 Reasons Contained in the Ruling – no need to ask for reasons

Rule 11 of the Advocates (Remuneration) Order provides as follows:
Objection to decision on taxation and appeal to Court of Appeal
(1) Should any party object to the decision of the taxing officer, he may within fourteen
days after the decision give notice in writing to the taxing officer of the items of
taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons
for his decision on those items and the objector may within fourteen days from the
receipt of the reasons apply to a judge by chamber summons, which shall be served
on all the parties concerned, setting out the grounds of his objection.
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Principles of Taxation: Procedures and Law 385

(3) Any person aggrieved by the decision of the judge upon any objection referred to
such judge under subsection (2) may, with the leave of the judge but not otherwise,
appeal to the Court of Appeal.
(4) The High Court shall have power in its discretion by order to enlarge the time
fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application
for such an order may be made by chamber summons upon giving to every other
interested party not less than three clear days’ notice in writing or as the Court may
direct, and may be so made notwithstanding that the time sought to be enlarged may
have already expired.
Nowadays the Rulings by the taxing officer contain the reasons. Rule 11(1) above
is akin to the appendix, which is a vestigial organ. Once the Ruling is obtained, the
recommended practice would be to proceed to file the reference within 14 days. This
saves time.
Justice Ochieng addressed this point in the case of Ahmednasir v Abdikadir and
Company Advocates v National Bank of Kenya Limited (2)368where he applied the dicta
in the cases of Kobil Petroleum Limited v Almost Magic Merchants Limited369 and Postal
Corporation of Kenya v Donald Kipkorir and others370 that held that where the reasons for
the taxation on the disputed items in the bill are already contained in the considered
ruling, there is no need to seek for further reasons simply because the unfortunate
wording of subrule (2) of rule 11 of the Advocates Remuneration Order demands so.
The said Rule was not intended to be ritualistically observed even when reasons for
the disputed taxation are already contained in the formal and considered ruling

6.23 Advocate-Client Bills of Costs

In the case of Muthoga Gaturu and Company v Fidelity Commercial Bank Ltd,371 Justice
Ringera (as he then was) made the following observations regarding the taxation of
Advocate-Client Bills of Costs.
1. There is no Rule of Law in the Remuneration Order which either prohibits the
filing of an Advocate/Client bill of costs arising from a matter in the subordinate
court for taxation or requires that such a bill be disposed of by way of assessment by
the Executive Officer of the lower court.
2. The effects of rules 10 and 13 of the Advocates Remuneration Order is that an
Advocate and Client bill of costs whether in respect of a matter concluded in the
High Court or in the Subordinate Court scale is to be taxed by the Registrar or the
District Registrar or the Deputy Registrar of the High Court upon application by
either the advocate or the client by way of miscellaneous application.

368 [2006] 1 EA 5. The case has been discussed earlier.

369 High Court Civil Case No. 1970 of 2000 (unreported)
370 High Court Civil Case No. 658 of 2004 (OS).
371 Milimani HCCC No. 570 of 2000- see Odunga’s Digest Volume 4 at page 3987 paragraph 8657.
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386 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

6.23.1 Success or failure not a consideration in Advocate-Client Bills of

Costs
The principles of party and party costs do not govern Advocates and Clients fees as in
party and party costs fees is recoverable from the unsuccessful party while in Advocate/
Client fees the success or failure is not a consideration and it does not matter whether
the instruction given was fully completed to the satisfaction of the client nor does
it matter whether the work was partially or fully satisfied as the essential yardstick is
whether the instruction was properly and sufficiently given: M/s Behan and Okero v
Pan African Insurance Company Kisumu.372

6.24 Certificate of Taxation is Final

Under section 51(2) of the Advocates Act, the certificate issued on the taxed costs is
final unless set aside or altered by the Court. Section 51 reads:
“51.(1) Every application for an order for the taxation of an advocate’s bill or for the
delivery of such a bill and the delivering up of any deeds, documents and papers
by an advocate shall be made in the matter of that advocate. (2) The certificate of
the taxing officer by whom any bill has been taxed shall, unless it is set aside or
altered by the Court, be final as to the amount of the costs covered thereby, and
the Court may make such order in relation thereto as it thinks fit, including, in
a case where the retainer is not disputed, an order that judgment be entered for
the sum certified to be due with costs.’’

6.25 Taxation Succession Matters – Instruction fees should be

in
based on the Beneficiary’s Entitlement to the Estate and not
the Gross Value of the Estate

Kipkorir,Titoo & Kiara Advocates v June Nduta Kinyua & another373

The advocate’s client’s entitlement out of an estate worth KShs 251 million was a
sixth of the value of the estate. However, the advocate based his instruction fee on the
sum of KShs 251 million instead of a sixth. The bill was objected to and the Court of
Appeal held, inter alia, as follows:
“23. Taking the gross value of the deceased’s estate at KShs 251 million as accepted by
the Judge and the taxing officer, the appellant’s instruction fees for preparing and
lodging the objection to the grant and filing the cross-appeal ought to have been
based on the 1st respondent’s interest in the estate, i.e. 1/6th of KShs 251 million,
which is 41.8 million. This is the gross value of the 1st respondent’s interest in the
estate and for the purposes of the instruction fees, the subject matter. In light of
that value of the subject matter, the sum of KShs 20 million allowed by the taxing
officer as the appellant’s instruction fees being about 50% of the 1st respondent’s
interest in the estate was totally excessive, unconscionable and unjustified. Moreover,
the figure of KShs 20 million was arrived at by the taxing officer by erroneously
basing the instruction fees on the gross value of the estate instead of gross value of

372 High Court Misc. Case No. 229 of 2003 (Warsame J on 14 June 2005)- see Odunga’s Digest at page 3998
paragraph 8681.
373 [2012] eKLR
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Principles of Taxation: Procedures and Law 387

the respondent’s interest in the deceased’s estate. This was an error of principle as
the taxing officer failed to take into account a material consideration which was the
value of the 1st respondent’s interest in the deceased’s estate. I find that although the
High Court Judge was correct in finding that the taxing officer erred in his decision
regarding the instruction fees, the Judge erred in failing to give proper guidance with
regard to the principle to be applied in determining the value of the subject matter
for the purposes of determining the instruction fees.’’

6.26 Schedule 11- Costs of Proceedings before Tribunals other

than those Under Schedules 8 and 9 of this Order Except
where otherwise Prescribed under the Act Setting up the
Tribunal
Rule 8 of the Schedule has brought about a dilemma when a taxing officer is faced
with a bill of costs, for instance, arising out of procurement matters. Advocates have
begun filing bills of costs basing the instruction fees on the value of the subject matter
which in most cases is the value of successful tender.374 Now if a tender was worth
KShs 350 billion this would mean that the fees would be about KShs 2.5 billion! This
is exorbitant, unconscionable, against public policy and may contravene article 40 of
the Constitution for depriving a party of his property.
This rule needs to be amended to cap the ceiling of recoverable fees and the
Rules Committee can make the recommendation to the Chief Justice to gazette the
amendment. A good guide would be to do away with percentages and simply adopt
the simple formula in Schedule 6 with regard to costs pertaining to constitutional
petitions and judicial review matters.After all, public procurement matters, for instance,
are meant to encourage efficient use of public resources.The Public Procurement and
Disposal Act375sets out the intention and spirit of public procurement as follows:
“2. The purpose of this Act is to establish procedures for procurement and the disposal
of unserviceable, obsolete or surplus stores and equipment by public entities to
achieve the following objectives —
(a) to maximise economy and efficiency;
(b) to promote competition and ensure that competitors are treated fairly;
(c) to promote the integrity and fairness of those procedures;
(d) to increase transparency and accountability in those procedures;
(e) to increase public confidence in those procedures; and
(f) to facilitate the promotion of local industry and economic development.’
A battle before the Review Board is set out in section 93 of the Public Procurement
and Disposal Act that reads:
93.(1) Subject to the provisions of this Part, any candidate who claims to have suffered
or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring
entity by this Act or the regulations,may seek administrative review as in such manner as
may be prescribed. [Emphasis Mine].

374 Rule 51 C was introduced by the Advocates (Remuneration) (Amendment) Order 2014 introducing
reference to Schedule 11.
375 Chapter 412C of the Laws of Kenya
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388 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

The very essence as discerned from a reading of section 93 is really all about
administrative review.
Now when faced with such a difficulty and the bill is opposed, the taxing officer
may resort to asking the parties to consent to refer any matter arising in the bill to
the opinion of the High Court under rule 12 of the Advocates Remuneration Order.
Rule 12 provides as follows:
“Reference by consent
With the consent of both parties, the taxing officer may refer any matter in dispute arising
out of the taxation of a bill for the opinion of the High Court. The procedure for such
reference shall follow that of a case stated but shall be to a judge in chambers.’’
The court should be guided by the principles governing taxation of costs as set out in
the case of Premchand Raichand Ltd v Quarry Services of East Africa Ltd & others,376which
states, inter alia:
“The successful litigant is entitled to a fair reimbursement of the costs he has incurred;
the taxing master must take into consideration the public interest since costs must not
be allowed to rise to such a level as to confine access to courts to the wealthy although
the general level of remuneration of advocates must be such as to attract recruits to the
profession.’’
The issue of proprietary interest or right to bid to ascertain the instruction fee was
discussed in the case of Makumbi and another v Sole Electrics (U) Ltd.377 The court held
that the value of the suit property was immaterial since the respondent company was
not claiming a proprietary interest but the right to bid again for the property. It was
not even certain that their second bid would succeed. Mere production of a long list of
authorities does not mean that there was protracted research by counsel. It is possible
to find any authorities in just one case.
Another good case to fall back to is the case of Republic v Minister for Agriculture
and 2 others ex-parte Samuel Muchiri W’Njuguna and 6 others that has been cited above
under matters pertaining to taxation in judicial.
As a conclusion to this interesting argument regarding Schedule 11, one can further
argue as follows when faced with an exorbitant bill of costs following a procurement
matter:
1. In practice, matters of public procurement are essentially public interest litigation.
2. There is a serious dichotomy and disconnect between the colossal fees under
paragraph 8 that sets out the colossal fees and paragraph 9 that provides fees of KShs.
35,280 where the value of the subject matter cannot be ascertained.
3. A party can file a judicial review from the decision of the Review Board.
4. The costs of the judicial review application are governed by Schedule 6 of the
Advocates Remuneration Order that sets a reasonable sum of costs.

376 (number 3) [1972] EA 162

377 [1990-1994] EA 306.
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5. A tender amount has the component of the actual expenses, costs of materials and
reasonable profit due to the client. It is manifestly unjust to purport to base fees on
the entire sum awarded as this will kill business enterprise and amount to unjust
enrichment. Would one not argue that the value of the subject matter would be the
client’s profit element?

6.27 Bills of Costs should be filed within 6 years

An advocate should not wait for more than 6 years and then file a bill of costs. A
preliminary objection on limitation will be raised if such a bill is raised. If you fall out
with a client, simply make a choice - do you write of any future costs or file a bill of
costs?
If you decide to recover your costs, then do comply with the provisions of Section
48 of the Advocates Act that provides as follows:
48. Action for recovery of costs
(1) Subject to this Act, no suit shall be brought for the recovery of any costs due
to an advocate or his firm until the expiry of one month after a bill for such
costs, which may be in summarized form, signed by the advocate or a partner
in his firm, has been delivered or sent by registered post to the client, unless
there is reasonable cause to be verified by affidavit filed with the plaint, for
believing that the party chargeable therewith is about to quit Kenya or abscond
from the local limits of the Court’s jurisdiction, in which event action may be
commenced before expiry of the period of one month.
(2) Subject to subsection (1), a suit may be brought for the recovery of costs due
to an advocate in any court of competent jurisdiction.
(3) Notwithstanding any other provisions of this Act, a bill of costs between an
advocate and a client may be taxed notwithstanding that no suit for recovery
of costs has been filed.
The Limitation of Actions Act, Cap. 22 under section 4(1) provides for actions under
contract and tort. The following actions may not be brought after the end of six years
from the date on which the cause of action accrued—
4. Actions of contract and tort and certain other actions
(1) The following actions may not be brought after the end of six years from the
date on which the cause of action accrued—
(a) actions founded on contract;
(b) actions to enforce a recognizance;
(c) actions to enforce an award;
(d) actions to recover a sum recoverable by virtue of a written law, other than
a penalty or forfeiture or sum by way of penalty or forfeiture;
(e) actions, including actions claiming equitable relief, for which no other
period of limitation is provided by this Act or by any other written law.
(2) An action founded on tort may not be brought after the end of three years
from the date on which the cause of action accrued:
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390 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Provided that an action for libel or slander may not be brought after the end of
twelve months from such date.
(3) An action for an account may not be brought in respect of any matter which
arose more than six years before the commencement of the action.
(4) An action may not be brought upon a judgment after the end of twelve years
from the date on which the judgment was delivered, or (where the judgment
or a subsequent order directs any payment of money or the delivery of any
property to be made at a certain date or at recurring periods) the date of
the default in making the payment or delivery in question, and no arrears of
interest in respect of a judgment debt may be recovered after the expiration of
six years from the date on which the interest became due.
(5) An action to recover any penalty or forfeiture or sum by way of penalty or
forfeiture recoverable by virtue of a written law may not be brought after the
end of two years from the date on which the cause of action accrued.
(6) This section does not apply to a cause of action within the admiralty jurisdiction
of the court which is enforceable in rem, except that subsection (1) of this
section applies to an action to recover seamen’s wages.
It is trite law that legal services are founded on a contract for professional services between
the client and the advocate therefore, an action to recover such costs is subject to section
4(1)(a) of the Limitation of Actions Act.
Section 52 of the Advocates Act also recognises the issue of limitation where a court will
decline to make a charging order. The section reads:
52. Charging orders
Any court in which an advocate has been employed to prosecute or defend any suit
or matter may at any time declare the advocate entitled to a charge on the property
recovered or preserved through his instrumentality for his taxed costs in reference to
that suit or matter, and may make orders for the taxation of the costs and for raising
money to pay or for paying the costs out of the property so charged as it thinks fit,
and all conveyances and acts done to defeat, or operating to defeat, that charge shall,
except in the case of a conveyance to a bona fide purchaser for value without notice,
be void as against the advocate:
Provided that no order shall be made if the right to recover the costs is barred by
limitation.
Justice Waweru, in the case of Abincha and Co Advocates v Trident Insurance Co Ltd,378
held that an advocate’s claim for costs would be based on the contract for professional
services between him and his client. It would be a claim founded on contract. An
action to recover such costs would be subject to the limitation period set out in
section 4(1)(a) of the Limitation of Actions Act.
One important aspect the judge determined is that any objection to a filed bill
of costs on the ground of limitation should be referred to a judge for determination

378 [2013] eKLR

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Principles of Taxation: Procedures and Law 391

as the taxing officer has no jurisdiction under section 48 of the Advocates Act to rule
on the objection.

Facts
The advocate filed his advocate/client bills of costs. Before the bill could be taxed
the client challenged it by filing an application which in essence sought an order to
strike out the bill of costs upon the ground that the advocate’s claim for costs, being
a claim founded on a contract for provision of legal services, fell within the purview
of section 4 of the Limitation of Actions Act, and was therefore time-barred.   In the
alternative and without prejudice the client claimed estoppel, in essence to the effect
that the advocate had raised a fee note upon conclusion of each matter in which he
acted for the client, and the client paid the same. It was argued that the advocate was
therefore estopped from claiming additional fees.
The court allowed the application and held as follows:
[On lack of jurisdiction by a taxing officer to rule on limitation]
“17. The main issues raised in the notice of motion dated 20 February 2012 were
challenging the Taxing Officer’s jurisdiction to tax the bill of costs before him.
Those issues were whether the Advocate’s bill of costs was statute-barred under the
Limitation of Actions Act and whether the Advocate was estopped from claiming any
further costs. Did the Taxing Officer have jurisdiction to deal with those issues?
18. Those issues were raising one fundamental issue, to wit, whether there were any costs
due to the Advocate that the Taxing Officer could tax? I hold that it was an issue that
could only be determined by a Judge. It is the kind of issue that the Taxing Officer,
with the consent of both parties, should have referred to the opinion of the High
Court.
19. Only after determination of that fundamental issue by the High Court, that is,
whether or not there were any costs due to the Advocate that could be taxed, would
the bill of costs be referred back to the Taxing Officer for taxation, if it is found that
there were costs that were due to the Advocate.
20. I therefore hold that even the Taxing Officer of the Court did not have jurisdiction
to hear and determine the main prayers of the notice of motion dated 20 February
2012.
21. As there was no taxation, there was nothing to challenge under paragraph 11 of the
Advocates (Remuneration) Order. The decision challenged in the present application
was not a decision on taxation. The present application is thus incompetent.
22. The decision could also not be challenged by an appeal under Order 49, rule 7(2)
of the Rules as the Deputy Registrar’s decision was not a decision under the Orders
referred to in subrule (1) of rule 7. Perhaps the proper way to challenge the decision
ought to have been by way of an application for review under Order 45 of the Rules.
23. What is to be done now? Having held that the Deputy Registrar/Taxing Officer had
no jurisdiction to hear and determine the main issues raised in the notice of motion
dated 20 February 2012, his decision of 10 August 2012 must be set aside. It is hereby
set aside. And then what?
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392 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

24. I hold the view that the proper thing to do, in the interests of justice and expediency,
is to deal with the two issues raised in the notice of motion dated 20 February 2012,
as if the issues had been referred to the High Court to deal with, as they should have
been.
Was the advocate’s bill of costs time-barred under the Limitation of Actions
Act?
25. An advocate’s claim for costs would be based on the contract for professional services
between him and his client. It would be a claim founded on contract. An action
to recover such costs would be subject to the limitation period set out in section
4(1(a) of the Limitation of Actions Act. In this connection see also Halsbury’s Laws of
England, 4th Edition,Volume 28 at paragraph 879 (page 452) which states –
“879. Solicitor’s Costs. In relation to continuous work by a solicitor, such as the
bringing and prosecuting or defending an action;
1. if a solicitor sues for his costs in an action, the statute of limitation only begins
to run from the date of termination of the action or of the lawful ending of the
retainer of the solicitor;
2. if there is an appeal from the judgment in the action, time does not begin to run
against the solicitor, if he continues to act as such, until the appeal is decided;
3. if judgment has been given and there is no appeal, time runs from the judgment,
and subsequent items of costs incidental to the business of the action will not
take the earlier items out of the statute.
In respect of miscellaneous work done by a solicitor, time under statutory limitation
begins to run from the completion of the whole of each piece of work.
A solicitor cannot sue a client for costs until the expiration of one month after delivery
of a signed bill, but nevertheless time runs against a solicitor from the completion of
the work and not from the delivery of the bill. If only some of the items included in
the bill are statute-barred, the solicitor may recover in respect of the balance.”
26. The client’s case, with regard to the issue of limitation, is that apart from the deposit
paid up-front by the client as demanded by the advocate on taking instruction in each
matter, upon completion of the work in any such matter the advocate presented to
the client a fee note that was settled; that it was not until eight (8) to eleven (11) years
later that the Advocate presented the bills of costs in question; and that therefore the
bills are caught by limitation.
27. The Advocate’s answer has been that the various fee notes were never presented
as final fee notes, and further, that the Limitation of Actions Act does not apply to
advocates’ costs.
28. As already seen, any claim or action for an advocate’s costs is subject to the statute of
limitation. As already seen also, time begins to run from the date of completion of the
work or lawful cessation of the retainer. Time does not begin to run from the date
of delivery of the bill! Section 48(1) of the Advocates Act therefore cannot offer any
defence against limitation.
29. As to whether an advocate/client bill of costs is an action to recover costs, it clearly is.
It will be remembered that upon a certificate of taxation being issued, all an advocate
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Principles of Taxation: Procedures and Law 393

need do is apply for judgment under section 51(2) of the Advocates Act. In any case,
why should parties go through taxation of a bill of costs if the costs thereby taxed
cannot be recovered on account of the statute of limitation?
30. I therefore hold that any of the various bills of costs filed by the Advocate more than
six (6) years after completion of the work which he was retained by the Client to
do, or after the lawful termination of the retainer in respect of such work, is statute-
barred by virtue of section 4(1)(a) of the Limitation of Actions Act.
Would the Advocate in any event be estopped from now raising the bills of
costs?
31. In respect to estoppel, the Client’s case is that at the beginning of each matter in which
the Client instructed the Advocate, the Advocate raised an interim fee note of KShs
5,000/00 which the Client paid; that upon conclusion of each matter the Advocate
raised another fee note which the Client paid; that the Advocate never indicated that
this second fee note was another interim fee note, and the same could only have
been a final fee note; that the Client, believing that the issue of the Advocate’s costs
had been concluded, proceeded to close each concluded file and either sent it to the
archives elsewhere or destroyed it altogether; and that it would thus be unacceptable
and unfair for the Advocate to “turn around” after 8 to 11 years to present “final” fee
notes.
32. Even if the statute of limitation did not apply to the Advocate’s bills of costs (and
clearly it does!) the Advocate having presented what appeared to be a final fee note
upon completion of each brief, and the same having been paid by the Client who
then proceeded to archive or destroy its related files, the Advocate is estopped in law
and in equity from turning around, between 8 and 11 years later as the case may be,
to raise “final” bills of costs.”
In Kenya Orient Insurance Limited v Oraro and Company Advocates,379 Justice Gikonyo
adopted the ratio decidendi by Justice Waweru in the Abincha and Co Advocates v Trident
Insurance Co Ltd case.The issue of limitation was raised in by the respondent by way of
submissions and not by preliminary objection in opposing the bill of costs. The taxing
officer did not address the preliminary objection but proceeded to tax the bill of costs.
Justice Gikonyo addressed the following substantive issues as follows:
On raising a preliminary objection in submissions
“The applicant raised the issue of limitation of actions for determination by the court.The
respondent then addressed that issue in the written submissions but their argument took a
different flight; that the issue ought to have been raised by way of affidavit or preliminary
objection. On my part, I do not think that is entirely correct especially given that no other
pleadings were filed by or agreed to be filed between the parties. The submissions by
each party constituted the issues for determination by the court; framed the issues for the
court’s determination. That aside; even in a case where parties have adduced evidence or
submitted on an un-pleaded issue, the law says that the issue has been left for the decision
of the court. I find support in the case of Herman P. Steyn Charles Thys, Civil Appeal No 86
of 1996, where the Court of Appeal quoted with approval a statement in the case of Odd
Jobs v Mubia [1979] E.A 476 that:-

379 [2014] eKLR

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394 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

A court may base its decision on an un-pleaded issue if it appears from the course followed
at the trial the issue has been left to the court for decision. On the facts the issue had been
left for decision by the court as the advocate for the appellant led evidence and addressed
the court on it.
[18] By the above judicial authorities, and the fact that the parties placed the issues for
determination by the court through written submissions, I am sanctified to hold that
the issue of limitation of action was properly placed before the taxing officer. I am not
persuaded by the argument by the respondent that the issue was not properly raised
before the taxing officer because there was no replying affidavit or a preliminary
objection that had been filed by the applicant. I should even state that, I belong to
the school of thought, which takes the view, and I believe is the position of the law,
that the question of limitation of actions is both a matter of law and fact and cannot
be determined in limine or as a preliminary objection. Parties must be heard; evidence
must be adduced; the court has to evaluate the entire circumstances of the case and
make a decision. It is a matter for the trial. That rendition catapults the court to the
second issue below.
On limitation of a bill of costs
[20] The ratio decidendi in and the thinking by Waweru, J, in the above case is quite
subtle and I am persuaded to adopt it. Consequently, I hold that a taxing officer in
such matter as a taxing officer does not have jurisdiction to determine the issue of
limitation of the bill of costs. I am delighted she did not determine it. However, the
taxing officer committed two fatal judicial errors: 1) proceeding with the taxation;
and 2) failing to refer the issue of whether or not the bill of costs was time barred, to
the High Court for determination. And although, as a general rule, the court should
not interfere with taxing officer’s decision, it would, however, disturb the taxation on
the basis of the error in principle committed by the taxing officer. Due to the error
in principle committed herein, I set aside the taxation. That penultimate order leaves
me with the ultimate question below:
Is the bill time-barred?
[21] Much have been submitted on this item, but they relate more to what the law
provides about client-advocate relationship being contractual and, therefore, subject
to the Limitation of Actions Act; and when time starts to run in various instances
where an advocate seeks to recover his costs. But little information or evidence was
provided as to exactly what the circumstances of this case are in relation to when
the relationship was terminated or the engagement ended or cases on which the
brief emanated ended and so on. These are matters which will enable the court
to apply the prescriptions of the limitation period set out in section 4(1)(a) of the
Limitation of Actions Act and also in Halsbury’s Laws of England, 4th Edition,Volume
28 at paragraph 879(page 452) which states –
“879. Solicitor’s Costs. In relation to continuous work by a solicitor, such as the
bringing and prosecuting or defending an action;
1. if a solicitor sues for his costs in an action, the statute of limitation only begins
to run from the date of termination of the action or of the lawful ending of the
retainer of the solicitor;
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Principles of Taxation: Procedures and Law 395

2. if there is an appeal from the judgment in the action, time does not begin to run
against the solicitor, if he continues to act as such, until the appeal is decided;
3. if judgment has been given and there is no appeal, time runs from the judgment,
and subsequent items of costs incidental to the business of the action will not
take the earlier items out of the statute.
In respect of miscellaneous work done by a solicitor, time under statutory
limitation begins to run from the completion of the whole of each piece of
work.
A solicitor cannot sue a client for costs until the expiration of one month after
delivery of a signed bill, but nevertheless time runs against a solicitor from the
completion of the work and not from the delivery of the bill. If only some of
the items included in the bill are statute-barred, the solicitor may recover in
respect of the balance.”
[22] Accordingly, to enable the court to resolve the issue of limitation of this action,
effectually and completely, I will ask the parties to appear before me on a convenient
date agreed or appointed by the court, to address the court on the question of whether
the bill is time-barred. The manner in which the evidence or information should be
tendered will be agreed or as directed by the court. It is so ordered.”

6.27.1 Tips
(a) Any advocate raising the objection of limitation, in the event that the opposing
counsel declines to concede to referring the matter to the High Ccourt under rule
12, should simply proceed to prepare the reference under rule 12 on the basis of the
case stated.
(b) The taxing officer may fall back on rule 12 of the Advocates Remuneration Order
and refer the matter to the High Court for determination. The Rule reads:
12. Reference by consent
With the consent of both parties, the taxing officer may refer any matter in
dispute arising out of the taxation of a bill for the opinion of the High Court.
The procedure for such reference shall follow that of a case stated but shall be to
a judge in chambers.
(c) A taxing officer has no jurisdiction to deal with issues of limitation when raised in
opposition of a bill of costs as the entire exercise would be a nullity. The power of a
taxing officer is limited by rule 13A that reads:
13A. Powers of taxing officer
For the purpose of any proceeding before him, the taxing officer shall have
power and authority to summon and examine witnesses, to administer oaths, to
direct the production of books, paper and documents and to direct and adopt all
such other proceedings as may be necessary for the determination of any matter
in dispute before him.
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396 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

6.28 Do not File a Reference when a Bill of Costs is Pending

Taxation
If an advocate commences a miscellaneous civil suit in the High Court submitting
his itemized advocate/client bill of costs for taxation and the taxation has a hearing
date, do not apply to stay the taxation and for striking out the same. This would be
premature as the court’s jurisdiction under rule 11 of the Advocates Remuneration
Order is crystallized after a decision is rendered by the taxing officer.
The Court of Appeal in the case of Sharma v Uhuru Highway Development
Ltd allowed an appeal where it held that the proceedings before the High Court
380

Judge were a nullity as the matter had already been fixed for taxation before the
Deputy Registrar and there were no grounds conferring jurisdiction on the Judge
to hear the matter and no steps had been taken to divest the Deputy Registrar of his
jurisdiction.

Facts
The appellant herein was at one time the advocate for the respondent. In December
1997, the appellant sent a letter to the respondent enclosing a fee note for some KShs.
500 million and demanding payment within 30 days. Upon the respondent’s failure
to comply, he filed his bill of costs in a miscellaneous civil case in the High Court
and sought taxation thereof under paragraph 13(3) of the Advocates (Remuneration)
Order. In October 1999, the respondent filed an application seeking to strike out
the miscellaneous case. The application was fixed for hearing on 13 October 1999,
a date that had already been set aside for taxation before the Deputy Registrar. The
respondent’s application was based on the ground that the case was improperly before
the court as no plaint had been filed in compliance with the mandatory provisions of
the Advocates Act (Chapter 16). The Judge upheld the application and struck out the
case as having been brought prematurely.
The appellant appealed primarily on the ground that sections 48 and 49 of the
Advocates Act did not apply and that the case was correctly brought under rule 13 of
the Advocates (Remuneration) Order.
Held – The proceedings before the High Court Judge were a nullity as the matter
had already been fixed for taxation before the Deputy Registrar and there were no
grounds conferring jurisdiction on the Judge to hear the matter and no steps had been
taken to divest the Deputy Registrar of his jurisdiction.
Rule 13(3) of the Advocates (Remuneration) Order deals with the subject of
taxation of costs whereas section 48 of the Advocates Act is concerned with the
recovery of costs, and the appellant, having decided to approach the matter by way of
rule 13, had no obligation to comply with section 48.
Paragraph 13(3) not being in conflict with sections 48 and 49 of the Advocates
Act, and section 48 not forbidding the taxation of costs before any action for the
recovery of those costs, the superior court had erred in striking out the appellant’s
miscellaneous case.

380 [2001] 2 EA 530 (CAK)

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Principles of Taxation: Procedures and Law 397

6.29 Conclusion
One can apply the dicta of Justice Visram (as he then was) in the case of Commissioner
of Income Tax v Westmont Power (K) Ltd.381 Although this case dealt with taxation law its
spirit is true to the present scenario pertaining to Schedule 11.The judge quoted from
the case of Inland Revenue v Scottish Central Company.382
“Even though the taxation was acceptable and even essential in democratic societies,
taxation laws that have the effect of depriving citizens of their property by imposing
pecuniary burdens resulting also in penal consequences must be interpreted with great
caution. It is paramount that their provisions must be express and clear so as to leave
no room for ambiguity and any ambiguity in such law must be resolved in favour of
the taxpayer, and not the Public Revenue Authorities which are responsible for their
implementation.”
Taxation is the final reward to an advocate for his professional professional services.

381 [2006] 1 EA 54 (CAK)

382 [1931] 15 TC 761
 Chapter 7

When the Criminal Process is Abused

7.1 Introduction
In 1690 the English philosopher John Locke posited that the fundamental constitutional
principle is that the individual can do anything but that which is forbidden by law,
while the state may do nothing but that which is authorised by law.
However, in Kenya, public officers do the exact opposite and have engaged
in burdening Kenyans with illegal fines emanating from defective charge sheets.
They institute criminal prosecutions that are oppressive and an abuse of the court
process. While all that happens the Magistrate mechanically takes the pleas without
interrogating the validity of the charge sheet and the bewildered citizen is put through
the conveyor belt of criminal injustice - charged, convicted and fined.
It is unconstitutional for a person to be charged under the general penalty section
of an Act when the offence is committed under the concerned By-Laws or Subsidiary
Legislation which prescribe the maximum penalties.
I first experienced this injustice when I appeared in a criminal matter at the City
Court where my firm’s client, Kengeles Holdings Limited, had been charged with a
criminal offence. I had examined the charge sheet and noted a serious discrepancy
as regards the penalty. However, what I noted was that neither the advocates nor the
magistrate bothered to interrogate similar/identical charge sheets were duplex. Both
the bar and the bench fell into the trap of complacency by assuming that the charge
sheets were the gospel truth. The result over the years is that citizens have unwittingly
paid the price by paying illegally imposed fines.
This chapter will demonstrate the effect of duplex charge sheets and instances
where tenants are wrongfully evicted when the landlord colludes with public health
officers and pleads guilty to public health criminal charges and with the devious aim
of evicting the tenants.
It is a sad reality in this day and age that citizens’ constitutional rights are constantly
trampled upon by the criminal justice system. The biggest culprit is the application of
duplex charge sheets by the prosecution who:
• Create non-existent offences; or
• Provide for penalties greater that the maximum provided by the law with the potential
exposure of a party facing a penalty 500 times in excess of the correctly defined
penalty.
Whenever an objection is raised by to the duplicity nature of the charge, the prosecution
indignantly refuses to amend the charge sheet. The result:
• The cancer of corruption spreads when a person is threatened by a fictitious penalty
for a minor offence and is thus coerced or induced to bribe so as to avoid the
inconvenience of going to court when the penalty is exaggerated.
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400 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

• The courts impose illegal fines that deprive a citizen of the right to property and
liberty. In practice, it is usually the poor person eking out a living who is arrested and
fined tens of thousands of shillings when in reality the offence may only attract a fine
of KShs. 500. This unfortunately leads to congestion of our prisons and takes away a
breadwinner from the family.
• The state potentially faces the monumental headache of refunding illegally imposed
fines.

7.2 Right to A Fair Trial and Due Process

Article 50 of the Constitution expressly provides, inter alia, that a person enjoys the
benefit of the less severe penalty. The relevant portions read:
“50. Fair hearing (1) Every person has the right to have any dispute that can be resolved
by the application of law decided in a fair and public hearing before a court or, if
appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—
(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(n) not be convicted for an act or omission that at the time it was committed or
omitted was not-
(i) an offence in Kenya; or
(ii) a crime under international law.
(p) to the benefit of the least severe of the prescribed punishments for an offence,
if the prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing; and…’’

Interpretation and General Provisions Act

The Act specifically addresses the issue of maximum penalties at section 66.
66.(1) Where in a written law a penalty is prescribed for an offence under that written
law, that provision shall, unless a contrary intention appears, mean that the
offence shall be punishable by a penalty not exceeding the penalty prescribed.
(2) Where in any written law more than one penalty is prescribed for an offence,
the use of the word “and” shall, unless a contrary intention appears, mean that the
penalties may be inflicted alternatively or cumulatively.

7.3 Case Study 1: Duplex Charge Sheets Defined - The Case of

Kengeles Holdings Ltd v Republic383
Justice Ojwang (as he then was) delivered an epic ruling on duplex charges. In this
case, the City Council of Nairobi had a charge whose offence was strictly under the
subsidiary legislation under section 14 (e) of the City Council’s Foods, Drugs and
Chemical Substances (General) Regulations, which regulations prescribe a penalty of

383 [2009] EKLR

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When the Criminal Process is Abused 401

KShs. 2,000 attracting a penalty of KShs. 2,000 but the charge was framed to attract
the general penalty of up to KShs. 500,000. The City Council had produced standard
charge-sheets that were indifferent to the distinction in the levels of penalty between
section 14(e) of the Regulations and section 36 of the Act-effect of
“Counsel submitted that section 77(4) of the Constitution accorded the applicant
protection against retroactive penalties; but that the said duplicity in the charge, would
subject the applicant to punishment created by provisions coming subsequent to the
alleged commission of the offence. The duplex form of the charge-sheet, counsel urged,
would subject the applicant to a penalty that was not defined in written law, contrary to
section 77(8) of the Constitution; and in the present form, a plea of guilty could lead to a
fine of KShs. 500,000.
Learned Counsel called in aid past judicial decisions. In Kasyoka v Republic [2003] KLR
406 the High Court (Mbaluto, J.) had thus held (page 406)
“Considering the nature of the offence with which the appellant was charged, what the
learned Magistrate stated was not sufficient to identity which offence the appellant had
been convicted of.
“The appellant was convicted on a duplex charge and no one can state for sure which
of the two offences he had committed. Such conviction should not be allowed to stand”.
Learned respondent’s counsel Mrs. Gakobo conceded that the charges in question were
marked by duplicity and so, could not stand. She urged that the offences in question were
punishable under regulation 17 of the Food, Drugs and Chemical Substances Regulations;
and so a charge could not at the same time be brought under section 36 of the Act which
provided for higher penalties; and there was thus, duplicity in the charges which would
prejudice the applicant.
It is clear that the manner in which the charges have been framed, invited the application
of different penalties, of profoundly differing gravity; and thus there is a duplicity in the
charges. Charges of such a kind will inevitably limit the scope for defense, and in this way,
they stand in contradiction to the applicable provisions of the Constitution – notably those
set out in section 77.
This Court intervenes by quashing the charge and the proceedings so far conducted by
the trial Court. It is directed that the charge-sheets shall be amended to remove the scope
for duplicity in the penalties, in the manner indicated in this ruling; and any further trial
proceedings shall proceed on that basis.’’
The Court of Appeal in the case of Cherere s/o Gukuli v Republic384 addressed the
instance of an accused who did not know what offence he was charged with. The
Court of Appeal held:
‘It is, indeed, very difficult to say that a breach of an elementary principle of criminal
procedure has not occasioned a failure of justice.’

384 (1955) 22 EACA 478

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402 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

7.4 Case Study 2: The Food, Drugs and Chemical Substances Act-
Republic v Fairview Hotel385
The Food, Drugs and Chemical Substances Act is constantly used by the County
Public Health Officers who make it a habit of visiting premises and ignoring the true
spirit and intent of the Act.
This is an interesting case where the hotel had been charged with various
purported offences under the Food, Drugs and Chemical Substances Act-Chapter
254 of the Laws of Kenya.
On 4 August 2009 the Public Health Officers visited the applicant’s premises and
inspected the following articles:
• Tin of imported peeled tomatoes which was slightly dented. (This was purchased in
this condition and no test was carried out to open the tin to establish if the contents
were damaged. The tin was not leaking or rusty).
• 6 packets of pasta which they alleged had no storage instructions. (The packets clearly
had storage instructions that said that once opened the contents were to be stored in
a cool dry place).
• 29 tins of crab meat which they alleged had no storage instructions. (They failed to
note that the tin contained crab meat, water, salt, citric acid and sodium glutamate
which preserved the contents at room temperature for years).
• 8 tins of olives which they alleged had no storage instructions. (They failed to read
the storage instructions that read that once opened the contents were to be stored in
a cool place).
• 20 packets of samosas which they alleged had not labels. (They failed to note that the
contents had been purchased in bulk).
• Fresh mango juice which they alleged had no label. (They failed to note that the
contents had been purchased in bulk).
• Fresh Passion juice which they alleged had not label. (They failed to note that the
contents had been purchased in bulk).
• Baguettes and 2 loaves which were kept in the freezer and had an expiry date of 27
July 2009.
The only items that had expired were the baguettes and loaves of bread that had been
kept in the freezer for recording of their disposal.
All the other items had storage instructions and had the Kenya Bureau of Standards
certification stickers.
The Public Health Officers issued a Seizure Notice on 4 August 2009 under the
Food, Drugs and Chemical Substances Act, Chapter 254 of the Laws of Kenya.
On 6 August 2009, the Hotel’s advocate personally delivered a letter to the Public
Health Officer and specifically requested the officers to issue appropriate orders for
disposal in accordance with section 30(7) of the Food, Drugs and Chemical Substances
Act.

385 [2011] eKLR

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When the Criminal Process is Abused 403

Despite the request made under section 30(7) of the Act the 1st respondent made
no effort or attempt to issue any disposal orders but instead maliciously proceeded to
institute criminal proceedings on the same 6 August 2009 despite the request made on
6 August 2009 and served the summons on 7 October 2009.This was about 2 months
after the letter of 6 August 2009 and the date when the Charge Sheets were drawn.
The power to seize is under section 30 of the Food, Drugs and Chemical
Substances Act, Chapter 254, which reads as follows:
30.(1) An authorized officer may, at any hour reasonable for the proper performance of
his duty -
(e) seize and detain for such time as may be necessary any article by means of or
in relation to which he believes any provision of this Act or any regulations
made thereunder has been contravened.
(2) An authorized officer acting under this section shall, if so required, produce his
authority.
(6) An authorized officer shall release any article seized by him under this Act when he
is satisfied that all the provisions of this Act and any regulations made thereunder
with respect thereto have been complied with.
(7) Where an authorized officer has seized an article under this Act and the owner
thereof or the person in whose possession the article was at the time of seizure
consents to the destruction thereof, the article may be destroyed or otherwise
disposed of as the authorized officer may direct.
(10) Any article seized under this Act may at the option of an authorized officer be
kept or stored in the premises where it was seized or may at the direction of an
authorized officer be removed to any other proper place; and any person who
removes, alters or interferes in any way with articles seized under this Act without
the authority of an authorized officer shall be guilty of an offence.

Charges brought under wrong sections of the Act rather than the regulations
The applicant was charged under section 4 and penalized under section 36(1) of the
Food, Drugs and Chemical Substances Act, Chapter 254 which read:
4. Any person who labels, packages, treats, processes, sells or advertises any food in
contravention of any regulations made under this Act, or in a manner that is false,
misleading or deceptive as regards its character, nature, value, substance, quality,
composition, merit or safety, shall be guilty of an offence.
36.(1) A person who is guilty of an offence under this Act for which no special penalty
is provided shall be liable -
(a) in the case of a first offence, to a fine not exceeding five hundred thousand
shillings or to imprisonment for a term not exceeding two years, or to both
such fine and imprisonment;
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404 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

(b) in the case of a subsequent offence, to a fine not exceeding seven hundred
thousand shillings or to imprisonment for a term not exceeding five years, or
to both such fine and imprisonment.
(2) In any prosecution under this Act the summons shall state the particulars of the
offence or offences alleged and also the name of the prosecutor and shall not be
made returnable in less than fourteen days from the date on which it is served.

Count 2
The charge relates to a ‘dented tin’ and was purportedly grounded on sections 6 and
36(1) of the Food, Drugs and Chemical Substances Act, Chapter 254.
6. Any person who sells to the prejudice of the purchaser any food which is not of the
nature, or is not of the substance, or is not of the quality, of the article demanded by
the purchaser shall be guilty of an offence.
Question: Was this really an offence under the above section to sell food under a
dented tin?
Was any analysis carried out to establish if the food was fit for human
consumption?

Offences should be under subsidiary legislation

The counts in the charge sheet attracted penalties under regulation 319 of the
Food, Drugs and Chemical Substances (Food Labelling, Additives and Standards)
Regulations and other regulations which prescribe a maximum fine of KShs 2,000
or to imprisonment for a term not exceeding three months or to both such fine and
imprisonment. These regulations comprehensively deal with various standards and
packaging for different kinds of foods and chemicals. None of the counts were brought
under the regulations. The penalty clause of Food, Drugs and Chemical Substances
(Food Labelling, Additives and Standards) Regulations and other regulations reads:
319. Offences and Penalties
Any person who contravenes the provisions of these Regulations shall be guilty of an
offence and liable—
(a) in the case of a first offence, to a fine not exceeding two thousand shillings or to
imprisonment for a term not exceeding three months or to both such fine and
imprisonment; and
(b) in the case of a second or subsequent offence, to a fine not exceeding four
thousand shillings or to imprisonment for a term not exceeding six months, or
to both such fine and imprisonment.

The Standards Act, Chapter 496 of the Laws of Kenya

All the seized tin food had the KEBS certification mark showing the goods had
complied with Kenya Standards. What business does an officer have to challenge
goods that have already passed the quality control by our experts mandated by the
Standards Act?
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When the Criminal Process is Abused 405

The tests for standards carried out are made under the Standardization Marks
(Permits and Fees) Regulations. The relevant sections are set out below.

Regulations under section 20

The Standardization Marks (Permits and Fees) Regulations
1. These Regulations may be cited as the Standardization Marks
(Permits and Fees) Regulations.

Citation.
Interpretation. 2. In these Regulations -
“inspection” includes the process of examination and conducting
of relevant tests by the Bureau to determine the conformity of any
commodity with a Kenya Standard or approved specification;
“permit-holder” means a person who has been granted a permit
to use a standardization mark under the Act or under these
Regulations.
Application for 3. Applications for the issue or renewal of a permit shall be in Form
permits. STA/1 in the Schedule.
Permits. 4. A permit issued by the Bureau shall be in Form STA/2 in the
Schedule and shall be issued subject to the conditions set out
therein.
Use of permits. 5. After a permit has been issued by the Bureau or a person acting
under its authority, the standardization mark in respect of which a
permit has been issued shall be applied by the permit-holder to all
commodities which comply with the requirements set out in the
applicable Kenya Standard or approved specification.
Tests and 6. (1) Before issuing a permit to any applicant, the Bureau may
inspections. carry out such tests and inspect any commodity for the purposes
of ascertaining whether the commodity complies with the
requirements set out in the applicable Kenya Standard or approved
specification.
(2) The Bureau may carry out such periodic tests and inspections
as it may deem necessary in order to ascertain whether a permit-
holder is complying with the general scheme of supervision and
control laid down by the Bureau for every commodity or class of
commodities.
Samples and 7. (1) Where a person has been requested, in writing by the Director
information. to furnish samples of any commodity or information in regard to
its manufacture, production, processing or treatment, he shall do so
within such period as may be specified in the request.
(2) Any person who fails to comply with a request made under
this egulation shall be guilty of an offence and liable to a fine not
exceeding six thousand shillings or to imprisonment for a term
not exceeding six months, or to both such fine and imprisonment.
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406 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Fees. 8. (1) An applicant for the issue of a permit shall pay, at the time
of filling the application, a fee of one hundred shillings for each
application made by him.
(2) A permit-holder shall pay an annual fee of fifty shillings in
respect of each permit granted to him or renewed
(3) A permit-holder shall pay a marking fee proportionate to the
quantum of the annual production of the commodity in respect
of which the permit has been granted; but the Bureau may at any
time vary or change the marking fee payable in respect of any
commodity.
9. (1) Every permit-holder shall be assigned an identification
number by the Bureau, which number shall, for the purposes
of identifying the permit-holder, appear on all commodities on
which standardization mark has been applied.
(2) In addition to the standardization mark, all commodities which
the permit-holder produces or manufactures shall carry such other
marks as the Bureau may from time to time determine.
(3) All the markings on any commodity shall be applied in the
manner specified by the Bureau.

Analysis:

Enforcement Notice was Ultra Vires the Act and Unconstitutional

The action of instituting criminal charges was a device used to illegally collect revenue
by bringing charges under inapplicable offences and going for the maximum fine
under section 36(1) of the Food, Drugs and Chemical Substances Act.

Was the Charge Sheet Unconstitutional?

The repealed Constitution provided at section 77(2)(b) that an accused person shall be
informed as soon as reasonably practicable, in a language that he understands and in
detail, of the nature of the offence with which he is charged. The other sections read:
• Section 77(4) - No person shall be held to be guilty of a criminal offence on account
of an act or omission that did not, at the time it took place, constitute such an offence,
and no penalty shall be imposed for a criminal offence that is severer in degree or
description than the maximum penalty that might have been imposed for that offence
at the time when it was committed.
• Section 77(8) - No person shall be tried for a criminal offence unless that offence is
defined and the penalty thereof is prescribed in a written law.
The judicial review application succeeded and Justice Ochieng held as follows:
“Regulation 319 provides that any person who contravenes the provisions of the regulations
shall be guilty of an offence. The said regulation stipulates the sentences attached to the
infringement of any such regulations.
In so far as the substance of the offences allegedly committed by the applicant is spelt out
under the regulations; which regulations stipulate the applicable penalties, l find and hold
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When the Criminal Process is Abused 407

that it is irregular to draw up charges purporting to found the same under the substantive
provisions of the Act.
Section 36 of the Act only comes into play when no special penalty is provided for in
respect of specific offences. To that extent I find that the decision by the respondent to
draw up the charges in the manner it has done, offends the spirit of the law. I direct that
the said charges be withdrawn forthwith, and that they be reframed in accordance with
the provisions of section 137 of the Criminal Procedure Code.’’

TIP 1: Always Check the Subsidiary Legislation of any Act that Defines the
Offences and Penalties

When one looks at all the regulations to the Foods, Drugs and Chemical Substances
Act, all the regulations would set out the prescribed penalty. For instance:

Food, Drugs and Chemical Substances Regulation 17(a): First Offence: Fine=Not
(Food Hygiene) Regulations. exceeding KShs 2,000 or not exceeding 3
months’ imprisonment.

17(b): Second Offence: Fine= Not

exceeding KShs 4,000 or not exceeding 6
months’ imprisonment.

TIP 2: Use the Provisions of Section 30(7) of the Foods, Drugs and Chemical
Substances Act that Allows you to Consent to the Destruction of the
Article

7.5 Case Study 3: Criminal Process being used in A Coercive

Manner to Collect Revenue- Republic v Nairobi City Council
and others ex-parte Barclays Bank of Kenya Limited386

In this case the bank was charged with failing to pay advertisement revenue when
in fact it had contracted an independent party to pay the City Council the requisite
licenses for advertisement. The court held as follows:
“The bank argues that failure to pay advertisement revenue is not defined in the Act as
an offence, but that it only appears as so in the Local Government (Adaptive By-laws)
(Building) Order 1968, yet the charge sheet refers to the offence allegedly committed
under the Act. A perusal of the charge sheet reveals that the charge is duplex, for the
simple reason if found guilty, the bank stands to suffer a multiplicity of penalties, which
thus renders it defective for the law requires that there be clarity and that an accused
person be certain of the consequences of what crime he is alleged to have committed.
I agree with the finding in the case of Kengeles Holdings Ltd v Republic, Criminal Revision
No. 36 of 2008, where Ojwang, J. held that “the manner in which the charges have been
framed, invites the application of different penalties, of profoundly differing gravity and
thus there is duplicity in the charges. Charges of such a kind will inevitably limit the scope
for defence, and in this way, they stand in contradiction to the applicable provisions of the

386 [2011] eKLR

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408 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Constitution notably those set out in section 77. The court intervenes by quashing the
charge and the proceedings so far conducted by the trial court.” The same principle ought
to apply in this matter.
All in all, and in addition to the above findings I also find that the bank was not furnished
with a notice as required, nor was it accorded an audience before the charges were
preferred, which omission obviously means that it was condemned unheard, contrary to
the principles of natural justice which dictate that no man shall be condemned unheard.
In view of the above, I am convinced that the Council is simply using the criminal
process as a means of intimidating the bank to pay for advertisement revenue, which
situation cannot be sustained for “it is not the purpose of a criminal investigation or a
criminal charge or prosecution to help individuals on the advancement or frustration
of their civil cases. That is an abuse of the process of the court. No matter how serious
the criminal charges may be, they should not be allowed to stand if their predominant
purpose is to further some ulterior purpose. The Interested Party in this matter was more
actuated by desire to punish the applicant or to oppress him into acceding to his demand
by brandishing the sword of punishment under criminal law, than in any genuine desire
to punish crime on behalf of public. The predominant purpose was to further the ulterior
motive which the High Court could not allow” (R v Chief Magistrates Court Mombasa Ex-
Parte Ganijee & another [2002] 2 KLR 703).
The rules of natural justice are fundamental and are a cushion to ensure that public bodies
do not take decisions at their whims to the detriment of those affected.’’

7.6 Case Study 4: Public Health Act - Non - Disclosure of

Offence or Non-Existent Offence - Barclays Bank of Kenya v
City Council of Nairobi387
Failing to repaint a premise does not constitute an offence.
At about this time in 2005 the Council went on the rampage and charged hundreds
of citizens in court for failing to paint their premises. They would issue enforcement
notices and wait for months to come and then charge the person. All this time the
daily penalty of KShs 1,500 would accumulate such that by the time the matter was
concluded, the fines were either in the hundreds of thousands or millions of shillings.

Facts of the case

Officers from the Council visited the applicant’s premises and issued the bank with
a notice dated 20 January 2005 requiring the applicant to repair its premises both
internally and externally within 21 days of the day of the notice. Upon receipt of
the notice, the bank on 21 January 2005, wrote to the Council indicating that they
had recently renovated and painted the building in 2004 and requested for a joint
inspection of the premises with the respondent so that the respondent could pinpoint
the areas that needed painting but the Council did not respond.
On 27 July 2005 the bank was served with a charge sheet and Summons requiring
the manager of the bank to appear in court to answer charges of failing to repaint

387 [2005] eKLR

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When the Criminal Process is Abused 409

a building. After pleading not guilty the accused was released on cash bail of KShs
90,000. I represented the bank when I advised that we file a judicial review application.
Justice Wendo allowed our judicial review application and held as follows:
“The particulars of the charge are that the applicant failed to repaint the premises operating
as a bank both internally and externally. Section 115 which prohibits nuisances provides
as follows
“No person shall cause a nuisance or shall suffer to exist on any land or premises
owned or occupied by him or of which he is in charge any nuisance or other
condition liable to be injurious or dangerous to health.”
Section 118 of the same Act sets out what constitutes a nuisance.
Section 118(l) and (s) under which the applicant is charged provide as follows:
(1) Any public or other building which is so situated, constructed, used or kept as to be
unsafe, or injurious or dangerous to health
(2) Any act, omission or thing which is, or may be, dangerous to life or injurious to
health.
For the above offences to be proved, the following ingredients must exist, the premises have
to be unsafe; dangerous to health; dangerous to life or injurious to health. The offence the
applicant committed is failing to repaint the premises. Failing to repaint premises cannot
be unsafe, dangerous to health or to life or injurious to health. The charge as framed does
not disclose any offence. If there is an offence as failing to redecorate, maybe that would
have been the correct charge to prefer against the applicant. Besides there is not a shred of
evidence contained in Lucy Kamau’s affidavit showing the nature of the nuisance or what
injury or danger it posed to the public. The specific areas that needed repainting were
not pointed out. I therefore hold that the charge which the applicant faced was fatally
defective and the charge does not disclose any offence known under sections 115 and 118
of the Public Health Act.’’
The judge went ahead and admonished the Council for deliberately delaying the
prosecution so as to accumulate the fine. She held:
“S. 121 of the Public Health Act provides for payment of KShs. 1,500 for every day during
which the default continues. It means that the applicant would be condemned to pay
1,500/= to date from the date the notice lapsed sometime in early February 2005. No
reason has been given as to why the delay from February when the notice lapsed to July
when the complaint was filed. I am persuaded to believe that the delay in charging the
application is malicious and capricious and meant to get as much money as possible from
the applicant in the form of fine in the event of a conviction. I hold that the said decision
can be subject to Judicial Review.’’
The Council lost the appeal: City Council of Nairobi v Barclays Bank of Kenya Limited.388
On appeal from the decision of the High Court, the Court of Appeal dismissed
the appeal and upheld Justice Wendo’s judgment. The court agreed that failure to
repaint a premise was not a nuisance. It held, inter alia:

388 [2013] eKLR

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410 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

“In our re-evaluation and re-assessment of all facts in this matter, the brief determination
of this appeal is that we have perused all the sections 115 to 120, inclusive of the Public
Health Act as contended by the appellant. We are unable to find in any of them, and
specifically section 118, where nuisance is defined or that an act of failure to repaint a
building constitutes a nuisance, the same being injurious and dangerous to health. Neither
was there evidence of such laid before the learned Judge. Accordingly, she was not in error
in her finding that the charge sheet laid before the respondent did not disclose an offence
and so it was defective. It is trite law and a principle in criminal prosecutions that an
offence must be defined by law, setting out all its ingredients in order for a valid charge
to be laid. If the alleged offence does not conform to that then, if prosecuted, the trial
will result in an injustice to the accused. That seemed to have been the case here and the
learned Judge had to stop such a course of things by issuing an order of certiorari to quash
the charge sheet facing the respondent. Accordingly, this ground fails.’’
Justice Majanja in the case of Republic v Public Health Officer & 13 others ex-parte Giakki
Holdings Ltd389 also considered the case where the Public Health Officer gave notice
to tenants of a building to vacate the premises forthwith. The notice read:
Take Notice that under the building code provision of Public Health Act, Chapter 242
and regulations Kiambu/Kikuyu Trading Center Parcel No. 64 made thereunder you are
not allowed to occupy a building which poses any danger to human.
An inspection carried out revealed that the building you are occupying has lost stability
and has major cracks that are injurious to health.
You are therefore required to immediately vacate the premises.
Failure to comply with this notice will constitute an offence punishable by law.
For; District Health Officer, Kikuyu
On the same day, 21 November 2011, the Town Clerk of Kikuyu Town Council,
served on the applicant a demand/order under Part V of the Physical Planning Act
(Chapter 286 of the laws of Kenya) requiring the applicant to demolish its veranda
or canopy on the ground that it was allegedly built without authority of the Council.
The Notice required the applicant to demolish the canopy “immediately.”
The court quashed the notices the issued by the 1st and 3rd respondent and held
as follows on the illegality of the notices:
“12. The Notice that is impugned in view cannot stand scrutiny, first it is a general notice
referring to “building code provisions of the Public Health Act Chapter 424 and
regulations.” A proper notice should point specifically to the law which is invoked. I
have scoured the Act and have found no such provisions that require persons to vacate
a building for such general and inchoate violation that do not have foundation in law.
The Notice also contravenes the law as the Public Health Officer has no authority to
order tenants to vacate premises immediately.
13. Section 117 of the Act called in aid by the 1st respondent does not assist the 1st
respondent as it only permits the authority to take “lawful measures” and “to take
proceedings against any person causing or responsible for the continuance of any

389 [2014] eKLR

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When the Criminal Process is Abused 411

condition”. Requiring the tenants to immediately vacate the premises contravenes

the statute in this respect.
14. Under section 118(i) of the Act, a nuisance includes, “any public or other building
which is so suited, constructed, used or kept as to be unsafe, injurious or dangerous
to health”. The condition of the building, described by the 1st respondent, as being
unsafe for human habitation falls within the definition of a nuisance. The procedure
for removing or abating a nuisance is set out clearly in sections 119 and 120 of the Act.
15. Section 119 of the Act provides as follows:
The medical officer of health, if satisfied of the existence of a nuisance, shall serve a
notice on the author of the nuisance or, if he cannot be found, on the occupier or owner
of the dwelling or premises on which the nuisance arises or continues, requiring him to
remove it within the time specified in the notice, and to execute such work and do such things
as may be necessary for that purpose, and, if the medical officer of health thinks it desirable (but
not otherwise), specifying any work to be executed to prevent a recurrence of the said nuisance:
Provided that—
i. where the nuisance arises from any want or defect of a structural character, or
where the dwelling or premises are unoccupied, the notice shall be served on the
owner;
ii. where the author of the nuisance cannot be found and it is clear that the nuisance
does not arise or continue by the act or default or sufferance of the occupier or
owner of the dwelling or premises, the medical officer of health shall remove the
same and may do what is necessary to prevent the recurrence thereof. [emphasis
Mine]
16. The provisions are clear that the notice required to be served under section 119 to
the author of the nuisance is one that requires the person to remove the nuisance
within a time specified in the notice, to execute such work or to do such things as
the officer deems desirable specifying any work to be executed to prevent recurrence
of the nuisance. The notice which was issued on 21 November 2011, apart from the
deficiencies I outlined, does not comply with the provisions of section 119 of the Act.
17. In this case, I have found the notices wanting. These notices gave rise to the criminal
proceedings. The applicant and tenant were not given an opportunity to abate the
nuisance, if any. The Public Health Officer had no power to order eviction. I therefore
find and hold that this is a proper case for the grant of relief as the Notice issued to
the applicant’s tenant is ultra vires the Act and consequently the proceedings founded
on it are built on quick sand and must be quashed.
18. As regards the notice issued under the Physical Planning Act, the Town Clerk did
not contest these proceedings. In the absence of evidence to the contrary, I agree
that a notice to demolish a canopy immediately is unreasonable within the meaning
ascribed to the term in Associated Provincial Pictures v Wednesbury Corporation (1948) 1
KB, 223 where Lord Green, MR stated that, “Decisions of persons or bodies which
perform public duties or functions will be liable to be quashed or otherwise dealt
with by appropriate order in judicial review proceedings where the court concludes
that the decision is such that no person or body properly directing itself on the
relevant law and acting reasonably could have reached that decision.”
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412 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

7.7 Case Study 5: Non-Existent Offences Under Traffic Act

Sometime in 2015, my firm was instructed to defend a company whose pick-up had
been seized and the company was to be charged with the following offence:
“Charge
“Using an overweight vehicle with an extended height contrary to section 55(2) as read
with section 58(1) of the Traffic Act, Cap. 403 Laws of Kenya
Particulars:
Mr. AB on 30 March 2015 at round 1020 hours along Magadi road in Kajiado County,
being the driver of motor vehicle registration number KXX 159J Make Tata van did
use the said vehicle on a public road which extended the maximum weight and height
(dimension)as per the motor vehicle inspection report VTA No. 12345.’’
The problem was that the penalty was colossal and pleading guilty was going to
expose the company to having its entire fleet or pick-ups grounded. The main issue
was that the charge did not prescribe with precision what provision of the law had
been breached as no prescribed standards setting out the prescribed dimensions or
weight had been disclosed.
Section 55(2) of the Traffic Act, Cap. 403 reads as follows:
“No motor vehicle the weight or dimensions of which laden or unladen exceeds the
maximum weight or dimensions provided for such vehicles by rules made under this Act
shall be used on a road.”
Section 58(1) of the Act provides:
“Any person who drives or uses on a road a vehicle in contravention of the provisions of
section 55 or section 56 shall be guilty of an offence and liable to a fine not exceeding four
hundred thousand or to imprisonment not exceeding two years or to both:
Provided that rules under this Act may provide that a person who is guilty of an offence
under section 55 or 56 shall be liable to pay a fine according to a prescribed scale, and
different scales may be prescribed for first offenders, and for second or subsequent
offenders, within a prescribed period, but so that no person shall thereby be liable to pay
a fine greater than the maximum provided by this subsection; and for the avoidance of
doubt it is declared that liability of a person to pay a fine on a prescribed scale shall not
affect that person’s liability to imprisonment under this subsection as an alternative to, in
addition to, or in default of, the payment of a fine.’’
I raised an objection to the charge. The court agreed that the charge sheet was duplex
and proceeded to strike out the entire charge as there was no offence prescribed in
law that had been breached. The accused driver left a happy man as he had not even
taken the plea.
In the case of Uganda v Keneri Opidi390 where the charge sheet cited a non-existent
sub-section of the Traffic Ordinance, the court held (see page 5 holding ii):
“The error was a fundamental one of law in that the accused was charged with a non-
existent offence and was not curable by section 347 of the Criminal Procedure Code.’

390 [1965] E.A 614

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7.8 Case Study 6: to Speed or Not to Speed – What does the

Traffic Act Say?
Before we commence with the case study let us examine a recent development
concerning direction issued by the National Council on the Administration of Justice.
It issued Directions for Traffic Cases on 3 June 2015. These directions were signed by
the Chief Justice and the Inspector General. In a nutshell, some of the salient features
provide as follows:
1. In compliance with article 49(2) of the Constitution all suspected traffic offenders
in respect of offences punishable by a fine only or imprisonment for a term not
exceeding six months shall not be held in police custody.
In compliance with article 49(1) (h) of the Constitution all other suspected traffic
offenders shall be expeditiously released on reasonable bail or bond conditions
pending charge of trial, unless there are compelling reasons certified as such by a
Court Order.
Once a suspected traffic offender has been cited, he or she shall be issued with a
notification to attend court (NTAC) on a convenient date within seven (7) days or
Court Summons whichever is applicable as per the resolutions passed by the National
Council on the Administration of Justice.
The Notice shall state clearly the charges preferred and also indicate the maximum
penalty for each.
Another important part of the directions relates to the plea of guilty. Direction 8
provides that the traffic offender who opts to plead guilty in writing under section
117 of the Traffic Act, Chapter 403 shall remit to court (through the deposit account
provided by the Judiciary’s Directorate of Finance) the maximum amount payable for
the offence(s) cited.
Direction 10 states that the Court will take every measure to ensure that the
accused person is afforded the time, place and facilities to pay the imposed fine or cash
bail without being led to the court cells.

7.8.1 When the attendance of an Accused may be Dispensed with

Section 99 of the Criminal Procedure Act allows an advocate to take the pleas on
behalf of an accused.
The section reads:
99. Power to dispense with personal attendance of accused
(1) Subject to the following provisions of this section, whenever a magistrate issues a
summons in respect of an offence other than a felony, he may if he sees reason to do
so, and shall when the offence with which the accused is charged is punishable only
by fine, or only by fine or imprisonment not exceeding three months, or by fine
and such imprisonment, dispense with the personal attendance of the accused, if the
accused pleads guilty in writing or appears by an advocate.
(2) The magistrate trying a case may, at any subsequent stage of the proceedings, direct
the personal attendance of the accused, and, if necessary, enforce his attendance in the
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414 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

manner hereinafter provided, but no such warrant shall be issued unless a complaint
or charge has been made upon oath.
(3) If a magistrate imposes a fine on an accused person whose personal attendance has
been dispensed with under this section, and the fine is not paid within the time
prescribed for payment, the magistrate may forthwith issue a summons calling upon
the accused person to show cause why he should not be committed to prison for
such term as the magistrate may then specify; and if the accused person does not
attend upon the return of the summons the magistrate may forthwith issue a warrant
and commit the person to prison for such term as the magistrate may then fix.
(4) If, in any case in which under this section the attendance of an accused person
is dispensed with, previous convictions are alleged against that person and are not
admitted in writing or through that person’s advocate, the magistrate may adjourn
the proceedings and direct the personal attendance of the accused, and, if necessary,
enforce his attendance in the manner provided hereafter in this Part.
(5) Whenever the attendance of an accused person has been so dispensed with and his
attendance is subsequently required, the cost of any adjournment for that purpose
shall be borne in any event by the accused.
[Act No. 13 of 1982, First Sch.]
Recently, the writer was informed that an advocate, sometime in August/September
2015, who took the plea under section 99 of the Criminal Procedure Act on behalf
of a client, was locked up when he asked for time to go and collect the money to pay
the fine. This was illegal as the advocate was not the accused person but an officer of
the court and was in contravention of section 99(3) of the Act.
The Directions are a step in the right direction but are afflicted by a serious
appreciation of what penalties should be prescribed for various penalties. Ignorance
of the law as shown below will simply cause abuse of the law and trample on the
constitutional rights of an accused. It is high time that the Law Society of Kenya, the
Judiciary, the Director of Public Prosecutions and the Police sit down and review the
penalties for various traffic offences to avoid the case of duplex charge sheets.

7.8.2 Speed limits and the Penalties Imposed – the Great Deception Where
Illegal Fines are Imposed
Let us begin with the Traffic Act. Section 70(1A) of the Act provides for the setting
up of traffic signs prescribing the speed limits. In Nairobi, you must be vigilant not
to exceed the speed limit of 50 Kph lest you be arrested. The rule of the thumb in
convictions appears to be that for every extra kilometre you have surpassed the speed
limit the fine is KShs. 1,000 per kilometre. The same applies to the speed limit of 100
Kph on a single carriageway. On a dual carriageway, the speed limit is fixed at 110
Kph and yet the Thika Superhighway is replete with signs of 100 Kph.This restriction
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When the Criminal Process is Abused 415

was made under section 42(4) of the Traffic Act by either the Minister or a highway
authority.391
Let us now examine the current Traffic Act which stated the law as at 15 October
2015. The starting point is section 117 that defines Minor Traffic Offences. It reads:
117. Minor traffic offences
(1) The Minister may prescribe—
(a) a schedule of minor traffic offences (in this section referred to as “the
scheduled minor offences”) which may be dealt with and prosecuted in
accordance with the provisions of this section, and may for the purposes of
this section prescribe a statutory maximum penalty, which shall not exceed
the penalty prescribed for such offence by this Act, for any of the scheduled
minor offences to be so dealt with and prosecuted; and
(b) a form of police notification of a traffic offence for use under this section.
(2) Subject to this section, any statutory maximum penalty prescribed under
subsection (1) shall, notwithstanding that any other penalty may be prescribed
by this Act, have effect for offences dealt with under this section.
(3) Notwithstanding any provision contained in this or any other Act, it shall be
lawful for any police officer to serve, either personally or by affixing the same
prominently to the vehicle concerned, upon the owner or person in charge
of any motor vehicle who is reasonably suspected of having committed any of
the scheduled minor offences, a police notification of a traffic offence in the
prescribed form charging such person with having committed the offence or
offences indicated in the notification and requiring such person to attend court
to answer such charge or charges, at such time (which if the police notification
is served personally on the owner or person in charge of the motor vehicle, may
be within forty-eight hours of such service; or if the police notification is affixed
prominently to the vehicle concerned, shall not be sooner than seven days after
the date of such service) as is shown on such notification.
(4) Such notification as aforesaid shall for all purposes be regarded as a summons
issued under the Criminal Procedure Code (Chapter 75):
Provided that the person served with the notification shall not be obliged to
attend court in answer to the charge if he has pleaded guilty in writing and sent
the notification, together with the amount of the statutory maximum penalty or
penalties for the offence or offences to which he has pleaded guilty, by prepaid

391 Section 42 (4) reads:’’ Notwithstanding subsections (1) and (3), it shall be lawful for the Minister— (a) to
impose on any road such lower limit of speed as it considers necessary in circumstances when, by reason
of repairs, reconstruction or damage to the road or the condition of the road, any lower limit of speed is
necessary for the public safety or to prevent damage to the road: Provided that such lower limit shall be
imposed only for such period as is necessary to carry out repairs or reconstruction or until the condition of
the road is satisfactory; (b) to impose on any road or area, either permanently or for such time as he considers
appropriate, such lower limit of speed as may be necessary to prevent damage to the road or for the safety of
the public having regard to any permanent or temporary hazards, the alignment or characteristics of the road,
the width of streets, nature of traffic or general development of the area: CAP. 403 Traffic [Rev. 2014] [Issue
3] T13 - 30 Provided that, in any case whilst such lower limit is in force under this subsection, indication of
the maximum speed permitted shall be given by prescribed traffic signs erected and maintained so as plainly
to indicate to drivers entering or leaving such restricted road where the lower speed limit begins and ends.’’
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416 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

registered post or by hand, to the court indicated in the notification so as to

reach that court within the time indicated in the notification.
(5) The court may, on receipt of a plea of guilty, proceed to conviction and may, after
considering any mitigating circumstances stated in writing or personally by the
accused, pass a sentence imposing the statutory maximum penalty or remitting
the penalty in whole or in part and direct that a refund of the whole or of any
portion of the penalty remitted to be made to the accused.
(6) If any person served with a notification under this section fails to comply with
such notification, the person to be liable for the offence shall be the registered
owner of the vehicle or, when the registered owner is a company, the person
appointed by the company to be liable under this subsection or, in default of
such appointment, the secretary, or person performing the duties of secretary,
of such company, unless it is shown by such person, owner or secretary, as the
case may be, that he was not in charge of the vehicle at the relevant time and he
satisfies the court that he has given all information at his disposal to the police
or the court to enable the person who was in charge at the relevant time to be
summoned.
(7) A copy of the notification shall be placed before the court by which the charge
is to be dealt with at the time fixed for the attendance of the accused to answer
the charge and, unless the court otherwise directs, such copy may be used as a
charge sheet.
(8) If any person having been served with a notification issued under this section fails
either to attend the court on the day and at the time specified in such notice or
to plead guilty and pay the statutory maximum penalty in the manner indicated
before such day, he may be brought before the court either by summons or by
warrant and, unless he shows good cause to the contrary, shall be guilty of an
offence and liable forthwith by order of the court to a fine not exceeding two
hundred shillings or to imprisonment for a term not exceeding one month.
(9) (a) If any person, other than an authorized person, removes from a vehicle a
police notification of a traffic offence which has been affixed thereto by a police
officer in pursuance of this section, or any portion of such notification, or tears or
defaces the same, he shall be guilty of an offence and liable on first conviction to
a fine not exceeding two hundred shillings, and on each subsequent conviction
to a fine not exceeding five hundred shillings or to imprisonment for a term not
exceeding three months.
(b) In this subsection, “authorized person” means the owner or person in charge of
the vehicle or any person authorized by the owner to remove the notification.
(10) Any owner or person in charge of a vehicle who finds affixed thereto a police
notification of a traffic offence which appears to have been torn or defaced
so that it is not fully legible shall within two days report, either in writing or
personally, to the police station of the area in which the notification was found,
and if he fails so to report he shall be guilty of an offence and liable to a fine not
exceeding one hundred shillings.
[Act No. 52 of 1959, section 11, L.N. 242/1964, Act No. 1 of 1986, section 31.]
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When the Criminal Process is Abused 417

117A. Assignment of demerit points on conviction for certain offences

(1) Subject to subsection (2), where a person is convicted of an offence specified
in the Schedule, the court may, in addition to any penalty, order—
(a) that the demerit points specified in that Schedule in relation to the
offence be recorded against any license held by that person; and
(b) that the person be disqualified in accordance with subsection (4).
(2) Subsection (1) shall not apply if the penalty imposed by the court on the
convicted person includes an order disqualifying that person from holding or
obtaining a driver’s license.
(3) Where a person is served with a prescribed notice under section 117 in
respect of an offence to which that section relates, and pays the maximum
penalty in accordance with that section—
(a) the number of demerit points specified in the Schedule shall be recorded;
and
(b) the police shall record in respect of that person—
(i) details of the offence committed;
(ii) the date on which the maximum penalty was paid;
(iii) the number of demerit points specified in the Schedule in relation
to that offence; and
(iv) as of that date, the total number of demerit points recorded against
the licence of that person.
(4) Where the demerit points accumulated by a person total to—
(a) ten or more but less than fourteen, that person shall be disqualified from
holding or obtaining a driver’s licence for a period of six months;
(b) fourteen or more but less than twenty, that person shall be disqualified
from holding or obtaining a driver’s licence for a period of one year;
(c) twenty or more, that person shall be disqualified from holding or
obtaining a driver’s licence for a period of two years.
(5) Where demerit points have been recorded against a person’s licence under this
section, and for a period of three years after the date of the latest recording
no further demerit points are recorded, the demerit points shall be expunged
from the records:
Provided that in calculating the period of three years, no account shall be
taken of any period of disqualification pursuant to subsection (4), or by virtue
of an order of the court under any other provision of this Act.
[Act No. 38 of 2012, section 47.]
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418 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

Now of interest is the Schedule dealing with demerit points.392 It imposes 2 demerit
points if you exceed the speed limit by 10 to 20 Kph. Logically anything below 10
Kph does not attract any demerit points.
We now reproduce the Traffic (Minor Offences) Rules, 1975 that were last
amended in 1984 and as per the latest extract from the Laws of Kenya online version
by Kenya Law Reports. The Rules were repealed by Legal Notice No. 161 dated 23
September 2016 that introduced the Traffic (Minor Offences) Rules, 2016. However,
it is clear from the repealed Rules, that prior to 23 September 2016, the maximum
fines for various traffic infringements were as set out below.

Now let us turn to the substance Act that prescribes the speed limits as follows under
sections 43 and 70.
Now let us turn to the substance Act that prescribes the speed limits as follows under
sections 43 and 70.
43. Penalties in relation to speed
(1) Any person who contravenes or fails to comply with any of the provisions of
section 42 shall be guilty of an offence and liable to a fine of not exceeding one
hundred thousand shillings.
(2) A first or second conviction for an offence under this section shall not render
the offender liable to be disqualified for holding or obtaining a licence for a
longer period than, in the case of a first conviction, one month, or in the case of
a second conviction three months:

392 Made pursuant to section 117A, No. 38 of 2012, 49.

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When the Criminal Process is Abused 419

Provided that, if the offender has been convicted of reckless or dangerous driving
within the three years immediately preceding the date of his conviction for
an offence under this section, such previous conviction shall be treated for the
purposes of this subsection as if it had been a conviction for an offence under
this section.
(3) A person charged with the offence of driving a motor vehicle of any class or
description on a road at a speed greater than the maximum speed allowed shall
not be liable to be convicted solely on the evidence of one witness to the effect
that in the opinion of the witness the person charged was driving the vehicle at
such greater speed.
[Act No. 1 of 1986, section 9, Act No. 38 of 2012, section 11.]
70. Traffic signs
(1) Subject to and in conformity with such general or other directions as may be
given by the Minister, a highway authority may cause or permit traffic signs to
be placed on or near a road.
(1A) Without prejudice to the generality of subsection (1), a highway authority shall
cause to be placed on or near a road traffic signs prescribing speed limits on the
road.
(2) Traffic signs shall be of the prescribed size, colour and type except where the
Minister authorizes the erection or retention of a sign of another character.
(5A) The driving licence of a person who has been convicted for the violation of a
speed limit prescribed for a road under subsection (1A) shall be invalidated for a
period not less than three years—
(a) if the violation of the limit is by more than twenty kilometres per hour; and
(b) the violation is repeated three or more different times.
(5B) A person who violates a speed limit prescribed for a road under subsection (1A)
by more than twenty kilometres per hour commits an offence and shall be liable,
on conviction, to imprisonment for a term of not less than three months, or a
fine of not less than twenty thousand shillings, or both.

7.8.3 On Illegal Fines for the Traffic Offence of Speeding

High Court Criminal Revision No. 160 of 2016 Ankush Manoj Shah
v Republic

Facts of the Case

This Criminal Revision arose out of Traffic Case No. 13101 of 2016 wherein the
applicant was charged with the offence of violating the prescribed speed limit for
a road contrary to Section 70(5A)(a) of the Traffic Amendment Act No. 37 of 2012
Legal Notice No. 163 of 2012 as read with Section 70(5B)(1A) Cap 403, Laws of
Kenya.The Applicant was arrested and charged for driving at 120kph in a road section
where the prescribed limit was 100kph. On arraignment for plea taking, I raised a
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420 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

preliminary objection on the ground that the charge sheet was fatally defective for
it disclosed no offence and the applicant could not be charged under a non-existent
offence. The lower court dismissed the preliminary objection leading to the criminal
revision.
The High Court in upholding the revision held that not only did Section 70(5B)
(1A) not exist in law but also the clear import of Section 70(5A)(a) is that the offence
is applicable where the violation of the prescribed speed limit is by more than 20kph.
The upshot of this holding being that an individual can only be charged under Section
70(5A)(a) where he has exceeded the speed limit prescribed by a highway authority
through traffic signs as per Section 70(1A) by more than 20 Kilometre per hour.
There has been some confusion as the effect of Section 42, which some are
mistakenly convinced is an alternative to Section 70(5A)(a). Section 42 reads as follows:
42.(1) No person shall drive, or, being the owner or person in charge of a vehicle, cause
or permit any other person to drive, a vehicle on a road at a speed greater than
such speed as may be prescribed as the maximum speed for that class of vehicle.
(2) On a vehicle subject to a speed restriction under subsection (1) except a vehicle
registered as a motor-car or motor-cycle or a private hire vehicle, there shall be
painted or affixed to the rear, as close as possible to the rear number plate and so as
to be clearly legible to a person within ten metres of the rear of the vehicle, a mark
in the prescribed form indicating its maximum permitted speed in kilometres per
hour.
(3) No person shall drive, or, being the owner or person in charge of a vehicle, cause or
permit any other person to drive, any vehicle at a speed exceeding fifty kilometres
per hour on any road within the boundaries of any trading centre, township,
municipality or city:
Provided that the highway authority shall erect and maintain traffic signs as
prescribed so as plainly to indicate to drivers entering or leaving such roads or
areas where the fifty kilometre per hour speed limit restriction begins and ends.
(4) Notwithstanding subsections (1) and (3), it shall be lawful for the Minister -
(a) to impose on any road such lower limit of speed as it considers necessary in
circumstances when, by reason of repairs, reconstruction or damage to the
road or the condition of the road, any lower limit of speed is necessary for
the public-safety or to prevent damage to the road:
Provided that such lower limit shall be imposed only for such period as is
necessary to carry out repairs or reconstruction or until the condition of the
road is satisfactory;
(b) to impose on any road or area, either permanently or for such time as he
considers appropriate, such lower limit of speed as may be necessary to
prevent damage to the road or for the safety of the public having regard to
any permanent or temporary hazards, the alignment or characteristics of the
road, the width of streets, nature of traffic or general development of the area:
Provided that, in any case whilst such lower limit is in force under this
subsection, indication of the maximum speed permitted shall be given by
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When the Criminal Process is Abused 421

prescribed traffic signs erected and maintained so as plainly to indicate to

drivers entering or leaving such restricted road where the lower speed limit
begins and ends.
(4A) The Minister may by notice in the Gazette delegate the power conferred by
subsection (4) to a highway authority or other public body.
(4B) A delegation under subsection (4A) may -
(a) be made subject to such conditions, exceptions and limitations as are
specified in the notice;
(b) be made either generally or with respect to any particular road or area;
and
(c) be revoked or varied by a subsequent notice made in like manner,
and shall not prevent the exercise by the Minister of any power so
delegated.
(5) The provisions of this section or of this or any ot her Act, imposing a speed
limit on motor vehicles, shall not apply to any vehicle on an occasion when it
is being used for fire brigade, ambulance or police purposes, if the observance
of such provisions would be likely to hinder the use of the vehicle for the
purpose for which it is being used on that occasion.
(6) Nothing in subsection (5) authorizes a person to use a motor vehicle for
fire brigade, ambulance or police purposes in contravention of any other
provision of this Act.
As is evident from the emphasized sub-sections, an offence under Section 42 is only
committed where the speed prescribed for a certain class of vehicle is exceeded and/or
where the speed of 50kph is exceeded within a trading centre, township, municipality
or city. Further, the highway authority is mandated to indicate where such restrictions
begin and end so that drivers are made aware. Consequently, it is evident that Section
42 would only be applicable where:
a) a specific speed is prescribed in respect of a certain class of vehicle, which speed limit
is exceeded; or
b) the speed of 50kph is exceeded within a trading centre, township, municipality or city.
However, the relevant authority bears a corresponding duty to place signs near the
road indicating where this speed restriction begins and ends.
It was important for the author to take this case up as the issue of illegal fines imposed
due to defective application of the law, defective and duplex charge sheets causing
people to suffer illegal fines, which is unconstitutional.

7.8.4 Tips
From the above and bearing in mind article 50(p) of the Constitution, one may
surmise as follows:
(a) Rule 3 of the Traffic Rules dealing with Offences and Rules provides:
“Where any act or omission is an offence under the Act and these Rules, nothing
in these Rules shall be deemed to affect the liability of any person to be prosecuted
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422 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

under the Act: provided that no person shall be prosecuted twice for the same act or
omission.’’
Bearing this in mind be vigilant when analysing the charges.
b) The traffic charges where excessive penalties are imposed appear to be duplex as the
1984 Regulations made under section 117 were repealed on 23 September 2016.The
new Rules impose fines as follows:
Exceeding speed limit of 50 Kph or as prescribed by a traffic sign

1-5 Kph Warning

6-10 Kph KShs 500

11-15 Kph KShs 3,000

16-20 Kph KShs 10,000

c) Section 70(5)(B) clearly makes it an offence if you exceed the prescribed speed limit
by 20Kph. However, what happens when, say, you travel at 69 Kph or 119 Kph? There
are two schools of thought:
i. The National Transport and Safety Authority, in a rejoinder to an article I
published in the Daily Nation Newspaper in March 2015 where I argued about
the illegally imposed traffic fines, contended that the law simply meant that an
offence had been committed but one that attracts a less severe penalty. If that
is the case, then the police, prosecutors and the courts should have resorted to
the penalties under the Traffic (Minor Offences) Rules, 1975 (repealed), prior to 23
September 2016 that provided for fines of KShs. 300 [exceeding 50Kph) and
KShs. 500 (exceeding 100Kph).
ii. Following the repeal of the 1975 Rules, the new Rules that set out the statutory
maximum penalty, have vindicated my argument that the citizens of Kenya were
exposed to illegal traffic fines for decades. The state may have collected billions
of shillings in illegal fines when you consider that citizens were fined thousands
of shillings for exceeding the speed limit when in actual fact the fines were
either KShs. 300 or KShs. 500.
iii. The plain reading of section 70(5)(B) simply means that an offence is committed
if you exceed the speed limit by 20 Kph and the minimum fine is not less than
KShs. 20,000.
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When the Criminal Process is Abused 423

7.9 Analysis of case law on when Courts Intervene to Quash

Charges

7.9.1 Charge Brought for Collateral Purpose

Ndarua v Republic.393 In this case Justices Rimita and Ombijah considered a charge that
had been brought for a collateral purpose.

Facts
The applicant was charged alongside another person for fraud, conspiracy and abuse of
office before the Chief Magistrate, Nairobi. The facts leading to his charge were that
the applicant while working for the Kenya Posts and Telecommunications Corporation
together with others, took part in a project which stalled after a colossal amount of
money had been spent.
The charges were initially brought by the Kenya Anti-Corruption Authority
which was later declared illegal and dissolved. The Attorney-General then took
over the proceedings and entered a nolle prosequi only to reinstitute the charges soon
thereafter.
The applicant then moved to the High Court for an order of prohibition against
the Chief Magistrate from trying him on the ground that the trial was brought
selectively and for purposes other than to meet the ends of justice. The application
was brought under sections 8 and 9 of the Law Reform Act (Chapter 26) and Order
LIII of the Civil Procedure Rules.
The applicant did not name the Chief Magistrate as a party although there was
direct mention of the Chief Magistrate in the prayers and the body of the application.
It was argued for the Republic that the application was defective because of the
omission.
Held –
1. The Chief Magistrate hearing the criminal case should have been named as a
respondent in the application. However, failure to so name him was not fatal as the
application as well as the prayers showed that the Chief Magistrate was a party and
had been served with the application.The application raised questions of considerable
importance and the liberty of the applicant was involved. The application could
proceed as it was (Uganda v Commissioner of Prisons [1966] EA 514 and Shah v Resident
Magistrate Nairobi and another [2000] 1 EA 208 (CAK) followed).
2. The prosecution of the applicant was not in good faith and was a way of someone
paying for the misdeed of someone else. There was no reason why the other officials
of the corporation had not been charged for the loss of the money. The Court had
power to issue a prohibition against prosecution where the prosecution was made
mala fide and as abuse of the process of the Court (Republic v Grays Justices [1982] 3 All
ER 653, DPP v Humprey’s [1976] 2 All ER 497, Spants v Willams [1992] 66 ALJR 585
and Stanley Munga Githunguri v Republic, High Court criminal application number

393 [2002] 1 EA 205

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424 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

271 of 1985 (UR) approved and followed). An order of prohibition was issued against
the Chief Magistrate.
Tirop v Attorney General.394 The accused filed a judicial review application founded,
inter alia, on the grounds that the prosecution was without criminal intent and
was oppressive and an abuse of the court process. The court allowed the order for
prohibition and held (see page 27):
‘The situations under which a trial can be said to be unfair and oppressive are several,
namely:
(a) Where there is absolutely not iota of evidence.
(b) Where it is selectively mounted as to amount to a persecution for ulterior motives.
Each case must therefore be considered on its own facts.’

7.9.2 Breach of Rules of Natural Justice – Not following Due Process

Githui v Public Health Officer395 at page 652, the court considered the effect of failing to
comply with the mandatory provisions of sections 119 and 120 of the Public Health
Act where no notice of abatement of nuisance had been given. Justice Okwengu held
(see page 18):
‘First a notice should be served on the author of the nuisance …to remove the nuisance
within a specified time. In this case none of the above mandatory requirements were
complied with. A peculiar procedure was adopted with the result that the appellant was
condemned without being given any hearing. The trial magistrate erred in failing to
comply with the mandatory legal provisions and also in acting contrary to the rules of
natural justice.’
This is a common practice by public health officials who rush to charge accused
persons.

7.9.3 When will a court Interfere With a Criminal Investigation?

The issue at hand in most cases is the complaint that the criminal process is being
used to bring about undue pressure in a civil matter. The court is asked to carry out a
balancing act between upholding a citizen’s fundamental rights and the power of the
police to carry out their investigations.
The courts have come up with various indicators to determine if the criminal
process is being abused.

7.9.4 It is the Duty of an Advocate to Object to a Duplex Charge Sheet

The Court of Appeal in the case of David Ngugi Mwaniki v Republic396 held that it is the
duty of an advocate to object to the charge sheet if duplex. The court held:

394 [2002] 2 KLR 165

395 KLR (E & L)
396 [2001] EKLR
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When the Criminal Process is Abused 425

“In the latter case, the duplicity is not necessarily fatal; in the former, it must be necessarily
fatal for the reasons given in Cherere’s case, and it does not appear to matter that the
accused was represented by an advocate right from the beginning of the trial and that the
advocate should have, but did not, raise objection to the charge.’’
Section 89 of the Criminal Procedure Code imposes a duty on a magistrate to verify
if the charge discloses an offence. The section reads:

89. Complaint and Charge

(1) Proceedings may be instituted either by the making of a complaint or by the bringing
before a magistrate of a person who has been arrested without warrant.
(2) A person who believes from a reasonable and probable cause that an offence has been
committed by another person may make a complaint thereof to a magistrate having
jurisdiction.
(3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to
writing by the magistrate, and, in either case, shall be signed by the complainant and
the magistrate.
(4) The magistrate, upon receiving a complaint, or where an accused person who has
been arrested without a warrant is brought before him, shall, subject to the provisions
of subsection (5), draw up or cause to be drawn up and shall sign a formal charge
containing a statement of the offence with which the accused is charged, unless the
charge is signed and presented by a police officer.
(5) Where the magistrate is of the opinion that a complaint or formal charge made or
presented under this section does not disclose an offence, the magistrate shall make an
order refusing to admit the complaint or formal charge and shall record his reasons
for the order.
In the case of R v Gilbert Okoth,397 the court reiterated the provision of section 89(5)
of the CPC and held that before the charge is read out, it was incumbent upon the
magistrate taking the plea to ensure that the charge as laid was properly framed or
presented
In the case of Timothy John Victor v Republic.398 The applicant, a foreign national
who was arrested at the airport, had been led to believe that by pleading guilty he
would only pay a fine. Instead, he was convicted and imprisoned for a period of 7
years for being in possession of a toy gun. The court held as follows as regards the
disconnect between the particulars of offence and the statement of charge:
“A look at the trial court record seemingly would show that the correct procedure of
taking a plea was followed in which case the plea would be deemed as unequivocal.
However, taking into account that in Count I the particulars of the offence did not support
the statement of the charge it is correct to state that the appellant pleaded to the wrong
offence. Therefore, the entire process represented a defective plea and the plea cannot
therefore be deemed as unequivocal. Were the court to hold that the plea was unequivocal
it would be rubberstamping an illegality.’’

397 [1999] eKLR

398 [2016] eKLR
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426 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

In the case of Republic v Deputy Commissioner for Labour and 2 others Ex-Parte Kevin
Ashley and 2 others,399 the court quashed the criminal proceedings that had been
commenced against the employer for allegedly wrongfully dismissing the employee.
The Court held as follows:
1. Article 50(2)(n) of the Constitution of Kenya, 2010 provided that a person could not
be convicted for an act or omission that at the time it was committed or omitted was
not an offence in Kenya or a crime under international law.
2. Section 49 of the Employment Act dealt with remedies for wrongful dismissal and
unfair termination. Section 49(1)(c) did not create any particular offence but gave a raft
of remedies available in cases of wrongful dismissal and unfair termination. Section 88
of the Employment Act on the other hand provided for a general penalty and offences
under other laws. The section clearly stipulated for the penalty for contravening any
part of the Employment Act, 2007 for which no penalty was specifically provided for.
section 88 of the Employment Act envisaged a penalty for offences and contraventions
under the Employment Act.
3. A punishment could not be prescribed for a non-existent offence. Section 49 of
the Employment Act envisaged a case as was provided for under section 15 of the
Employment and Labour Relations Act where the Court could refer a dispute to
other methods of resolving the same including seeking for an opinion/report from a
Labour Officer. It was then that the Labour Officer could recommend remedies set
out under section 49 of the Employment Act where there was a case of unfair and
wrongful termination.
4. The Employment and Labour Relations Court had jurisdiction to handle the
application as provided for under section 12 of the Employment and Labour Relations
Court Act. However, the trial Court did not have jurisdiction to hear and determine
a non-existent offence as charges preferred against the applicants before that Court
were non-existent.
5. The applicants could have contravened the law but the mode of resolving the matter
was not by charging them. The grievants still had avenues to file suits before the
Employment and Labour Relations Court if they felt that they were wrongfully or
unfairly terminated and the respondents needed not to charge the applicants in that
respect.”
In the case of Kuria & 3 others v Attorney General,400 which was cited with approval
in Republic v Director of Public Prosecutions and another ex parte Job Kigen Kangogo,401
Justice Odunga held as follows with respect to the necessity of intrusion of judicial
review proceedings into criminal matters where the police are driven by malice or
collateral considerations and where a prosecution is commenced without any factual
foundation:
“25. Therefore the police are expected to be professional in the conduct of their investigations
and ought not to be driven by malice or other collateral considerations. Malice,
however, can either be express or can be gathered from the circumstances surrounding

399 [2016] eKLR

400 [2002] 2 KLR 69
401 [2016] eKLR
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When the Criminal Process is Abused 427

the prosecution. A prosecution can either be mounted based on an offence committed

in the presence of law enforcement officers or by way of a complaint lodged by a
person to the said officers or agencies. However, the mere fact that a complaint is
lodged does not justify the institution of a criminal prosecution.The law enforcement
agencies are required to investigate the complaint before preferring a charge against
a person suspected of having committed an offence. In other words the police or any
other prosecution arm of the Government is not a mere conduit for complainants.
The police must act impartially and independently on receipt of a complaint and are
expected to carry out thorough investigations which would ordinarily involve taking
into account the versions presented by both the complainant and the suspect. I say
ordinarily because the mere fact that the version of one of the parties is not considered
is not necessarily fatal to the prosecution. However, whereas it is alleged in this case
exculpatory evidence is presented to the police in the course of investigation and
for some reasons unknown to them they deliberately decide to ignore the same one
can only conclude that the police are driven by collateral considerations other than
genuine vindication of the criminal judicial process. Neglect to make a reasonable
use of the sources of information available before instituting proceedings would be
evidence of malice and hence abuse of discretion and power.
29. I also associate myself with the decision in R v Attorney General ex p Kipngeno Arap
Ngeny, High Court Civil Application No. 406 of 2001 that:
“A criminal prosecution which is commenced in the absence of proper factual
foundation or basis is always suspect for ulterior motive or improper purpose. Before
instituting criminal proceedings, there must be in existence material evidence on
which the prosecution can say with certainty that they have a prosecutable case.
A prudent and cautious prosecutor must be able to demonstrate that he has a
reasonable and probable cause for mounting a criminal prosecution otherwise the
prosecution will be malicious and actionable”.
30. In this case the applicant avers that the complainant in the criminal case, the Bank,
informed the 1st respondent to drop the charges against the applicant but due to
unknown reasons the 1st respondent decided to soldier on with the same.This damning
averment has not been controverted. As was held in R. v The Judicial Commission into
the Goldenberg Affair and 2 Others ex parte Saitoti HC Misc Appl. 102 of 2006:
“It is not good for the DPP to argue that the applicant should be arrested and
charged so that he can raise whatever defences he has in a trial court.The Court has
a constitutional duty to ensure that a flawed threatened trial is stopped in its tracks
if it is likely to violate any of the applicants’’fundamental rights.”
31. Having considered the material on record, it is clear that the 1st respondent has not
laid any basis upon which it can be concluded by this Court that the 1st respondent
has any prospects of successfully prosecuting the applicant.’’
Justice Odunga addressed this conundrum in the case of Giro Commercial Bank v
Director of Public Prosecutions and 3 others402 where he held:
“Therefore the determination of this case must be seen in light of the foregoing decisions.
However, before going to the merits of the instant application it is important to note

402 [2014] eKLR

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428 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

that what is sought to be prohibited is the continuation of investigation rather than a

criminal trial. The Court must in such circumstances take care not to trespass into the
jurisdiction of the investigators or the Court which may eventually be called upon to
determine the issues hence the Court ought not to make determinations which may
affect the investigations or the yet to be conducted trial. That this Court has power to
quash impugned warrants cannot be doubted. However, it is upon the ex parte applicant
to satisfy the Court that the discretion given to the police to investigate allegations of
commission of a criminal offence ought to be interfered with. It is not enough to simply
inform the Court that the intended trial is bound to fail or that the complaints constitute
both criminal offence as well as civil liability. The High Court ought not to interfere with
the investigative powers conferred upon the police or the Director of Public Prosecutions
unless cogent reasons are given for doing so.’’
Justice Odunga also dismissed the arguments that there were sufficient safeguards
for an accused in a flawed criminal process. In the case of Republic v Director of Public
Prosecutions and 2 others ex-parte Praxidis Namoni Saisi,403 His Lordship held as follows:
“82. Whereas this is not the forum to determine the applicant’s innocence or culpability,
the DPP owes this Court a duty of placing before this Court material upon which
this Court can feel that he is justified in mounting the prosecution.
83. The National Prosecution Policy, revised in 2015 provides at page 5 that:-
Public Prosecutors in applying the evidential test should objectively assess the totality
of the evidence both for and against the suspect and satisfy themselves that it establishes
a realistic prospect of conviction. In other words, Public Prosecutors should ask
themselves; would an impartial tribunal convict on the basis of the evidence available?
84. The said Policy further states that:
Prosecutors must be satisfied that there is sufficient evidence to provide a realistic
prospect of conviction against each suspect on each charge. They must consider what
the defence case may be, and how it is likely to affect the prospects of conviction. A
case which does not pass the evidential stage must not proceed, no matter how serious
or sensitive it may be.
The finding that there is a realistic prospect of conviction is based on the prosecutor’s
objective assessment of the evidence, including the impact of any defence and any
other information that the suspect has put forward or on which he or she might rely.
It means that an objective, impartial and reasonable jury or bench of magistrates or
judge hearing a case alone, properly directed and acting in accordance with the law, is
more likely than not to convict the defendant of the charge alleged. This is a different
test from the one that the criminal courts themselves must apply. A court may only
convict if it is sure that the defendant is guilty.
85. I also associate myself with the decision in R v Attorney General ex p Kipngeno Arap
Ngeny, High Court Civil Application No. 406 of 2001 that:
“A criminal prosecution which is commenced in the absence of proper factual
foundation or basis is always suspect for ulterior motive or improper purpose. Before
instituting criminal proceedings, there must be in existence material evidence on

403 [2016] eKLR

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When the Criminal Process is Abused 429

which the prosecution can say with certainty that they have a prosecutable case. A
prudent and cautious prosecutor must be able to demonstrate that he has a reasonable
and probable cause for mounting a criminal prosecution otherwise the prosecution
will be malicious and actionable”.
86. As was held in Githunguri v Republic [1986] KLR 1 at page 22 line 22, to the effect
that:
“A prosecution is not to be made good by what it turns up. It is good or bad when it
starts.”
87. In my view to permit the prosecutor to arbitrarily exercise his constitutional mandate
based on ulterior criminal motives would amount to the Court abetting abuse of
discretion and power and criminality. It was therefore held in Regina v Ittoshat [1970]
10 CRNS 385 at 389 that:
“this Court not only has the right but a duty to protect citizens against harsh and
unfair treatment. The duty of this Court is not only to see the law is applied but also,
which is of equal importance, that the law is applied in a just and equitable manner.”
88. Similarly in Paul Imison v Attorney General & 3 others, Nbi HCMCA No. 1604 of 2003:
“I do not think that our Constitution which is one of a democratic state would condone
or contemplate abuse of power....The Attorney General in some of his constitutional
functions does perform public duties and if he were to be found wanting in carrying
them out or failing to perform them as empowered by the Constitution or any other
law, I see no good reason for singling him out and failing to subject him to judicial
review just like any other public official. I find nothing unconstitutional in requiring
him to perform his constitutional duties. A monitoring power by the court by way
of judicial review would have the effect of strengthening the principles and values
encapsulated by the Constitution.To illustrate my point, Judicial Review tackles error
of law and unlawfulness, procedural impropriety, irrationality, abuse of power and in
not too distant future, human rights by virtue of the International Conventions which
Kenya has ratified. In exercising the Judicial Review jurisdiction the court would not
be sitting on appeal on the decisions of the Attorney General, he will still make the
decisions himself but the lawfulness, etc. of his decisions should be within the purview
of the courts....”
89. This Court therefore has the powers and the constitutional duty to supervise the
exercise of the respondent’s mandate whether constitutional or statutory as long as the
discretion falls foul of section 4 of the Office of the Director of Public Prosecutions
Act and article 157 of the Constitution.
90. I also refer to R v DPP and others Ex parte Qian Guo Jun & another [2013] eKLR where
the Court held that:
“Although the Court appreciates that the discretion given to the police to investigate
offences and that given to the Director of Public Prosecutions ought not to be
lightly interfered with, where an applicant places before court material which
prima facie show that the dispute between the applicant and the interested party
is purely civil in nature and that the criminal proceedings are being undertaken
with ulterior motives, it behoves the respondents to place some material before the
court which though not conclusively proving the guilt of the applicant warrants
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430 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

their action to charge the applicants. In absence of such material and in light of
the material placed before the court by the applicant, the Court would be left with
no option but to believe the applicant’s version that being the only factual version
before it.”
91. As was appreciated in R v Attorney General ex parte Kipngeno Arap Ngeny, High Court
Civil Application No. 406 of 2001:
“Although the Attorney General enjoys both constitutional and statutory discretion
in the prosecution of criminal cases and in doing so he is not controlled by any
other person or authority, this does not mean that he may exercise that discretion
arbitrarily. He must exercise the discretion within lawful boundaries....Although
the state’s interest and indeed the constitutional and statutory powers to prosecute
is recognised, however in exercise of these powers the Attorney General must act
with caution and ensure that he does not put the freedoms and rights of the
individual in jeopardy without the recognised lawful parameters....The High Court
will interfere with a criminal trial in the Subordinate Court if it is determined
that the prosecution is an abuse of the process of the Court and/or because it is
oppressive and vexatious....In doing so the Court may be guided by the following
principles:
(i). Where the criminal prosecution amounts to nothing more than an abuse
of the process of the court, the Court will employ its inherent power and
common law to stop it. (ii). A prosecution that does not accord with an
individual’s freedoms and rights under the Constitution will be halted: and
(iii). A prosecution that is contrary to public policy (or interest) will not
be allowed....A prosecution that is oppressive and vexatious is an abuse of
the process of the Court: there must be some prima facie case for doing so.
Where the material on which the prosecution is based is frivolous, it would
be unfair to require an individual to undergo a criminal trial for the sake of it.
Such a prosecution will receive nothing more than embarrass the individual
and put him to unnecessary expense and agony and the Court may in a
proper case scrutinize the material before it and if it is disclosed that no
offence has been disclosed, issue a prohibition halting the prosecution. It is
an abuse of the process of the Court to mount a criminal prosecution for
extraneous purposes such as to secure settlement of civil debts or to settle
personal differences between individuals and it does not matter whether the
complainant has a prima facie case. Evidence of extraneous purposes may also
be presumed where a prosecution is mounted after a lengthy delay without
any explanation being given for that delay....A criminal prosecution will also
be halted if the charge sheet does not disclose the commission of a criminal
offence....A criminal prosecution that does not accord with an individual’s
freedoms and rights, such as where it does not afford an individual a fair
hearing within a reasonable time by an independent and impartial court, will
be the clearest case of an abuse of the process of the Court. Such a prosecution
will be halted for contravening the constitutional protection of individual’s
rights....In deciding whether to commence or pursue criminal prosecution
the Attorney General must consider the interests of the public and must ask
himself, inter alia, whether the prosecution will enhance public confidence
in the law: whether the prosecution is necessary at all; whether the case can
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When the Criminal Process is Abused 431

be resolved easily by civil process without putting individual’s liberty at risk.

Liberty of the individual is a valued individual right and freedom, which
should not be tested on flimsy grounds.”
92. As was held in R. vs. The Judicial Commission into the Goldenberg Affair and 2 others ex
parte Saitoti, HC Misc Appl. 102 of 2006:
“It is not good for the DPP to argue that the applicant should be arrested
and charged so that he can raise whatever defences he has in a trial court.
The Court has a constitutional duty to ensure that a flawed threatened trial is
stopped in its tracks if it is likely to violate any of the applicant’s fundamental
rights.”
93. That was the position in Williams v Spautz [1992] 66 NSWLR 585, at 600, where the
High Court of Australia consisting of seven judges observed that:
“If the proceedings obviously lack any proper foundation in the sense that there is
no evidence capable of sustaining a committal, they will obviously be vexatious and
oppressive. In such a case, the proceedings themselves are an abuse of the process of
the Local Court and will inevitably result in the discharge of the defendant....And
that the charges against the defendant lack any foundation, the Supreme Court
would be justified in intervening to halt the proceedings in limine in order to
prevent the defendant from being subjected to unfair vexation and oppression....
For a man to be harassed and put to the expense of perhaps a long trial and then
given an absolute discharge is hardly from any point of view an effective substitute
for the exercise by the court of its inherent power to prevent abuse of its process.”
94. Therefore where it is clear to the Court that based on the admitted factual scenario
the charges levelled against the applicant are far-fetched it would not be permissible
for the Court to permit the applicant face the charges simply because she will have an
opportunity of defending herself. It is therefore clear that the said three counts facing
the applicant are untenable.

7.9.5 When the Landlord Uses the Criminal Process to Evict Tenants
I recall a case where I defended tenants who had been in occupation of a building
for decades. In the mid-eighties, when I was still in primary school, the landlord, a
company, lost a bid at the Business Premises Tribunal to have them removed on the
grounds that it wanted to re-develop the property.
In about the year 2000 or thereabouts, I was instructed by the same tenants to
defend them before the Business Premises Tribunal where the landlord sought to have
them removed on similar grounds. I successfully defended the tenants and the landlord
once again lost its bid to remove the tenants.
A few years later, after I had moved on to a new firm, I learnt that the tenants had
been evicted. I later spoke to one of the former tenants when we met over a cup of
tea when he related how the landlord deviously used an alternative route to have them
removed using a court order.
The landlord, a company, had been charged under various provisions of the
Physical Planning Act and the director pleaded guilty on behalf of the company. The
court fined the company and ordered repairs to be undertaken. In the absence of
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432 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

hearing the tenants, it ordered the tenants to vacate the premises within 30 days to
allow the repairs to take place. Finally, the landlord succeeded without having to hire
a lawyer. In this instance the directors of the company simply conspired with officials
of the enforcement department at City Hall who instituted criminal charges.
The courts have held that no order should be issued to evict tenants as this would
be in breach of the rules of natural justice.

7.9.9.1 Closure of Premises on Grounds of Public Health Without Hearing Tenants

In the exercise of powers under the Public Health Act with respect to closure or
demolition of premises the Republic v Kabue Kigera404 set out recommendations on the
procedure to be followed when tenants are involved.These recommendations were
made in 1986 and have stood the test of time.

Facts
A District Magistrate’s Court of the First Class made an order under the Public Health
Act (Chapter 242) for the closure of certain premises after it heard the evidence of a
Public Health Officer and the landlord and found the premises to be unfit for human
habitation.
The premises were under the occupation of 35 tenants. The effect of the
magistrate’s decision was that they were to clear from the premises and to re-occupy
it after the nuisances had been removed.
The landlord did not appeal against the magistrate’s decision and in due course,
copies of the order to vacate the premises were served on the tenants, one of whom
complied. The Legal Advice Centre filed this application for the remaining tenants
in which it argued that the tenants had been condemned unheard and that the City
Court had no jurisdiction to make the closing order as the premises was subject to the
Rent Restriction Act (Chapter 296). Justices Mbaluto and Bosire, JJ vacated the order
of closure and referred the matter back to the City Court with a direction that all
tenants or any persons who may be reasonably affected by an order of closure should
be summoned to show cause why such order should not be made. The court held:
1. A court has a duty not only to do justice but also to show that justice has been done.
In this case, the court heard the landlord and the Public Health Officer, but not the
tenants. There was no reason on the record why the tenants were not heard. There
was clearly a denial of justice.
2. It was imperative for the court to hear the tenants and any other person who, in its
judgment, was reasonably likely to be affected by the order of closure.
3. The rules of natural justice are inherent in all proceedings be they judicial or
administrative, unless there is express provision to bar a court from hearing any
interested party. The fact that there was no express provision in the Public Health
Act (Chapter 242) empowering the court to hear the tenants did not mean that the
court was divested of or denied jurisdiction to hear them.

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When the Criminal Process is Abused 433

4. The Rent Restriction Act (Chapter 296) did not divest jurisdiction from the
subordinate courts in dealing with closure or demolition of dwelling houses for
public health reasons under the Public Health Act.
5. The principal issue in considering whether the order of closure was to be left to stand
was whether the failure to hear the tenants had occasioned a failure or miscarriage
of justice. Upon a consideration of the matter, it was manifestly clear that there had
been a failure of justice as it was possible that if the court had heard the tenants, it
may not have been persuaded to make the order.
6. (Obiter) [The court, on the invitation of counsel, laid down a procedure for the
guidance of the subordinate courts in the exercise of their powers of closure or
demolition under the Public Health Act. That procedure is enumerated as follows:
“We were invited to lay down a procedure for the guidance of subordinate
courts in the exercise of their power of closure or demolition under the Public
Health Act. Mr. Harwood proposed a procedure, which we agree with entirely
except for matters of detail.
The procedure is as under:
1. Upon receipt of a complaint under section 120(1) of the Public Health
Act, the court should deal with the criminal matter in the normal manner
until completion as provided under the Criminal Procedure Code.
2. If the court is, prima facie, satisfied that a nuisance has been proved to
exist such as renders the premises unfit for human habitation, whether or
not there is a conviction, it should adjourn further proceedings so as to
summon before it all persons who are reasonably likely to be affected by
an order of closure or demolition, if made.The summons or notice should
give particulars of the nuisance, the orders proposed to be made, the date
they are required to appeal and, of course, require them to appear to show
cause why the order proposed should not be made.
3. On the appointed date and time the court will then hear all those who have
responded to the court’s summons or notice and who wish to be heard.
If upon conclusion of proceedings the court is satisfied, on a balance of
probabilities, that a nuisance does exist as renders the premises or dwelling
unfit for human habitation, it should record such finding and proceed to
declare them as such and make the necessary orders as provided under the
Public Health Act.
We are conscious of the fact that the recommended procedure is likely to
greatly prolong proceedings and delay the abatement of nuisances.
However, we consider it ideal to meet the ends of justice, and at the
same time reduce the number of applications similar to the present one,
which may be made to this court.We are indebted to Mr. Harwood for his
proposal which greatly eased up our quest for a reasonable and workable
procedure.”
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434 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

A similar issue arose in the case of J. H. Jumani and another v Municipal Council of
Mombasa.405

Facts
The landlord was charged in Mombasa Resident Magistrate’s Court Criminal Case
No. 3939 of 2007 with failing to comply with a requisition notice served upon him
under by-law 243 of the Building Code, Local Government (Adoptive) By-laws
Building Orders, 1968. He had been served with a building notice requiring him
with immediate effect to embark on major repairs to his building standing on plot
No. 6/XXXVIII/MI Old Town area Mombasa.The charge indicated the defects were
as follows-the walls had developed cracks, the floor slab was peeling off and the roof
was leaking.
The accused admitted the facts upon which he was convicted on his own plea of
guilty.
In mitigation, the accused pleaded for forgiveness and stated that he had three
tenants in the premises who had refused to vacate the same to enable him carry out
the necessary repairs. He then asked for the assistance of the court to have the tenants
vacate the premises.
The court obliged and issued “a vacation notice to the tenants to vacate the
premises within 30 days.” The court also imposed a fine of KShs 3,000 in default one
month’s imprisonment.
The notice to vacate the premises provoked the revision after two tenants
instructed their advocate to write to the High Court. Justice F. Azangalala (as she then
was) allowed the revision and held:
“It must be pointed out from the outset that the accused is not challenging his conviction
and sentence. Indeed, from his statement in mitigation all he was interested in on
conviction was assistance of the court to have the tenants vacate his premises. The Learned
District Magistrate in a rather off- handed and casual manner granted the relief sought
by the accused. It cannot be gainsaid that her order would have to adversely affect the
tenants who were not before her. She made no attempt at all to grant the tenants an
opportunity to be heard before issuing what she called “vacation notices”. There was
therefore a total failure to comply with the Rules of Natural Justice. She condemned
the tenants without giving them an opportunity to be heard. That is a basic principle of
our jurisprudence and it is surprising that the District Magistrate was not alive to it. It
is also rather surprising that the District Magistrate did not see the need to satisfy herself
of the condition of the premises before granting the wish of the accused. With all due
respect to her, she must have known that her order would have far-reaching consequences
on the lives of the tenants and she should have heard them before making her order.
In this regard I would echo the recommendation made by Mbaluto, J and Bosire, J, as
he then was, in Republic v Kabue Kigera [Nairobi HC CR Application No. 48 of 1986]
(UR). In the exercise of powers under the Public Health Act with respect to closure or
demolition of premises, the learned Judges recommended the following procedure which
I also respectfully recommend:

405 [2008] eKLR

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When the Criminal Process is Abused 435

“1) Upon receipt of a complaint under section 120 of the Public Health Act, the court
should deal with the criminal matter in the normal manner until completion as
provided under the Criminal Procedure Code.
2) If the Court is prima facie satisfied that a nuisance has been proved to exist such as
renders the premises unfit for human habitation whether or not there is a conviction,
it should adjourn further proceedings so as to summon before it all persons who are
reasonably likely to be affected by an order of closure or demolition if made. The
summons or notice should give particulars of the nuisance, the orders proposed to
be made, the date they are required to appear and of course, require them to appear
to show cause why the order proposed should not be made.
3) On the appointed date and time the court will then hear all those who have
responded to the court’s summons or notice and who wish to be heard. If upon
conclusion of proceedings the court is satisfied on a balance of probabilities, that a
nuisance does exist as renders the premises or dwelling unfit for human habitation,
it should record such finding and proceed to declare them as such and to make the
necessary order as provided under the Public Health Act.”
There is a further matter which I can dispose of briefly. The record of the learned District
Magistrate does not reflect the basis of her authority to issue the Vacation Notices. The
accused was charged with failing to comply with a requisition notice served under By
Law 263 (supra). The penalties prescribed in default of compliance are against the owner
of the premises. The order made against the tenants was therefore made clearly without
jurisdiction. The order can therefore not stand on this ground also.
Mr. Onserio the learned State Counsel who appeared for the State did not support the
order of the learned District Magistrate neither did the accused counsel Mr. Obed. They,
however, sought an order that the case be referred back to the District Magistrate for the
issuance of the requisite notice to the tenants.
I have seriously considered the plea made by the learned State Counsel and counsel for
the accused. I have come to the conclusion that the learned District Magistrate acted
without jurisdiction as the penalties prescribed under the By Law can only be made
against the owner of the building. I am also alive to the fact that, the tenants may be
protected tenants and their eviction may be governed by a separate legislation and after
due process in a different tribunal. Referring the matter back to the District Magistrate
would therefore serve no purpose and may even perpetuate an illegality.
For the above reasons, the District Magistrate’s order made against the tenants by way of
a vacation notice for them to vacate the premises within 30 days is hereby set aside. The
accused, if he is, the owner of the building is at liberty to use lawful means to obtain vacant
possession of the premises.’’

7.10 Conclusion
I have set out various instances where the criminal process has been abused. The
evaluation of the law in this area should be useful guide to both the bar and the bench
in ensuring that the pillars of criminal justice system are upheld and that citizen’s
rights to a fair hearing are upheld.
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436 Litigation-The Art of Strategy and Practice: Law, Procedures and Practice

It is important that the Director of Public Prosecutions reviews most of the

standard charge sheets as many are defective. Advocates must be vigilant and point out
the defects in duplex charge sheets at the outset.
It is unjust to ask an accused to take a plea on duplex charge sheet. The same
ought to be amended from the outset.
There will be less congestion in prisons when citizens are fined in accordance
with the correct sentence prescribed for the offence.