LECTURE 4
DATE: Tuesday 1st August 2023 & Thursday 3rd August 2023
TOPIC: Principles underlying the right to know the case against you and
the right to a fair hearing in the context of the Civil Procedure Act,
Chapter 21 of the Laws of Kenya and the Rules made thereunder.
1. INTRODUCTION
(a) The Act:
Sections 19 to 22 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya are
the substantive provisions upon which the Rules that set out the framework to
ensure a level playing ground in civil litigation, avoidance of trial by ambush and
consistency of parties in the respective positions that they take at any given time
during the course of the proceedings.
(b) The Rules:
The Civil Procedure Rules, 2010 (“the Rules”) under the Civil Procedure Act are
made pursuant to Section 81 of the Civil Procedure Act and are primarily designed to
set out a flight path with respect to the conduct of civil litigation in both the High
Court and the Subordinate Courts.
2. ORDER 4, 5, 6 AND 7 OF THE CIVIL PROCEDURE RULES, 2010
• It is a cardinal pillar of the process of a fair hearing that all parties to a suit be
heard.
• In Kenya, that principle has a constitutional underpinning in Article 48 of the
Constitution of Kenya 2010.
• The right to access to justice is so fundamental that whereas Article 24 of the
said Constitution provides for the limitation of rights and fundamental freedoms
in certain circumstances, Article 25 of the said Constitution specifically states
that amongst the rights and freedoms which cannot be limited is the right to a
fair trial.
• The right to a fair trial entails the right of a party to present its case in court and
be heard in respect thereof and the corresponding right of the person sued to
also present its defense in Court and be heard in respect of the said defense.
• In the case of Kanda versus Government of Malaya [1962] AC 322, Lord
Denning stated that if the right to be heard is to be a real right which is worth
anything, it must carry with it a right in the accused man to know the case
which is made against him. He must know what evidence has been given and
what statements have been made affecting him; and then he must be given a
fair opportunity to correct or contradict them.
,• Whereas in the Kanda case, Lord Denning was expressing himself in a criminal
case context, his expression is true with respect to civil cases.
• The enactment of and the provisions contained in the Civil Procedure Act,
Chapter 21 of the Laws of Kenya, is primarily tailored to give effect to the
litigants right to a fair trial and to ensure that parties to a dispute are accorded a
framework under which their fundamental right to a fair hearing can be realized.
• The Act which is enacted to make provision for the procedure in civil courts and
the Rules made under section 81 of the Civil Procedure Act is a series of
provisions to facilitate a fair trial and a commonly known procedure so as to
ensure a level playing ground for the parties to a suit.
3. ORDER 4 – PLAINT
(a) The Demand Letter
• Before the filing of a suit, it is a general requirement that the party making a
claim sends a demand letter to the proposed Defendant setting out the nature
of the claim and what the proposed Defendant ought to do to avoid a suit being
filed.
• It is by reason thereof that Order 3 Rule 2 of the Civil Procedure Rules requires
that all suits filed under this Order should be accompanied by certain
documents amongst them a demand letter sent out prior to the filing of the
suit.
• The Black’s Law Dictionary, 8th Ed., page 462, defines a demand letter as: -
“A letter by which one party explains its legal position in a dispute and
requests that the recipient take some action (such as paying money
owned), or else risk being sued. Under some statutes (esp. Consumer-
protection laws), a demand letter is a prerequisite for filing a lawsuit.”
• The court in the case of Tom Odhiambo Achillah T/A Achilla T.O & Co
Advocates v Kenneth Wabwire Akide T/A Akide & Company Advocates &
3 others [2015] eKLR stated thus in this regard: -
“Order 3 Rule 2 of the rules referred to above provide that (material to
the objection raised by the 3rddefendant):
“2. All suits filed under rule 11 including suits against the government
except small claims, shall be accompanied by:-
a. ………
b. ……..
c. …….
, d. Copies of documents to be relied on at the trial including a
demand letter before action”
• It is usually the opinion of some courts that the failure or absence of a demand
and notice of intention to sue is a good reason for the Plaintiff to not be
awarded costs of the suit.
• However, in a recent decision in the case of Stanley Kaunga Nkarichia v
Meru Teachers College & another [2016] eKLR, Justice Gikonyo was of a
contrary view. He held as follows in this regard:
“The mere fact that a demand may not have been issued- and even if it
was, none was produced in court- is not, alone, a good reason to deny a
successful party his costs of the suit.”
(b) The Plaint:
• In an adversarial system as practised in Kenya, in order that a contested action
to be deemed to be properly constituted, there must be at least 2 parties:
The Plaintiff, who is the party that sues;
The Defendant, who is the party sued.
• A person cannot be a Plaintiff unless he has a vested interest recognised by
the law in the subject matter of the suit. This is what is commonly referred to as
a Plaintiff being required to have a cause of action.
• On the other hand, for one to be a proper Defendant in a suit, the Plaintiff must
claim some relief or declaration as against the person named as Defendant.
• A plaint is a statement of claim filed by a Plaintiff as a means of instituting
his/her claim.
• The plaint crystallizes the Plaintiff’s case by setting out in summary and in
concise terms, the nature of the claim, its basis and the relief sought by the
Plaintiff. Plaint is also referred to as statement of claim in some jurisdictions.
• By its very nature, the plaint accords the Defendant the fundamental right of
knowing the case he/she is facing.
• Order 4 of the Civil Procedure Rules 2010 makes various provisions relating to
the basic requirements of a plaint.
• Under Rule 1 of Order 4, and in compliance with the cardinal requirement that
a person sued must know the nature and basis of the claim against him, the
plaint must contain the following particulars: must be concise
o The name of the court in which the suit is brought;
, o The name, description and place of residence of the plaintiff, and an
address for service;
o The name, description and place of residence of the defendant, so far
as they can be ascertained;
o The cause of action and the place where the cause of action arose;
The Plaintiff should always claim in the one action every kind of
relief to which (s)he is entitled – be it damages, an injunction, a
declaration, or receiver or any other remedy.
A plaintiff will not be allowed to bring a second action against the
same defendant on the same cause of action in order to obtain a
relief which (s)he might have obtained in the first action.
Where the damages claimed are unliquidated, the Plaintiff need
not insert a specific figure but may claim damages generally.
The Court has the power to award interest under section 26 of
the Civil Procedure Act.
The Court also has powers to grant any other relief that it may
deem just and fit to grant provided that there are facts that
support the relief and the relief is necessary so as to give effect
to the judgment.
However, if a party seeks to raise a new claim which has not
been adumbrated in his/her pleading, in the course of trial, the
court will not give relief of that kind without first offering the
opposite side an opportunity to react.
A Plaintiff is not permitted to claim relief which is inconsistent
with the relief that (s)he has explicitly claimed.
Where a Defendant named in the plaint fails to either enter
appearance or to file a statement of defense, or does not appear
at the trial, the Plaintiff cannot seek or obtain a relief not
expressly prayed for in the plaint.
o Where the Plaintiff or Defendant is a minor or a person of unsound
mind, a statement to that effect; and
o 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.
Plaint is really a summary
DATE: Tuesday 1st August 2023 & Thursday 3rd August 2023
TOPIC: Principles underlying the right to know the case against you and
the right to a fair hearing in the context of the Civil Procedure Act,
Chapter 21 of the Laws of Kenya and the Rules made thereunder.
1. INTRODUCTION
(a) The Act:
Sections 19 to 22 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya are
the substantive provisions upon which the Rules that set out the framework to
ensure a level playing ground in civil litigation, avoidance of trial by ambush and
consistency of parties in the respective positions that they take at any given time
during the course of the proceedings.
(b) The Rules:
The Civil Procedure Rules, 2010 (“the Rules”) under the Civil Procedure Act are
made pursuant to Section 81 of the Civil Procedure Act and are primarily designed to
set out a flight path with respect to the conduct of civil litigation in both the High
Court and the Subordinate Courts.
2. ORDER 4, 5, 6 AND 7 OF THE CIVIL PROCEDURE RULES, 2010
• It is a cardinal pillar of the process of a fair hearing that all parties to a suit be
heard.
• In Kenya, that principle has a constitutional underpinning in Article 48 of the
Constitution of Kenya 2010.
• The right to access to justice is so fundamental that whereas Article 24 of the
said Constitution provides for the limitation of rights and fundamental freedoms
in certain circumstances, Article 25 of the said Constitution specifically states
that amongst the rights and freedoms which cannot be limited is the right to a
fair trial.
• The right to a fair trial entails the right of a party to present its case in court and
be heard in respect thereof and the corresponding right of the person sued to
also present its defense in Court and be heard in respect of the said defense.
• In the case of Kanda versus Government of Malaya [1962] AC 322, Lord
Denning stated that if the right to be heard is to be a real right which is worth
anything, it must carry with it a right in the accused man to know the case
which is made against him. He must know what evidence has been given and
what statements have been made affecting him; and then he must be given a
fair opportunity to correct or contradict them.
,• Whereas in the Kanda case, Lord Denning was expressing himself in a criminal
case context, his expression is true with respect to civil cases.
• The enactment of and the provisions contained in the Civil Procedure Act,
Chapter 21 of the Laws of Kenya, is primarily tailored to give effect to the
litigants right to a fair trial and to ensure that parties to a dispute are accorded a
framework under which their fundamental right to a fair hearing can be realized.
• The Act which is enacted to make provision for the procedure in civil courts and
the Rules made under section 81 of the Civil Procedure Act is a series of
provisions to facilitate a fair trial and a commonly known procedure so as to
ensure a level playing ground for the parties to a suit.
3. ORDER 4 – PLAINT
(a) The Demand Letter
• Before the filing of a suit, it is a general requirement that the party making a
claim sends a demand letter to the proposed Defendant setting out the nature
of the claim and what the proposed Defendant ought to do to avoid a suit being
filed.
• It is by reason thereof that Order 3 Rule 2 of the Civil Procedure Rules requires
that all suits filed under this Order should be accompanied by certain
documents amongst them a demand letter sent out prior to the filing of the
suit.
• The Black’s Law Dictionary, 8th Ed., page 462, defines a demand letter as: -
“A letter by which one party explains its legal position in a dispute and
requests that the recipient take some action (such as paying money
owned), or else risk being sued. Under some statutes (esp. Consumer-
protection laws), a demand letter is a prerequisite for filing a lawsuit.”
• The court in the case of Tom Odhiambo Achillah T/A Achilla T.O & Co
Advocates v Kenneth Wabwire Akide T/A Akide & Company Advocates &
3 others [2015] eKLR stated thus in this regard: -
“Order 3 Rule 2 of the rules referred to above provide that (material to
the objection raised by the 3rddefendant):
“2. All suits filed under rule 11 including suits against the government
except small claims, shall be accompanied by:-
a. ………
b. ……..
c. …….
, d. Copies of documents to be relied on at the trial including a
demand letter before action”
• It is usually the opinion of some courts that the failure or absence of a demand
and notice of intention to sue is a good reason for the Plaintiff to not be
awarded costs of the suit.
• However, in a recent decision in the case of Stanley Kaunga Nkarichia v
Meru Teachers College & another [2016] eKLR, Justice Gikonyo was of a
contrary view. He held as follows in this regard:
“The mere fact that a demand may not have been issued- and even if it
was, none was produced in court- is not, alone, a good reason to deny a
successful party his costs of the suit.”
(b) The Plaint:
• In an adversarial system as practised in Kenya, in order that a contested action
to be deemed to be properly constituted, there must be at least 2 parties:
The Plaintiff, who is the party that sues;
The Defendant, who is the party sued.
• A person cannot be a Plaintiff unless he has a vested interest recognised by
the law in the subject matter of the suit. This is what is commonly referred to as
a Plaintiff being required to have a cause of action.
• On the other hand, for one to be a proper Defendant in a suit, the Plaintiff must
claim some relief or declaration as against the person named as Defendant.
• A plaint is a statement of claim filed by a Plaintiff as a means of instituting
his/her claim.
• The plaint crystallizes the Plaintiff’s case by setting out in summary and in
concise terms, the nature of the claim, its basis and the relief sought by the
Plaintiff. Plaint is also referred to as statement of claim in some jurisdictions.
• By its very nature, the plaint accords the Defendant the fundamental right of
knowing the case he/she is facing.
• Order 4 of the Civil Procedure Rules 2010 makes various provisions relating to
the basic requirements of a plaint.
• Under Rule 1 of Order 4, and in compliance with the cardinal requirement that
a person sued must know the nature and basis of the claim against him, the
plaint must contain the following particulars: must be concise
o The name of the court in which the suit is brought;
, o The name, description and place of residence of the plaintiff, and an
address for service;
o The name, description and place of residence of the defendant, so far
as they can be ascertained;
o The cause of action and the place where the cause of action arose;
The Plaintiff should always claim in the one action every kind of
relief to which (s)he is entitled – be it damages, an injunction, a
declaration, or receiver or any other remedy.
A plaintiff will not be allowed to bring a second action against the
same defendant on the same cause of action in order to obtain a
relief which (s)he might have obtained in the first action.
Where the damages claimed are unliquidated, the Plaintiff need
not insert a specific figure but may claim damages generally.
The Court has the power to award interest under section 26 of
the Civil Procedure Act.
The Court also has powers to grant any other relief that it may
deem just and fit to grant provided that there are facts that
support the relief and the relief is necessary so as to give effect
to the judgment.
However, if a party seeks to raise a new claim which has not
been adumbrated in his/her pleading, in the course of trial, the
court will not give relief of that kind without first offering the
opposite side an opportunity to react.
A Plaintiff is not permitted to claim relief which is inconsistent
with the relief that (s)he has explicitly claimed.
Where a Defendant named in the plaint fails to either enter
appearance or to file a statement of defense, or does not appear
at the trial, the Plaintiff cannot seek or obtain a relief not
expressly prayed for in the plaint.
o Where the Plaintiff or Defendant is a minor or a person of unsound
mind, a statement to that effect; and
o 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.
Plaint is really a summary
