ATP- 100

CIVIL LITIGATION

TOPIC 2 – Taking of instructions

9th Feb. 2026
Course Instructor: Caroline Oduor
Topic Objectives

 Establish advocate-client relationship

 Take client instructions
 Conduct effective client interview
 Assess litigiousness or otherwise of a case
 Preliminary considerations before filing a suit.
(Cause of action, jurisdiction, place of suing,
limitation of actions, res judicata, ethical
considerations, conflict of interest)
 Preparation of a legal opinion
 Formulation of a demand letter
Effective client interview

• Introduction of parties
• Client’s comfort
• Venue (office, hospital, police station, prison)
• Privacy
• Environment
• Allocate sufficient time
• Allow client to do the talking and listen
• Make follow up questions and clarifications
• Ask for documents (Check list)(ID, Address,
particulars of pleadings)
Effective client interview

• Witnesses / Expert witnesses

• Carefully show compassion and empathy
• Exhibit grasp of your trade / confidence
• Discuss legal fees projection as per ARO
• Consultation fee for meeting
• Preliminary advice with caution
• Post interview searches
• Manage client expectation
Instructions

• Basis of Advocate – client relationship (instruction

letter, retainer agreement, e-mail, exchange of
letters, verifying affidavit etc)
• Authority to issue instructions (Minor, person of
unsound mind, Company, NGO, agent vs.
principal, unincorporated body, state corporation)
– Nderitu & Partners Advocates case.
• Instructions in the course of Conduct of matter
(ostensible authority)
• Trial court, 1st and subsequent appeals (Barclays
bank of Kenya case, filing record of Appeal)
Instructions

• Instructions by an Administrator on behalf

of others – Samuel Kinoti case
• Consents and compromise of suits – client’s
general instructions (R vs. District land
registrar case)
• Guiding principles (Good faith and client’s
best interest)
• Fees and taxation
litigiousness or otherwise of a case

• Article 159 of the Constitution, Alternative Justice

system (AJS)(Negotiation, Reconciliation, mediation,
arbitration, traditional dispute resolution etc)
• Section 59B and 59C of Civil Procedure Act
• Section 60 of the Civil procedure Act (Stating case for
opinion of court)
• Negotiation in the course of litigation (Without
prejudice correspondence) – Millicent Wambui Case
• Non starter case (frivolous, vexatious, lacking bonafides,
hopeless)
Preliminary considerations

• Cause of action
• Jurisdiction
• Place of suing
• limitation of actions
• Res judicata
• Ethical considerations
• Conflict of interest
• Exhaustion of remedy doctrine
Cause of action

• Letang v Cooper [1964] 2 All ER 929 at 934, Lord Diplock

defined cause of action as follows: -
“A cause of action is simply a factual
situation the existence of which entitles
one person to obtain from the court a
remedy against another person.”

• Exercise of professional judgement based on the facts

of the case applied to the law.
• Nature of the suit (assess necessary components
prescribed in law)
• Whether reasonable cause of action or defence –
Order 2 Rule 15
Cause of action

• In DT Dobie & Co (K) Ltd V Muchina, [1982] KLR, the

Court of Appeal defined the term “reasonable
cause of action” to mean “an action with some
chance of success when allegations in the plaint
only are considered. A cause of action will not be
considered reasonable if it does not state such
facts as to support the claim prayer. …”

• A cause of action – “referred to an act on the part

of the defendant which gave the plaintiff a cause
of complaint”.
Place of suing

• Section 11 – 15 of the Civil Procedure Act

• Court of lowest grade competent to try suit
• Suit to be instituted where subject matter is situate subject to
pecuniary or other lawful limitations – (immovable
properties). What of immovable property situate in more than
one court locality?
• Suits for compensation for wrong done to a person or to
movable property – where defendant resides or where
wrong was done
• Suit to be instituted where defendant has a permanent
dwelling or temporary residence
• A Corporations/Company’s office is where it carries on
business at its principle office or where it also has a
subordinate office
• For contracts; (i) where made, (ii) to be performed, (iii) where
performance is expressly or impliedly payable
limitation of actions

Limitations of Actions Act, Cap 22

• Section 4. (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 (arbitration)

• …. (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.
An action for libel or slander may not be brought after the end of
twelve months from such date.
• Section 7 – Action to recover land, 12 years
• PART III – EXTENSION OF PERIODS OF LIMITATION
limitation of actions

• Principles underlying limitation law include;

 Loss of evidence
 Inordinate delay damages interest of justice
 Public policy considerations - Protracted disputes
over rights and obligations
 Prolonged uncertainty of matter to parties
 Witnesses may not be available to testify
 Loss of witness memory thus unreliable
limitation of actions

• Potter, JA observed in the case of

Gathoni vs Kenya Cooperative
Creameries Limited (Civil Application
No. 122 of 1981):
“The law on limitation is intended to
protect defendants against unreasonable
delay in bringing of suits against them. The
statute expects the intending plaintiff to
exercise reasonable diligence and to take
reasonable steps in his own interest.”
Statute specific limitations

• e.g– Employment Act

• Ndirangu –v- Henkel Chemicals E. A. Ltd (2013) eKLR court
stated: “Section 90 of the Act now regulates limitation
time in employment contracts to three years ……. Section
4(1) of the Limitation of Actions Act is not applicable
and therefore the claimant cannot be heard to argue
that the limitation was six years.”

• Elias Kibathi & another v Attorney General [2021] eKLR

“The provision of Section 90 does not specifically refer to part III
of Limitation of Actions Act, Cap. 22 and does not state
expressly that enlargement of time, if sought on sound grounds
may not be extended. The petitioner has not therefore
established any unconstitutionality, illegality or unlawfulness in
this regard”.
Statute specific limitations

• Public Authorities Limitations Act (PALA),

section 3(1) and (2) (suits against
Government and local Authorities
limited to 1 year for tort and 3 years for
contracts).
• Jones M. Musau & another v Kenya
Hospital Association & another [2015]
eKLR - suit preceded by complaint at
the Medical Practitioners and Dentists
Board.
Res Judicata & Sub judice

• Sections 6 & 7 of the Civil Procedure Act

• Kenya Commercial Bank Limited & another v Muiri Cofee
Estate Limited & 3 others [2016] (KLR)

“52. Res judicata is a doctrine of substantive law, its essence

being that once the legal rights of parties have been judicially
determined, such edict stands as a conclusive statement as to
those rights. It would appear that the doctrine of res judicata is
to apply in respect of matters of all categories, including issues
of constitutional rights.”
“The doctrine prevents a multiplicity of suits, which would
ordinarily clog the Courts, apart from occasioning unnecessary
costs to the parties; and it ensures that litigation comes to an
end, and the verdict duly translates into fruit for one party, and
liability for another party, conclusively”.
ethical considerations

• Moral principles governing behavior

• Section 4 (f) of the Law Society of Kenya Act
“determine, maintain and enhance the
standards of professional practice
and ethical conduct, and learning for
the legal profession in Kenya”.
• Gazette notice no . 5212
the Law Society of Kenya Act
(No. 21 of 2014) code of standards of professional
practice and ethical conduct –
ethical considerations

• Independence - Advocate should be free from

undue influence arising from political, financial,
career, personal, emotional or other
considerations in a matter.

• Fidelity to the law – The legal professional not to

subvert or connive in the subversion of the law or
due process in his/service of the client’s interest.

• Honesty and integrity encompasses civility,

professional integrity, high personal moral
standards, and respect for others
ethical considerations
• Fidelity to the law - The legal professional must therefore
never subvert or connive in the subversion of the law or due
process in his/service of the client’s interests.

• Advocate – client confidentiality; The right and duty of the

legal professional to keep confidential information received
from and advice given to the client is an indispensable
feature of the rule of law and essential to public trust and
confidence in the administration of justice. It enhances the
client’s trust in the legal professional and facilitates full and
frank communication between the Advocate and the client.
Conflict of interest

• Conflict of interest - Advocate not to advise or

represent both sides of a dispute and shall not
act or continue to act in a matter when there
is a conflicting interest, unless he/she makes
adequate disclosure to the client(s) and
obtains the client’s consent.
• Instances include where Advocate is a party;
related to a party; is a material witness; has a
financial interest in the outcome of the case;
had previously acted as counsel for the party
opposing client etc.
Exhaustion of remedy doctrine

• Geoffrey Muthinja Kabiru vs. Samuel Munga Henry (2015)

eKLR, “ it is imperative that where a dispute resolution
mechanism exists outside courts, the same be
exhausted before the jurisdiction of court is invoked.
Courts ought to be foras of last resort…”
 Exceptions (1. Issues that verge on constitutional
interpretation especially in virgin areas or where an important
constitutional value is at stake; 2. party seeking court’s
intervention does not have audience before the alternative
forum).
 Example; Political disputes resolutions to commence at
Political Party’s internal dispute resolution mechanism before
instituting a claim at the political parties dispute tribunal.
 Refer to Mombasa High Court Case No. 159 of 2018.
legal opinion

• Brief rendition of facts

• Outline issues to be addressed
• Analyse each issue by considering facts of
the case and applicable law (the Rule)
• Point out strength and weakness of case in
the course of analysis
• Cite previous recent decisions where
appropriate
• Discuss remedies available in law and
overview of legal process.
Demand Letter

• Date, right addressee, reference issue in contention

• Clearly identify the client
• Brief set of facts
• State subject of contention
• If claim for libel or slander, state the defamatory statements
• State any intervening incidences and/or communication
• State breaches and consequential effect on client
• Set forth the demand clearly
• State time frame for response and next steps
• Attach documents where appropriate but with caution
• Use professional language and tone
• Communicate effectively
• Take note of your client’s interest i.e to resolve the dispute
• Copy letter to client and other relevant offices where necessary
Demand Letter

• Should lack of a demand letter disentitle a party to

costs? Stanley Kaunga Nkarichia v Meru Teachers
College & another [2016] eKLR
• Does lack of a demand letter equate to ‘good reason’
as per the proviso to section 27 of the Civil Procedure
Act?
• What is the effect of lack of a demand letter in view of
Order 3 Rule 2 (d)?
• Whether a suit can be struck out for failing to comply
with Order 3 Rule 2 (d)?
• Must the defendant have notice of intention to be sued
always?
Questions ? Clarifications?
Comments?