CIVIL PROCEDURE
LPR 203
INTRODUCTION
WEEK ONE
OBJECTIVE
By the end of this class, the student should be able to:
a) Distinguish between substantive law and procedural law
b) Explain the different sources of Civil procedure Laws
c) Illustrate on the doctrines of Civil procedure
d) Demonstrate understanding of jurisdiction and terms
e) Expound on the overriding objectives
SOURCES OF CIVIL PROCEDURE LAWS, 2010
• Constitution of Kenya, 2010
• The Civil Procedure Act Cap 21
• The Civil Procedure Rules – made by Rules Committee pursuant to s81.
• Civil Procedure (Court Annexed Mediation) Rules, 2022
IMPORTANCE OF CIVIL PROCEDURE
• Substantive law
• Defines legal rights and duties, nature of right, legal effect and how it can be
terminated.
• Procedural law / Adjective law
• Sets out the rules for enforcing procedural law
• Standardizes procedure and provides consistency
• Law of evidence, civil procedure, criminal procedure
• Accessory to substantive law
• Civil cases – involves civilians and excludes direct participation of the state
• Criminal cases – enforces criminal law
KENYAN LEGAL SYSTEMS
• Adversarial system
• Bilateral
• Party prosecution – party competent to litigate
• Representation
• Parties determine issues for determination
• Role of the court is limited to adjudication/resolution of disputes – very passive
CIVIL PROCEDURE ACT, CAP. 21
• Applies to proceedings in the High Court and, subject to the Magistrates' Courts
Act (Cap. 10), to proceedings in subordinate courts.
• Divided into 11 parts:
• Part 1: Preliminary (Sections 1-4)
• Part II: Suits in General (Sections 5- 27)
• Part III: Execution (Sections 28-51)
• Part IV: Incidental proceedings (Sections 52-55)
• Part V: Suits in Particular Cases (Sections 56-58)
• Part VI: Special proceedings (Section 59-62)
• Part VII: Supplemental proceedings (Sections 63-64)
• Part VIII: Appeals to the High Court and Court of Appeal (Sections 65-79G)
• Part IX: Review (Section 80)
• Part X: Rules (Section 81)
• Part XI: Miscellaneous Provisions (Sections 82-100)
CIVIL PROCEDURE RULES
• Are divided into Orders, Rules and sub-rules, uses roman numbers
• Are intended to provide for procedure
• Where the rules are silent, the court is not prevented from adjudication
• It is grounded on the rules on natural justice
• Unless expressly provided, a party should not be denied an opportunity to
defend themselves
DOCTRINES OF CIVIL PROCEDURE -
JUSTICIABILITY
• Justiciability – whether the matter is capable of being decided by the court
and suitable before the court
• Is the time of judicial intervention too early?
• What is the substance of the issues in the case?
• Is it a collusive case ? – e.g. two people agreeing to file a suit so that they can be
paid yet there was no dispute in the first place.
• Is the person suing party to the dispute? Have they shown how they will be harm
and capable of being remedied? ( Mumo Matemu v. Trusted Society of Human
Rights Alliance & 5 Others, Civil Appeal No. 290 of 2012; [2013] eKLR t)
• Is there an existing dispute for adjudication by the court?
DOCTRINES OF CIVIL PROCEDURE - JURISDICTION
• Refers to authority of a court to
determine a case
• Is the party before the right court? • Does the court have jurisdictional
• Supreme Court - Article 163
Authority?
• Subject matter
• Court of Appeal – Article 164
• Jurisdiction in personam – on a person
• The High Court – Article 164
• Jurisdiction in rem – against a thing
• The ELC – ELC Court Act
• Quasi in rem- attachment / garnishee
• The ELRC – ELRC Court Act
• Geographical
• Subordinate courts – Magistrates Courts
Act • Monetary/ pecuniary
DOCTRINES OF CIVIL PROCEDURE – AUDI
ALTERAM PARTEM
DOCTRINES OF CIVIL PROCEDURE – CAUSE
OF ACTION
• Facts or combination of facts that gives the person the right to seek judicial
redress or relief from a court – the wrong suffered by a party
• Should be pleaded and proved
• Material facts vs res gestae (events, circumstances, remarks, etc. which
relate to a particular case, especially as constituting admissible evidence in a
court of law.)
• The court determines issues arising from the cause of action
OPERATIVE TERMS
• Inherent jurisdiction • Remedies/reliefs/damages • Defendant
• Parties to a suit • Declaratory suits • Petitioner
• Abuse of the court process • Judgment • Next friend/kin
• Limitation of Action • Decree • Administrator/ legal
• Stay (of proceedings/execution) • Liability representative
• Locus standi
• Costs • Injunctions
• ADR
• Taxation • Plaintiff
• Pleading • Claimant
• Admissibility • Appellant
• Striking out • Applicant
• Service of documents • Respondent
OVERRIDING OBJECTIVES – 1A
• Also known as oxygen principles
• to facilitate the just, expeditious, proportionate and affordable resolution of
the civil disputes
• 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
• 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
OVERRIDING OBJECTIVES – 1B
• 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.
OVERRIDING OBJECTIVES – 3A
• 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.
JURISDICTION
Owners of the Motor Vessel ‘Lillian” (s) versus
Caltex Oil (Kenya) Ltd [1989] KLR1, Original
The Court stated as follows: Appellate
“Jurisdiction is everything. Without it, a court has no International
power to make one more step. Where a court had no
jurisdiction, there would be no basis for a continuation Territorial
of proceedings pending other evidence. A court of law Pecuniary
downs tools in respect of the matter before it the
Exclusive
moment it holds the opinion that is without
jurisdiction” Concurrent
LIMITS OF JURISDICTION
• Samuel Kamau Macharia & Another v. Kenya commercial Bank Limited & 2
Others, Sup. Ct. Application 2 of 2011 this Court remarked as follows:
“A Court’s jurisdiction flows from either the Constitution or legislation, or
both. Thus, a Court of law can only exercise jurisdiction as conferred by the
Constitution, or other written law. It cannot arrogate to itself jurisdiction
exceeding that which is conferred upon it by law.…[The] issue as to whether
a Court of law has jurisdiction to entertain a matter before it, is not one of
mere procedural technicality; it goes to the very heart of the matter, for
without jurisdiction, the Court cannot entertain any proceedings.”
ELC/ELRC JURISDICTION
• Republic vs Karisa Chengo & Others, Supreme Court Petition No. 5 of 2015
[2017]eKLR where it held as follows:
“[52] From a reading of the Constitution and these Acts of Parliament, it is clear that
a special cadre of courts, with sui generis jurisdiction, is provided for. We therefore
entirely concur with the Court of Appeal’s decision that such parity of hierarchical
stature does not imply that either Environment and Land Court or Employment and
Labour Relations Court is the High Court or vice versa. The three are different and
autonomous courts and exercise different and distinct jurisdictions. As Article
165(5) precludes the High Court from entertaining matters reserved to the
Environment and Land Court and Employment and Labour Relations Court, it should,
by the same token, be inferred that the Environment and Land Court and
Employment and Labour Relations Court too cannot hear matters reserved to the
jurisdiction of the High Court.”
• - SUIT WAS TRANSFERRED TO ELRC
WHEN TO RAISE OBJECTION
• In the Matter of Interim Independent Electoral Commission [2011] eKLR as follows:
“[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute
law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of
Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which
bears the following passage (Nyarangi, JA at p.14):
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest
opportunity and the Court seized of the matter is then obliged to decide the issue right away on the
material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”
[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply
the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction
through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of
Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme
Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”