CUEA CLS 207

CIVIL PROCEDURE 2
LESSON 1: PLEADINGS-THE PLAINT
CHARLES B G OUMA
LECTURER, FACULTY OF LAW, CUEA

Lesson Outline
Part 1

A recap on pleadings generally

Part 2

The Plaint

Definition
Use
Formal requirements
Substantive requirements
Verification
Accompanying Documents
Presentation to court
Return of the plaint
From the courts
Checklist

CUEA CLS 207

CIVIL PROCEDURE 2
LESSON 1: PLEADINGS-THE PLAINT
PART 1
RECAP OF CIVIL PROCEDURE 1:PLEADINGS
GENERALLY

A RECAP OF CLS 203 CP 1:PLEADINGS GENERALLY

1.
2.
3.
4.
5.
6.
7.

Definition
Purpose
Types
Rules
Verification
Documents accompanying
Content/substantive
requirements

1. Formal requirements
Structure
Signing
Dating

2.
3.
4.
5.
6.

Responses
Close of pleadings
Service
Amendment
Striking out

CUEA CLS 207

CIVIL PROCEDURE 2
LESSON 1: PLEADINGS-THE PLAINT
PART 2

Lesson Objectives
At the end of this lesson, the participant should be able to
Define a plaint
Determine what civil proceedings can be originated by way of plaint
List and explain the formal requirements of a plaint
List and explain the substantive requirement of a plaint
List the documents that must accompany a plaint
Describe the process of presenting a plaint to the court and explain
the role of the registry on the receipt of a plaint
Use case law to illustrate the provisions of Order 4 and related
provisions on plaints
Explain the consequences of non compliance with the formal and
substantive requirements of a plaint
Draft a plaint that is compliant with the Civil Procedure Rules
Prepare a check-list of the formal and substantive requirements for
a CPR-Compliant Plaint

Readings
Steve Ouma ,A commentary on The Civil Procedure Act Cap 21, 2nd
Edition , 2015 Law Africa pp 143 149
Order 4 Civil Procedure Rules
Various cases cited in the body of this presentation
See course outline for further readings

What is a plaint?
Not defined in the CPA or CPRs
An Online definition
In English practice. A private memorial tendered in open court to the
judge, where the party injured sets forth his cause of action. A proceeding
in inferior courts by which an action is commenced ...
In the Civil law. A complaint; a form of action, . This word is the English
equivalent of the Latin que-rela,. http://thelawdictionary.org/plaint/
Steve Ouma: P 143 a formal legal document that sets out the basic facts
and legal reasons that the plaintiffs believe are sufficient to support a claim
against the defendants which entitles the plaintiffs to a remendy

Definition of pleading
Section 2
pleading includes 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;
Section 19 CPA : Institution of suits
Every suit shall be instituted in such manner as may be prescribed by
rules.

Suits to be instituted by plaint unless

otherwise prescribed
Order 3 Rule 1(1)

Every suit shall be instituted by presenting a plaint to the

Court, or in such other manner as may be prescribed
From the foregoing, a plaint is a form of pleading
The preferred method of instituting suits under the CPA and
CPR is by way of plaint
Plaintiff: The person suing
Defendant: The Person sued

Institution of suits
Section 19 CPA : Institution of suits
Every suit shall be instituted in such manner as may be
prescribed by rules.
Order 3 Rule 1(1)
Every suit shall be instituted by presenting a plaint to the
Court, or in such other manner as may be prescribed

Formal requirements of a plaint

Oder 2 Rule 2
2(1)
Every pleading shall be divided into paragraphs
numbered consecutively,
each allegation being so far as appropriate contained in a separate
paragraph.
(2)(2)
Dates, sums and other numbers shall be expressed in figures and not
words.

Formal requirements of a plaint

Order 3
3(2) The claim shall indicate at the heading the choice of track;
namely small claims, fast track or multi-track.
Order 4
4(8) The plaintiff shall present as many copies of the plaint as there
are defendants.
Signed and dated
Want of form
Order 2 R 14. No technical objection may be raised to any pleading on the
ground of any want of form.

Substantive requirements of a plaint

Order 2 Rule 1 The general rules of pleadings apply
Order 4 Rule 1 Particulars of plaint.
Order 4 Rule 3 if it is a money suit, the precise amount claimed
Order 4 R 4 Capacity of parties.
Order 4 R 5 Defendants interest and liability to be shown.
Order 4 Rule 6 Statement of relief claimed.
Signed and dated

Documents that must accompany a plaint

Order 4 Rule 2
Verifying affidavit
Written authority to swear affidavit on behalf of coplaintiffs
Order 5 Rule 5
Summons
Order 3 Rule 2
Documents to accompany suit .
But See proviso

Presentation of the Plaint

Order 3 Rule 1and 2

Plaints to be presented for filing at the civil Registry during office hours
Filing fees to be submitted
Plaint to be date-stamped
Plaint to be given a course number
Oder 47 has additional provisions on institution of suits in the High Court at District Registries

Role of the registry

Cross check to see if plaint filed in the right court

Cross check to see if all accompanying documents are filed
Cross check to see if formal requirements are complied with
Asses and receive filing fees
Assign a number
Date stamp
Ensure there are sufficient copies
Issue summons upon signature by appropriate officer

Return of Plaint
[Order 4, rule 9.]
9. (1) The plaint may at any stage of the suit be returned to be
presented to the court in which the suit should have been
instituted.
(2) On returning a plaint the judge shall endorse thereon the date
of its presentation and return, the name of the party presenting it
and a brief statement of the reasons for returning it.
This should be read together with Order 47(District Registries)
and Section 11-18 CPA(Place of suing), Part 11 Magistrates Courts
Act 2015 and other jurisdictional statutes

Consequences of non-compliance
Kariuki Network Limited & Another versus Daly & Figgis Advocates
Civil Application No. Nai 293 of 2009); The application of the
overriding objective principle does not operate to uproot established
principles and procedures but to embolden the court to be guided by
a broad sense of justice and fairness
Githere V. Kimungu [1976 1985] E.A. 101,
..the relation of rules of practice to the administration of justice is
intended to be that of a handmaiden rather than a mistress and that
the court should not be too far bound and tied by the rules, which are
intended as general rules of practice, as to be compelled to do that
which will cause injustice in a particular case.

Consequences of non-compliance
Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission
& 6 others [2013] eKLR
Deviations from and lapses in form and procedures which do not go to the jurisdiction of
the Court, or to the root of the dispute or which do not at all occasion prejudice or
miscarriage of justice to the opposite party ought not be elevated to the level of a
criminal offence attracting such heavy punishment of the offending party, who may in
many cases be innocent since the rules of procedure are complex and technical.
Instead, in such instances the Court should rise to its highest calling to do justice by
sparing the parties the draconian approach of striking out pleadings. It is globally
established that where a procedural infraction causes no injustice by way of injurious
prejudice to a person, such infraction should not have an invalidating effect. Justice must
not be sacrificed on the altar of strict adherence to provisions of procedural law which at
times create hardship and unfairness.
The general trend, following the enactment of Sections 1A and 1B of the Civil Procedure
Act, Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the
Constitution, is that courts today strive to sustain rather than to strike out pleadings on
purely technical grounds as will shortly be demonstrated. This trend has now been
adopted by recent legislations and procedural rules

From the courts: Verifying Affidavits: Under

the Pre 2010 Rules
Eastern and Southern Africa Development Bank -vs- African Greenfields
Limited and 2 others Milimani HCCC No 1189 of 2000)
Narok Transit Hotel Limited and Another -vs- Barclays Bank of Kenya
Limited. Onyango-Otieno J. (Milimani HCCC No 12 of 2001),
Glad Ak Finance Limited -vs- Rosaline Macharia Milimani Bankruptcy
Cause No 13 of 2000)
Jayantkumar Shah -vs- Chandulal Mohanlal Shah and Another, (Nairobi
HCCC No 1230 of 1997)
The courts struck out affidavits that did not specify the place of swearing in
the jurat. Formal and substantive requirements are mandatory

From the courts: Verifying Affidavits: Under

the Pre 2010 Rules
Tom Okelo Obondo -vs- National Social Security Fund. Ringera J (Milimani HCCC
No 1759 of 1999)(Ringera j)( as he then was)
Microsoft Corporation v Mitsumi Computer Garage Ltd & another [2001]
eKLR)(Ringera j)( as he then was)

James Njoroge Karagu -vs- Hannah Njoki. Commissioner of Assize Visram

(as he then was) (Nairobi HCCC No 713 of 1996
The Matter of Central Bank of Kenya and Reliance Bank Limited.
Commissioner of Assize Gacheche (Milimani Misc. Application No 427 of
2000 )
See also KARI vs Farah Ali & anor 2011 EKLR Kodak EA Ltd v Isaiah Ngotho
2004 EKLR Trust Bank vs Amalo Company Ltd 2009KLR 63
Objections to the validity of verifying affidavits are mere technicalities
and are curable

From the courts: On verifying affidavits

Jefitha Muchai Mwai v Peter Wangio Thuku [2015] eKLR A verifying
affidavit for a counterclaim was not necessary under the old rules. It
is however mandatory under the new rules subject to the application
of article 159 CoK 2010
Skair Associates Architects v Evangelical Lutheran Church of Kenya &
4 others [2015] eKLR The court has moved from the practise of
striking out plaints on the ground that a Verifying Affidavit is defective
in view of the provisions of Article 159 (2) (d) of the Constitution of
Kenya, 2010 that mandate the court to administer justice without
undue regard to procedural technicalities.

From the courts: On verifying affidavits

Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] eKLR Any
authorised officer of a corporation can swear a verifying affidavit.The
objection(about a verifying affidavit) is a technicality and should be refused
under the Constitution of Kenya, 2010. See the case of Kamani vs. Kenya
Anti-Corruption Commission (2010) e KLR, where the Court of Appeal
departed from its earlier obstinate stance on technicalities and applied
the Oxygen principle.
And my take on the objection to the supporting affidavit is this. Under the
rules, an affidavit will not be defeated merely because an authority under
the seal of a corporation has not been filed contemporaneously with the
application. The requirement of the law is that such authority should be
filed before the hearing. Therefore, it is sufficient, in an interlocutory
application, for the deponent to depose in the affidavit that he has the
authority to swear the affidavit on behalf of the corporation.

From the courts: Under the Pre 2010 Rules

Summons to Enter Appearance
Karandeep Singh Dhilon & another vs- Nteppes Enterprises Ltd &
another (2010) eKLR where the learned judge ordered a plaint struck
out where no summons had been taken out and/or served on the
DefendantIt in my view follows, failure to have summons issued
and served is as bad, if not worse, as failure to extend the same. A
plaint filed in court on its own, carries no power to summon a
Defendant to court. The plaint will lie there impotently. It will alone
have no power to bring the parties before the court for its
adjudication.

From the courts: Pre-2010 Rules

Summons To Enter Appearance
Firenze Investments Limited vs Kenya Way Limited .[2001] EKLR
A summons to enter Appearance is not a piece of paper of little
consequence. It is a necessary and vital document governing the
timetable of pleadings and the Rules governing Issuance and Service
thereof must be complied with for the pleadings to acquire
legitimacy. Such seriousness was underscored by the Court of appeal
in CA 85/96 Uday Kumar Chandullal Rajani & ors t/a LIT Petrol
Station vs. Charles Thaithi (UR)

From the courts. Post 2010 Rules

Summons to Enter Appearance
Grace Wairimu Mungai v Catherine Njambi Muya [2014] eKLR
Failure to take out and serve STEA is no technicality. It is fatal
The provisions of order 5 Rule 1 are couched in mandatory terms and
cannot be taken casually and/or lightly. In my view 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.

From the courts: Post 2010 Rules

Summons to Enter Appearance
Grace Wairimu Mungai v Catherine Njambi Muya [2014] EKLR
Having regard to the applicable provisions which I have highlighted above it is my view
that 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 serving within the
prescribed time frames an equally elaborate procedure for extending the validity of the
summons is out lined. I am unable to accept that order 5 Rule 1 would, fall to be
considered as providing a mere procedural technicality as suggested by the plaintiff. It
does in my view substantively provide 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 and it would be my holding that where no summons have 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. In my view 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.

From the courts: Post 2010 Rules.

Failing to file documents accompanying Suit
Raila Odinga & 5 Others vs IEBC & 3 Others, Supreme Court of Kenya, Petitions
Nos. 3,4 and 5 of 2013 (2013) eKLR,
Johana Kipkemei Too v Hellen Tum [2014] EKLR
Failure to file accompanying documents can be fatal.
The Civil Procedure Rules of 2010 require parties to furnish their evidence in
advance before the commencement of the trial. These provisions are found in
Order 3 , Order 7 and Order 11 of the Civil Procedure Rules. Under Order 3 Rule
2, when filing suit, one needs also to file a Verifying Affidavit, list of witnesses,
statements of witnesses (excluding expert witnesses), and copies of documents
to be relied upon at the trial. There is a proviso that the written statements may
with the leave of the court be availed at least 15 days prior to the Trial
Conference envisaged under Order 11 of the Civil Procedure Rules. The same
applies to a defendant when filing defence and counterclaim (if any). The relevant
provision is Order 7 Rule 5.

From the courts: Post 2010 Rules.

Failing to file documents accompanying Suit
Johana Kipkemei Too v Hellen Tum [2014] EKLR
There is no provision in the rules that permits the court to accept a list of
witnesses or documents filed outside the time lines provided in Order 3
Rule 7 and Order 7 Rule 5. The provisions of Order 3 and Order 7 are meant
to curb trials by ambush. The objective is to make clear to the other party,
the nature of evidence that he will face at the trial. There is however no
clear cut provision setting out the consequences of failure to comply. The
Rules do not state that such party will be debarred from relying on
witnesses or documents which were not furnished at the filing of the
pleadings, or later filed with the leave of the court. But the Constitution
under Article 50 (1), provides that every party deserves a fair trial, and it is
arguable, that a trial will not be a fair trial, if a party is allowed to hide his
evidence and ambush the other party at the hearing.

From the courts: Post 2010 Rules.

Failing to file documents accompanying Suit
Abdalla Ali Bajaber v Mangale Dzombo Ngoka & Another [2012] KLR
Where counsel fails to file the accompanying documents the court
will not visit the omission on the party unless the party is at fault

From the courts: Post 2010 Rules

Technicalities Generally
Tom Mboya Onyango v Fredrick Otieno Outa & 3 Others [2011] EKLR
Any defect under order 3 rule 2 is curable under the provisions as the
statements can be furnished after the requisite stipulated
Wilfred Korir v Faridun Suleiman Abdalla & 4 Others [2012] eKLR
Where there is negligence or indolence on the part of a party or their
advocates the court would not use the Overriding Objective of the
provisions of article 159 to assist such a party. Article 159 of the CoK
2010 requires that there should be no undue regard to technicalities
of procedure but it also requires that there should be no undue delay

From the courts: Post 2010 Rules

Technicalities Generally
Mahat Carl Johnson V Marlborough Properties Ltd [2012] eKLR
It is clear that where there is a clear procedure of redress of any
particular grievance prescribed by the constitution or an Act of
parliament that procedure should be strictly followed. To fail to
adhere to a procedure provided, in my view, would amount to abuse
of the process of the court which may invite the wrath of the inherent
jurisdiction of the Court.

From the courts: Post 2010 Rules

Technicalities Generally
African Safari Club Limited v Safe Rentals Limited 2010 KLR 48
Rule 5(2)of the court of appeal rules is subject to the overriding
objective and the Court in exercising its power under the rule had to
give effect to the overriding objective as the court derived the power
to prescribe the two requirements from rule 5(2)(b) and also from the
Appellate Jurisdiction Act. But the court has a duty to treat both
parties with equality when applying the principle of Overriding
Objective

Place of technicalities
Substantially relaxed in the 2010 rules and the CoK 2010
But not to be disregarded
Procedural errors cast counsel in bad light and could be costly in
terms of reputation

What do you do when things go wrong?

Candidly concede the error
Apply for leave to amend to cure the defect in the plaint
Apply for leave to supply the omission
Act at the earliest opportunity
Apply for extension of time to file missing documents that should
accompany the suit
Raise the issue at the pretrial conference so that it is dealt with as an
interlocutory matter

Check-List for Plaints

Suit correctly instituted by way of plaint
Formal requirements
Substantive requirements complied with
Accompanying Documents complied with
Signed and dated
Place of suing is correct
Necessary parties in , no unnecessary parties
Enough copies

Handouts
Sample Plaint
Sample Verifying Affidavit
Sample List of documents
Sample List of witnesses
Sample Summons to Enter Appearance

1/25/2017

KSL CPD 2016 CHARLES B G OUMA

38

THANK YOU FOR YOUR PARTICIPATION

From Your Course Facillitator

Charles B G Ouma

1/25/2017

KSL CPD 2016 CHARLES B G OUMA

39

END OF LESSON 1
CHARLES B G OUMA LLB MLB Dip Law
LECTURER:FACULTY OF LAW