CIVIL PROCEDURE

Khaseke M. Georgiadis

26/05/2016

NATURE OF THE CIVIL PROCEDURE

It is the procedural law that sets out the rules and

standards that courts follow when adjudicating civil
lawsuits.
These rules govern how a lawsuit or case may be
commenced, what kind of service of process (if any) is
required, the types of pleadings or motions or
applications, and orders allowed in civil cases, the timing
and manner of depositions and discovery or disclosure,
the conduct of trials, the process for judgment, various
available remedies, and how the courts must function.
The primary source of the law governing civil procedure is
the Civil Procedure Act and the Rules made thereunder.

NATURE OF CPRCONTD

There are also other Practice Directions which

supplement the Rules such as;
(i) 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.- (Gazette Notice No. 5178)
(ii) PRACTICE DIRECTIONS RELATING TO CASE MANAGEMENT IN THE
COMMERCIAL AND ADMIRALTY DIVISION OF THE HIGH COURT AT
NAIROBI(Gazette Notice No.5179)
(iii) PRACTICE DIRECTIONS RELATING TO THE FILING OF SUITS,
APPLICATIONS AND REFERENCES IN PROPER COURTS(GAZETTE
NOTICE NO. 1756)

Other Procedural laws in Civil

Cases

It is also important to note that there are other

procedural laws which deal with certain
aspects of the civil procedure especially on the
time within which certain civil actions should
be instituted and the forum. These;
(i) Limitation of Actions Act Cap. 22,
(ii) Law Reform Act Cap. 26
(iii) Magistrates Court Act, 2015

Applicability of the
CPR

The Civil Procedure Act and the Rules apply in;

i) The High Court
ii) The Magistrates Courts Section 1(2)
CPA
On
the
other
hand,
the
Appellate
Jurisdiction Act deals with the appeals
before the Court of Appeal

Other Civil proceedings

There are other proceedings, through of civil

nature, governed by different and separate
procedural rules. These are:
i) Succession proceedings Law of Succession
ii) Matrimonial proceedings Matrimonial Cause
Rules
iii) Election proceedings Elections Act and the
Rules

BASIC PRINCIPLES IN
THE CPR

a) Overriding Objective in CP and its

Interpretation:
Now referred in Kenya as the Oxygen Principle see
Safaricom Limited v Ocean View Beach Hotel
Limited & 2 others [2010] eKLR
The Overriding Objective of the Act and the Rules is to
facilitate the just, expeditious, proportionate and
affordable resolution of the civil disputes - section
1A(1)
In order to further the Overriding Objective above, the
court is required to handle matters presented before it to
achieve the following aims;

Overriding Objective
Contd.

(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. (section 1B)

Origin of the Principle

The principle originated from England pursuant to

a Report by Lord Woolf ( Access to Justice : Final

Report of 1996)
The Final Report brought radical reform to civil
litigation in England which in effect simplified and
brought clarity to the civil procedure.
The Oxygen Principle was introduced in the Kenyan
Civil Procedure in 2009 vide an amendment to the
Act and adopted from the Wool Report see
Deepak Chamanlal Kamani & another v Kenya AntiCorruption Commission & 3 others [2010] eKLR

Interpretation of the
Principle

Section 1A(2) of the CPA provides that the Court

shall in the exercise of its powers under the Act or
in the interpretation of the Provisions of the Act
give effect to the OO.
a. Purposive interpretation
As already seen above, the origin of the principle
is in the Woolf Report. Para. 10 -11 of Chap. 20 of
that report stipulates that the OO must be used
to interpret the rules in a purposively see also
the Safaricom Case

InterpretationContd.

In other words, interpretation is to be

purposive rather than a matter of close
analysis of the meaning of the individual words
without taking into account their content.
This is in consonance with the provisions of
Article 159(2)(d) of the Constitution which
enjoins courts to dispense justice without
undue regard to the technicalities of procedure.

Interpretation.Cont
d.

b. The Rules must be given their plain meaning

The Rules have been drafted in plain language and
therefore the ordinary meaning should be applied.
Although the court must seek to give effect to the OO this
does not mean that ordinary words of the CPR should be
interpreted contrary to that meaning or plain meaning
should be ignored . See Vinos vs Marks and Spencer plc.
[2001] 3 All ER 784
The same sentiments expressed in the case of
Karachiwalla Ltd vs Sanjiv Murkhejee Civil App No. 245 of
2014 Later allowed under Rule 4 in Civil App No. 253 of 2015

InterpretationContd

The court cannot therefore assume a

discretion in order to assist a deserving case
where there is no jurisdiction to make such an
order by resorting to the OO. See para 13 of
Wavinya Ndeti v Independent Electoral &
Boundaries Commission (IEBC) & 4 others
[2014] eKLR

Interpretation

c. May , must and should

Use of May signals that a court is given a
discretion.
In certain contexts, May may signal
mandatory rather than discretionary sense.
E.g Order 36 Rule 1(1) on summary Judgment.
Must or shall means that the Rule is
mandatory Example; Sitenda Sebalu vs ECU

Jurisdiction

a. Nature:
Denotes the power of the court to deal with a matter or issue a particular
order.
The nature and importance of Jurisdiction was stated in the locus classicus
case of Motor Vessel Lillian S v Caltex Oil (Kenya) Ltd [1989] KLR
by Justice Nyarangi of the Court of Appeal held as follows;
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.
Where a court has no jurisdiction, there would be no basis for a
continuation of proceedings pending other evidence. A court of law downs
tools in respect of the matter before it the moment it holds the opinion
that it is without jurisdiction.'

Jurisdiction.Contd

Definition:
John Beecroft Saunders in in his treatise Words and Phrases Legally defined
Volume 3: I states that;
By jurisdiction is meant the authority which a court has to decide matters that are
litigated before it or to take cognisance of matters presented in a formal way for its
decision. The limits of this authority are imposed by the statute, charter, or
commission under which the court is constituted, and may be extended or restricted
by the like means. If no restriction or limit is imposed the jurisdiction is said to be
unlimited. A limitation may be either as to the kind and nature of the actions and
matters of which the particular court has cognisance, or as to the area over which
the jurisdiction shall extend, or it may partake of both these characteristics. If the
jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the
existence of a particular state of facts, the court or tribunal must inquire into the
existence of the facts in order to decide whether it has jurisdiction; but, except where
the court or tribunal has been given power to determine conclusively whether the
facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does
not possess, its decision amounts to nothing. Jurisdiction must be acquired before
judgment is given

Jurisdiction

Therefore the court must be satisfied that it

has the jurisdiction before dealing with the
matter. In most cases, objection to jurisdiction
is raised by way of preliminary objection
pursuant to rules set out in Mukisa Biscuits
Manufacturing Co. Ltd v. West End
Distributors Ltd [1969] E.A. 696, per Law
Ja

Jurisdiction Contd

Statutory Provisions
Section 5 of the Act gives jurisdiction to the courts to deal
with civil matters
Any court shall, subject to the provisions herein contained,
have jurisdiction to try all suits of a civil nature excepting suits
of which its cognizance is either expressly or impliedly barred.
Types of jurisdiction;
i) Substantive/subject Jurisdiction
-Authority to handle the nature of the matter

or dispute. This may be limited or

unlimited. High Court - Article 165 (3)(a) of the Constitution.

ii) Procedural jurisdiction

Either in terms of timelines or form.
Form- Whether the court has the power to deal with the matter in view of the
procedure adopted by the party. Refers to the procedure adopted in canvassing the
dispute.

Types of Jurisdiction

Section 19 provides that;

Every suit shall be instituted in such manner as may be prescribed by
rules
-Order 51 Rule 1 provides that;
all applications to the court shall be by motion and shall be heard in
open court unless the court directs to be conducted in chambers or
unless the Rules expressly provide.
Time- whether the dispute has been caught by time limitations at the
time of filing. See The Limitations of Action Act, and The Law Reform Act.
Under law of Limitations- time line for filing a suit arising out of contract
is 3 years.
Under law reform time for filing a judicial review for certiorari is 6
months from the date of decision
Under the Rules Order 7 Rule 1- 14 days to file a defence.
- Order 51 Rule 14(2) -3 clear days to file a response to an application
Those under Rules curable Order 50 Rule 6 -enlargement

JurisdictionContd.

iii) Pecuniary Jurisdiction

amount or value of the subject-matter in monetary
terms . Section 4 of the Act
It is usually limited depending on the court and
the magistrate but not the High Court.
The PJ of the Magistrates Court is prescribed under
Section 7 of the MCA
(iv) Geographical/Territorial Jurisdiction
Section 11 -18 of the Act
See also Order 47 on District Registries where to
file

Others

Concurrent jurisdiction & Exclusive Jurisdiction

Original Jurisdiction & Appellate Jurisdiction