Civil procedure notes

Civil Procedure: Definition & Introduction

  • Civil procedure: Law governing rules/standards courts follow in civil cases.
    • Covers commencement, service of process, pleadings, motions, discovery, trials, judgments, remedies, court/party functions.
  • Ontario, Canada's principle: "just, most expeditious and least expensive determination of every civil proceeding on its merits".
  • Development:
    • Rules committee (judges) makes recommendations.
    • Recommendations ratified by Attorney General.
    • Courts have inherent jurisdiction, but it can't conflict with statutes/rules.
    • If civil procedure rules contemplate a process, the court can't alter it.
    • Exception: a rule often allows courts to dispense with compliance if in the interest of justice.
    • Party seeking dispensation bears the onus to prove it's in the interest of justice.

Difference between Civil and Criminal Procedures

  1. Distinction:
    • English criminal court: Defendant pays fine/prosecution costs; victim seeks compensation via civil action.
    • France: Criminal court judge can award damages to victim.
  2. Standards of proof:
    • Criminal action: Higher standard due to risk of imprisonment/execution.
    • English law: Prosecution proves guilt "beyond reasonable doubt".
    • Civil action: Plaintiff proves case "on a balance of probabilities".
    • Criminal cases: Guilt cannot be proven if there's reasonable doubt.
    • Civil case: Court weighs evidence, deciding what's most probable.
  3. Initiation of actions:
    • Criminal actions: Nearly always started by the state, though private citizens can sometimes prosecute.
    • Civil actions: Usually started by individuals/private persons.
    • Anglo-American law:
      • Criminal: State = prosecution, other party = defendant.
      • Civil: Party bringing action = plaintiff, other party = defendant.
      • Kenya: other party is “the accused”.
    • Case naming:
      • Criminal: USA: "The people vs. Sanchez"; England: "R. (Regina) vs. Sanchez"; Kenya: "R. (Republic) vs. Sanchez".
      • Civil: "Sanchez vs. Smith" or "Smith vs. Sanchez", depending on who started it.
  4. Admissibility of evidence:
    • Criminal trial evidence isn't automatically admissible in a related civil action.
    • Road accident example: Victim's injury case proceeds in civil court regardless of the criminal outcome.
    • Civil case can succeed even if the driver is acquitted in the criminal trial.
  5. Main arguments:
    • Civil court: Focuses on amount of damages defendant pays to plaintiff after liability is established.
    • Criminal case: Focus on the sentence to be imposed on the accused after a guilty verdict.

Origin of Civil Procedure in Kenya

  • Early procedure: Borrowed from India, especially for the coastal strip.
    • 1844 Zanzibar Order-in-Council: Consul applied Indian Law/procedure.
    • Consulate of Zanzibar: set up in 1841, applied British-India model.
  • 1888: British Crown granted Charter to Imperial British East African Company (IBEA).
    • IBEA took over rights granted to British East Africa Association by Sultan of Zanzibar in 1887.
  • 1889: Sultan of Zanzibar gave mainland possessions to IBEA Company.
    • Africa Order-in-Council: Regulated company's judicial powers.
    • IBEA Company: Supposed to apply English law but introduced the Indian Criminal and Civil Procedure Codes.
    • Application to Africans/Europeans wasn't clear.
  • 1895: British Government bought out company, started direct administration in Kenya.
    • Indian influence was already established.
  • 1897: East Africa Order-in-Council formed a protectorate court under a judicial officer.
    • Protectorate court: District court in Bombay, applying Indian Civil Procedure.
  • 1895: British Government directed preparation of Criminal/Civil Procedure Codes.
  • 1913: Chief Justice Hamilton completed first draft Civil Procedure Code.
    • Based on Indian Code of Civil Procedure 1908.
    • Reason: Indian Civil Procedure was applied in Kenyan courts for ~16 years, well understood.
  • 1916: Hamilton revised the draft.
  • 1924: Code enacted as Ordinance Number 3.
    • Enacted without Rules, with a Rules Committee to draw these up subsequently.
  • 1927: Rules finalized, based largely on the English Model.
  • August 1, 1927: Civil Procedure Ordinance (1924) & Rules (1927) came into force.
  • Civil Procedure Act/Rules: Largely intact, but with amendments.
    • Most comprehensive: Civil Procedure Rules 2010.
    • Amendments: To align Kenyan Rules with English Rules.
  • Rules apply uniformly to all courts.
    • Court of Appeal: Guided by Court of Appeal Rules (1972).
    • Supreme Court: Has its own rules.
  • Civil Procedure Act Sections 2 and 81:
    • The rules are made by a Rules Committee.
    • Rules regulate court procedure.
    • Rules don't affect parties' rights, confer new rights, create substantive rights, abridge rights, or abrogate rights.
    • Rules must be consistent with the Act.
    • Act prevails over inconsistent rules.

The Case of Central District Maize Millers Association vs Maciel (1944)6ULR) 130

  • Illustrates the point that the Act prevails over inconsistent rules..
  • Ugandan Civil Procedure Ordinance Section 99: Replica of Kenyan section 100.
  • Section 100: Court can amend defects/errors in proceedings to determine the real issue.
  • Order VII Rule 2 of Uganda Ordinance: Plaint rejected if it doesn't disclose a cause of action.
  • Facts:
    • Suit against payee/endorser of a promissory note.
    • Plaint lacked averment of notice of dishonor.
    • Defense: Plaint disclosed no cause of action.
    • Trial magistrate: Amended Plaint, gave judgment against defendant.
  • Appeal:
    • Ground: Plaint should have been rejected, no power to amend.
    • High Court question: Was the amendment proper, or was the magistrate bound by Order VII Rule 2?
  • Court held:
    • Plaint disclosed a cause of action, but a necessary averment was omitted.
    • Amendment was permissible under the Act, even with Order VII Rule 2.
    • 'Does not disclose a cause of action' means no legitimate amendment can give it a cause of action.
    • Amendment allowed under Section 99 to rectify a bona fide mistake.
    • The Act prevails over conflicting Rules.

S S Gupta v Inder Singh Bhamra [1965] EA 439

  • Further illustrates the point that the Act prevails over inconsistent rules.
  • Plaintiff: Sued defendant as drawer of a dishonored check.
  • Plaintiff: Filed an amendment without leave under Order VII Rule II, explaining why notice of dishonor wasn't necessary.
  • Defendant: Applied to disallow the amendment.
  • Plaintiff: Argued that the amendment was proper under Section 99 of the Ordinance.
  • Court ruled:
    • The rule should not conflict with the Civil Procedure Ordinance.
    • Inconsistent rule = ultra vires.
    • Unfettered power in Act, limiting rule = inconsistent, ultra vires.
    • Two constructions possible: choose the one consistent with the Act.

Other Rules

  • Act/rules are not exhaustive, but intended to apply to all civil matters.
  • Other statutes can provide specific jurisdiction, complementing Civil Procedure Rules.
  • When a Statute mandates application of the Act/rules, they should be applied.
  • Court with Jurisdiction: Can exercise jurisdiction, even if rules are lacking.
  • Section 3: If specific procedure is provided by an Act of parliament, that procedure should prevail.
  • Court Principle: Procedure is permissible unless prohibited, not prohibited unless permitted.

Mansion House Ltd. V John Wilkinson (1954) 1EACA 98

  • Case illustration of Court Principle for Procedure.
  • Winding up via Originating Motion (OM).
  • OM wasn't in Civil Procedure Ordinance; original authority was in English company winding up rules.
  • Court:
    • Primary civil jurisdiction is exercised under Cap 21.
    • Court applies laws creating special jurisdiction, power, or procedure.

Re Parbat Shah (1955)22 EACA 381

  • Repeated Mansion House ruling.
  • Kenyan courts' jurisdiction:
    • Based on local legislation.
    • Applied foreign laws, including civil and criminal jurisdiction of the High Court in England when local laws are silent.
  • Applications for habeas corpus and prerogative writs:
    • Made in English Courts, either civil or criminal.
    • Kenyan High Court has jurisdiction under either its civil or criminal side, based on nature of proceedings.

Inherent Powers of the Court

  • Jurisdiction exists, procedure lacking: Judge/magistrate must devise a convenient procedure to serve justice.
  • Court can't refuse justice due to lack of procedure.
  • Section 3A of the Act: Power to make orders necessary for justice, prevent abuse of process.
  • 'Inherent Power': Not defined, Monreal Trust Co. v Churchill Forest Industries attempted a definition:
    • Sir Jack I.H. Jacob: "reserve or fund of powers…which the court may draw upon…to ensure due process…prevent improper vexation…do justice…secure a fair trial".

Inherent Jurisdiction vs. General Jurisdiction

  • General jurisdiction: Unrestricted power in civil/criminal cases.
    • Only taken away by unequivocal statutes.
    • High Court: Unlimited original jurisdiction, full judicial power, not subject to supervisory control.
  • Inherent jurisdiction: Aspect of general jurisdiction.

Inherent vs. Statutory Jurisdiction

  • Statutory jurisdiction: Defines limits of granted jurisdiction.
  • Inherent jurisdiction: Derives from the court's nature as a court of law.
  • Magistrate’s Courts Act: Sets out monetary jurisdiction of each class of magistrate (example of statutory jurisdiction).

Rules of the Court

  • Beyond Civil Procedure Rules: Regulations and Directions guide court process.
  • Practice directions: Issued by Judicial Officer or Chief Justice for orderly conduct of court business.

Case Law as a Source of Procedure

  • Case law can give procedural direction.
  • Tiwi Beach v Stamm (1991) KLR 658: Court of appeal upheld injunction despite non-disclosure of material fact.
    • No deliberate concealment.
    • Court would have granted the order anyway.

System of Courts

  • Chapter Ten of Constitution (Articles 159 to 173) deals with the Judiciary.
  • Article 162: System of courts.
    • Superior courts: Supreme Court, Court of Appeal, High Court, and courts with status of High Court established by Parliament.
      • Parliament-established courts deal with Employment/labor, Environment, land use/title.
      • See Gazette Notice No. 9123 of 2015.
  • Article 169: Sub-ordinate courts.
    • Magistrate’s courts.
    • Kadhis courts.
    • Courts martial.
    • Other courts/local tribunals established by an Act of Parliament other than those under Article 162 (2).
  • Hierarchy of Magistrate’s courts (descending):
    • Chief Magistrate.
    • Senior Principal Magistrate.
    • Principal Magistrate.
    • Senior Resident Magistrate.
    • Resident Magistrate.
    • District Magistrate.
    • Up to (e): officers preside in Resident Magistrate’s Courts, jurisdiction throughout Kenya.
    • District Magistrate’s Court: Established for each district, jurisdiction throughout the district, presided over by a District Magistrate (First, Second, or Third Class).
    • Districts are obsolete, but the Act hasn't been amended.

The ‘Double O’ or the Oxygen Principle

  • Sections 1A and 1B of Civil Procedure Act Cap 21 (revised 2009) for High Court/Subordinate courts, Magistrates Court Act Cap 10.
  • Appeals to Court of Appeal: Sections 3A and 3B of the Appellate Jurisdiction Act Cap 9.
  • Similar wording across statutes.
  • Cap 21 1A (1): overriding objective is just, expeditious, proportionate, affordable resolution of civil disputes.
  • Cap 21 1A (2): Court to give effect to overriding objective.
  • Cap 21 1A (3): Parties/advocates must assist the Court.
  • Cap 21 1B (1): Court shall handle matters for attaining:
    • Just determination.
    • Efficient disposal of business.
    • Efficient use of resources.
    • Timely disposal at affordable cost.
    • Use of suitable technology
  • Sections 3A and 3B of Cap 9 apply only to appeals to the Court of Appeal
  • Principle also grounded in Article 159 of the Kenya Constitution 2010.

Civil Appeal (Application) No. 277 of 2005: Mradula Suresh Kantaria versus Suresh Nanalal Kantaria

  • Double O principle discussed re: striking out Notice of Appeal/Record of Appeal due to failure to serve Notice of Appeal on all affected parties (Rule 76 (i) of the Court of Appeal Rules)
  • Ruling delivered after amendment to Acts enacting the principle.
  • Judges summarized 'Double O' purpose:
    • Enable case management principles.
    • Attainment of justice should be fair and cheap.
    • Expressed differently: Facilitate just, quick, cheap resolution of real issues.
  • Embraced Puruse Pty Limited vs Council of the Cty of Sydney (2007) NSWLEC) 163:
    • Power must be exercised judicially with factual foundation.
    • Not a panacea, application foundation must be laid, advantages judicially ascertained.
  • Overriding objective cannot override fundamental principles of law.
  • Application to strike out granted.
    • Essential to have all affected parties before the Court.
    • Corridors of justice shouldn't lock out parties, in keeping with constitutional right to due process.

Civil Application No. 6 of 2010 Hunker Trading Company Limited vs Elf Oil Kenya Limited

  • Application grounded on Sections 3A and 3B of the Appellate Jurisdiction Act requesting for Orders of Stay of Execution, a similar application having been made in the High Court and been granted on condition of deposit of K.Shs 5,000,000/=
  • Applicant also failed to comply with those conditions
  • Judges emphasized Section 1A (3) of the Civil Procedure Act.
  • Applicant breached Section 1A(3) of Civil Procedure Act & Section 3A (3) of Appellate Jurisdiction Act by failing to comply with High Court order.
  • Applicant has duty to obey all processes/orders, abused Superior Court process, violating “O2” or “oxygen principle”.
    • The O2 Principle is intended to re-energize processes/promote good management.
  • Action of Applicant covered in High Court now through Court of Appeal Rules: waste of resources, abuse of processes, violation of the principle.
  • Cited Court of Appeal Application No. NAI 190 of 2009 Caltex Oil Limited vs. Evanson Wanjihia: Court given greater latitude to overcome technicalities/achieve overriding objective.