Pre-litigation
A civil dispute under Kenya law may be and usually is divided into three stages:
- pre-litigation;
- litigation; and
- post-litigation.
The pre-litigation stage involves certain preliminary enquiries: into, for
example, whether there is in fact a case, the kind of action to be taken, the
identity of the person against whom it is to be pursued, for how much, by whom,
and in which court—everything, that is, which must occur prior to the point at
which a dispute is actually referred to a court. It may also involve
correspondence with an opponent and the sending of a letter of demand.
Cause of action
One of the first questions to be asked is on what basis the claim is
founded; what, in other words, is the cause of action? The cause of action under Kenya law is
essential in identifying the elements which must be proved to be successful
with the claim. It is therefore an enquiry into substantive law, assisting in
the determination of the appropriate civil procedure to be followed. Examples
include breach of contract and damages in delict. The best way to deal with a
matter is to identify the cause of action with as much particularity as
possible. In the case of breach of contract, for example, one should identify
the type of breach, be it misrepresentation or
mora debitoris or
something else. A set of facts may disclose multiple causes of action: In the
case of an motor-vehicle collision in which a breadwinner dies, a claimant may
sue both for damage to the vehicle and for loss of support.
Locus standi
Before a party may sue in a court of law, he has to prove that he has title
to sue. This is determined by two questions:
- whether a particular person
or juristic person is the right party to sue; and
- whether that person has the
ability or capacity to sue.
Grounds
Under the common law, a litigant had title to sue if he could show that he
had a direct and substantial interest in the matter. The requirements were as
follows:
- the plaintiff must have had
an adequate interest, not merely a technical one;
- the interest must not have
been too far removed;
- the interest must have been
actual, not abstract or academic; and
- the interest must have been
current, not hypothetical.
In actions based on the Bill of Rights, the following may litigate:
- anyone acting in his own
interest;
- anyone acting on behalf of
another person who cannot act in his own name;
- anyone acting as a member of,
or in the interest of, a group or a class of persons;
- anyone acting in the public
interest; and
- an association acting in the
interest of its members.
Capacity
Someone may be the right person to litigate, but he may still lack capacity
to sue. Capacity under Kenya law determines a litigant's title not only to sue, but also to be
sued. The general rule is that natural and juristic persons have the capacity
to sue. There are, however, certain exceptions:
- minors;
- insane persons;
- prodigals; and
- insolvents.
It is important also to note the special position of the following:
- judges;
- diplomats;
- fugitives from justice;
- trusts; and
- partnerships.
Jurisdiction
Once a person has decided what is his cause of action, and who is going to
institute the claim, he can determine out of which court to sue. The general
principle in jurisdiction is that the plaintiff has the choice, because he is
dominus
litis. There are various factors which may affect where a case will be
heard:
- residence;
- cause of action;
- the place where the dispute
arose;
- the quantum and nature of the
claim;
- consent;
- location of the property; and
- other factors.
Very often there will be more than one court with jurisdiction. In such a
case the plaintiff may simply choose out of which court to sue. He must ensure,
however, that he minimises his own cost.
Residence
A court has under the Kenya law jurisdiction over all persons residing within its jurisdiction
as well as all property situated within its jurisdiction. It is evident from
this section that the court has jurisdiction over the following:
- any person who resides, is
employed in or carries on business within the district, where "person"
includes the state, body corporate, municipalities, and corporations, and
where the key is permanence, so that a person employed for a short period,
or visiting a place for a short period, cannot be said to
"reside" there;
- any partnership with its
business premises in the area, or whose members reside in the district,
which allows one, in spite of the common law, to sue a partnership in its
name; and
- any person in respect of
proceedings incidental to any action or proceeding instituted in the court
by such person himself, which deals with the case where a plaintiff sues
out of the wrong court and is met by a counterclaim. The plaintiff in
convention can only continue in that wrong court if his claim is
incidental—i.e. arises out of the same facts—as the original claim.
Cause of action
The civil procedure Act confers jurisdiction over any person, regardless of
residence or employment, if the cause of action arose entirely within the
jurisdiction of the court.
Where the
dispute arose
The court has jurisdiction over any party to interpleader proceedings if
- the execution creditor and
every claimant to the subject matter reside, carry out business or are
employed within the area;
- the subject matter have been
attached by the court; and
- all parties consent.
Interpleader proceedings occur when one party intervenes in execution
proceedings, usually because property attached while in the possession of the
other party belongs to him. The interpleader summons is issued therefore to try
to prevent the sheriff from selling off property that belongs to the first
party.
Quantum
and nature of the claim
The court may under the Kenya laws hear the following cases :
- delivery or transfer of
immoveable or moveable property;
- claims for ejectment;
- actions for the
determination of a right of way;
- claims based on liquid
documents or mortgage bonds;
- actions arising out of a
credit agreement;
- actions including
application for the liquidation of a close corporation; and
There are certain matters which cannot be heard in the magistrate's court and
include
- matters concerning the
validity or interpretation of a will or other testamentary document;
- matters in which the status
of a person is affected;
- matters in which is sought a
decree of perpetual silence; and
- matters involving specific
performance without the alternative of damages, except
- the rendering of an
account in which the claim does not exceed the prescribed monetary
jurisdiction; and
- delivery or transfer
of property, moveable or immoveable, where the value of the property does
not exceed the prescribed amount.
Consent
The court has jurisdiction over any defendant who appears and does not
object to its jurisdiction. A defendant who fails to object to jurisdiction in
his plea is deemed to have consented to jurisdiction. Note, however, that there
may be some exceptions, and that such a defendant may only consent to jurisdiction
over his person and cannot consent where the court lacks jurisdiction in any
event.
Location of property
Any person who owns immoveable property situated within the area of
jurisdiction of the court, where such action is in respect of that property or
a mortgage bond over that property, is subject to the jurisdiction of the
court.
Jurisdiction in the High
Court
The High Court enjoys jurisdiction over all persons residing and all causes
of action arising within its area of jurisdiction. There are three common
grounds of jurisdiction in the High Court:
- domicile (ratio domicilii);
- cause of action (ratione
res gestae); and
- property situated within the
court's area (ratione rei sitae).
High Court jurisdiction is founded on the doctrine of effectiveness, which
refers to the principle that a claimant must sue out of the court which will be
most effective in giving a judgment: that is, the court which is best
positioned to enforce the judgment.
Demand
There are certain cases in which demand is required as a prerequisite for
litigation. Where there is no demand in such cases, a cause of action cannot
arise and any action instituted is premature. Generally speaking, demand is
required in two instances:
- to complete a cause of
action; and
- where legislation requires
it.
Time limits
It is imperative that time limits in civil procedure, prescribed by the
legislature, be observed, and in this regard to note the difference between
"court days" and "calendar days." Court days do not include
Saturdays, Sundays and public holidays, but calendar days do. It is also
important to know how to count these days.