Civil Procedure Law: Mode and Procedure of Commencement of Civil Action in Kenya Courts

There are four different ways or methods of commencing actions . These are:
a)By writ of summons (a writ for short);
b)By petition;
c)By originating summons; and
d)By originating motion (also known as application).

Each of the above is referred to as originating process. Almost, as a general rule, it is by the writ of summons that most actions are commenced, each of theremaining originating processes being resorted to where the Rules or a statute ora rule of practice prescribes the particularprocess as a mode of starting specified type of actions.

WRIT OF SUMMONS
A writ of summons is a formal document issued by a court stating concisely the nature of the claim of a plaintiff against a defendant, the relief or remedy claimed and commanding the defendant to “causean appearance to be entered” for him in an action at the suit of the plaintiff within a specific period of time, usually eight days, after the service of the writ on him, with a warning that, in default of his causing an appearance to be entered as commanded, the plaintiff may proceed therein and judgment may be given in defendant’s absence.Generally, all actions are to be commenced by the writ of summons except where there is any express legislation prescribing another mode –

Writ of summons is the appropriate mode for commencing an action which by its nature is contentious. Usually, action commenced by a writ of summons requires the filing of pleadings and possibly a long trial.

ENDORSEMENT OF THE WRIT OF SUMMONS
All writ of summons must have endorsed on it by the claimant (plaintiff) the nature of the claim being made or the relief sought.  This endorsement is at the back of the writ of summons.  This is to enable the defendant tell at a glance the nature ofthe action and the relief claimed against him.

A writ is endorsed when it contains a concise statement of the grounds of the complaint or claim and the relief or remedy to which the plaintiff or claimant considers himself entitled. This concise statement of the plaintiff or claimant is called the “particulars of claim” and it is required to be endorsed at the back of thewrit.If a party types his claims on a separate sheet of paper and affixes to the writ, that will be an improper endorsement and the writ will be invalid and is liable to be struck out.

However, where there has been a valid endorsement on the writ of summons andthe space provided is insufficient to accommodate the claims, a separate paper may be used in addition to the writs.It can also be said that:
1.If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the Writ must show it.
2.Inprobate actions the endorsement must show whether the plaintiff claims ascreditor, administrator, legatee, next-of-kin, Heir-at-Law, successor under native law devisee or in any other character.
3.Inall cases in which the plaintiff desiresto have an action taken the Writ must be indorsed with a claim that account be taken.
4.In actions for libel the endorsement on the Writ must state sufficient particulars to identify the publication which is the subject matter of the complaint.

BY PETITION
A petition is a written application in the nature of a pleading setting out a party’s case in detail and made in open court.It is, however, only used where a statute or Rules of court prescribe it as such a process.

Matrimonial Causes Act, provides that proceedings for dissolution of marriage are commenced by petition.
The Electoral Act also states that petitions are the only modes of procedure in election litigations. An election petition has been said to be similar to pleadings in civil matter as it is in that the practitioner sets out all the material facts he relies on for his petition.

BY ORIGINATING SUMMONS
It is a summons that initiates proceedings. However, a summons in a pending matter does not initiate proceedings but it is used for making interlocutory applications in a pending cause or matter.Generally, originating summons is used for non-contentious actions, that is, those actions where the facts are not likely to be in dispute (a question of law rather than disputed issues of facts).

When the principal question in issue is or is likely to be one of construction of a written law or any instrument or of any deed or will or contract, originating summons may be used for the determination of such questions or construction.