Procedure and Rules that Govern the Civil Proceedings in Kenya

Assuming Defendant chooses to defend the action – a defence is filed.  If the defence is filed and served one has to decide whether tomake an application.

Decision depends on cause of action if it is in the sphere of Order 36 one can apply for summary judgment which applies in only some cases.  This is a short cut – the court has right to make orders.If not under Order 36 if one thinks what is filed does not constitute a defence one may want to terminate the proceedings under Order 2 Rule 15 in favour of their client i.e. if the suit is frivolous.  These are two ways of bringing to an end the proceedings without a trial.When one wants to demand for information to help them make their mind, or wants matters clarified to determine the next step to take.To preserve the subject matter of litigation pending trial, you don’t want judgment or to strike out the defence, for this purpose one requires an injunction to preserve the subjectmatter.  Order 39 or 40.  At this stage one has to make their minds which application tomake  these are interlocutory proceedings.Fixing your suit for trial has another series of steps i.e. summoning witnesses, knowing whether there is a procedure in adjournment of suits.  What happens if a suit is fixed for trial and only the plaintiff turns up.  After these and the suit eventually comes to trial, one must know who has the right to begin.

Under Civil Procedure Rules there are times when the Defendant must begin, usually it is the Plaintiff who is entitled.  It depends on the kind of pleadings, if the defence admits the facts as stated by the Plaintiff.Evidence is conducted in a particular order.  The sequence of calling evidence it is important to make a statement to establish ones case.  examination in chief begins and then cross examination by the other side.  Where a witness turns hostile, the rules allowone to examine the hostile witness to show that they are unreliable.  Sometimes witnesses can choose to forget.  Ensure you have an understanding with your witnesses to streamline their memory and to anticipate.Once this is done the court delivers judgment.