The Sources of Kenya Civil Procedure Law

We are concerned with the physical repositories where one can find civil procedure and the sources from where the law of procedure derives its force and validity.  One can list the constitution, statute as the second source and rules of courts andfourth is case law.From the constitution and its contents it is evident that it is a source of civil procedure.  Article 2 which states the supremacy of the Constitution, it means that whatever law substantive or procedural if it is inconsistent with the Constitution is void to the extent of the inconsistency.Statute law–we are concerned with theCivil Procedure Act Cap 21.  sometimes it is assumed that anything non-criminal is civil and this is not correct.  The Civil Procedure isbasically concerned with cases of a civil nature in the court, their procedure.  We exclude procedures which are stated as specific statute granting specific procedures to be followed, we exclude this from the Civil Procedure.  Winding up of a company has the winding rules and this is therefore excluded from civil procedure.

  Matrimonial Causes Act also prescribes procedures for prosecuting under this Act.  Contentious Probate matters are catered for under the Law of Succession Act and therefore excluded.  Where you have an Act of Parliament granting specific jurisdiction and prescribing procedure, then that is the procedure to be followed unless the Act itselfstates that the Civil Procedure is to be followed.Chapters 4 dealing with Bill of Rights is of eminence importance as it lays down the protection of fundamental rights and freedoms of the individual.  Article 50(1) provides for a fair hearing.TheConstitutionprovides for procedure in applications which are founded on the Constitution.Civil Procedure is a detailed provision of the detailed procedure provided by the Constitution. 

Cap 21 is the main piece of legislation that provides procedures.  The Actcreates jurisdiction in general terms, it is divided into 11 parts each containing sections which make provisions for particular subjects.  It has marginal notes in respect of some of the Sections.  Section 6 for example has explanatory notes, Section 7on Res Judicata has marginal notes and Section 16.Under Civil Procedure Section 2 the rules are properly promulgated by the rules committee.  What happens when there is a conflict of rules.  The rules formulated by Rules committee are meant to regulate procedure to be used in court.  these rules are just rules of procedure and do not affect the rights of parties in a suit and they don’t confer any new rights but only protect rights acquired, the rules do not confer jurisdiction, they do not create any substantive rights, they do not abridge any rights they do not abrogate any rights.When promulgated by the rules committee they must be consistent with the provisions of the Act.  If there is any inconsistency of the Rules Committee with the main legislation, or where the rules and the Act collide, the Act prevails.  to illustrate this point the cases of Central  District Maize Millers Association v Maciel[1944] 6ULR ]130In Uganda Section 99 of the Civil Procedure Ordinance is a replica of our section 100, Section 100 reads that the court may at any time and on such terms as to costs or as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.  The court is given power to amend pleadings by Section 100 and that power includes power to make amendments for purposes of determining the real question raised.  In Uganda they had another provision which was Order VII Rule 11 which provided that thePlaint shall be rejected (a) where it does not disclose a course of action – power to reject summarily a plaint which does not disclose acause of action.

Facts:    in a suit against a payee and first endorser of a promissory note the plaint contended on averment that no notice of dishonour had been given.  In the written statement of defence the defendant alleged that the plaint disclosed no cause of action because it did not contain an averment that notice of dishonour had been given to the defendant.  The trial magistrate amended theplaint by inserting particulars of the notice of dishonour and having heard evidence gave judgment against the defendant.  The Defendant appealed against the judgment and the main ground of appeal was that the Plaint should have been rejected because it did not disclose a course of action and that there was no power to amend. 

The question that the High Court had to determine was whether on there being no averment that notice of dishonour of the promissory note was given the Amendment of pleading by the Magistrate was proper or whether the magistrate was bound by Order VII Rule 11.   The Court held that the correct way of looking at the matter would be to say that theplaint did disclose a cause of action but unnecessary averment was omitted which could be cured by amendment under the Act notwithstanding the provisions of Order VII Rule 11 which appeared to be inconsistent with Section 99 of the Act. 

The words ‘does not disclose a cause of action’ under Order VII Rule 11 must mean that the plaint must besuch that no legitimate amendment can be made to give it a cause of action.   Although the rules may seem to confer the right to amend a pleading to disclose a cause of action, an amendment would be allowed under the general powers provided for under Section 100 to rectify a bona fide mistake in a plaint.  Where there is conflict between the rules and the Act the provisions in the Act will prevail over those in the Rules.S S Gupta v Inder Singh Bhamra [1965] EA 439the plaintiff filed a suit against the defendant as a drawer of a dishonoured cheque.  Within14 days of filing the case the plaintiff filed an amendment in the Plaint without leave and then explained why notice of dishonour was not necessary.  The defence applied to the court to disallow the amendment invoking the provisions of ORDER VII rule 11 while the Plaintiff argued that the amendment was proper and that Order VII rule 11 must not be inconsistent with the Section 99 of Ordinancethat allowed him the amendment.  The court said that the rule ought not to conflict with the Civil Procedure Ordinance.If a rule is inconsistent with the Act it is ultra vires to that extent.  Secondly if the Act confers unfettered power or discretion, a rulewhich limits the exercise of the power is prima facie inconsistent with the Act and is therefore ultra vires.  Thirdly if a rule is capable of two constructions one consistent with the provisions of the Act and the other inconsistent with the provisions of the Rules then the court should lean to the construction which is consistent with the provisions of the Act.Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777Section 80 confers an unfettered right to apply for review and the only fetter is that thecourt should exercise this discretion judiciary.  Order VLIV had qualifying words, it purports to set out grounds for review.  The ruling was that the wording in that particular Order should be given a liberal construction to avoid inconsistence with the wordings of Section 80, there should be no limitation to Section 80.  invoke Section 80 for review its is safer.The Act the rules made thereunder are not exhaustive although the intention is that they should apply to all matters of civil nature in court there are other rules prescribed by other statutes which give specific jurisdictionbut these other rules should be taken to complement the civil procedure rules.  Wherea statute specifically provides that the Act and the Rules shall apply then the Act and theRules should be applied to those proceedings and the fact that no rules have been made where law grants jurisdiction to the court does not mean that that jurisdictioncannot be exercised.  Section 3 of the Act confers jurisdiction to the Court and explainsthat where one has specific procedure provided by an Act of Parliament then that procedure ought to prevail, where it provides for the rules under the Civil Procedure, then that should be the case.The court ought to act on the principle that every procedure is to be taken as permissibleunless it has been shown to be prohibited.  One should not proceed on the basis that every procedure is to be taken as prohibited unless it is permitted.  The best illustration is the case ofMansion House Ltd. v John Wilkinson [1954]1EACA 98Winding up proceedings by way of Originating Motion.  At that time the OM was unknown to the Kenyan Law especially as enacted in the Civil Procedure Ordinance, the original authority for the existence of an OM was to be found not in the Civil Procedure Rules as applied in Kenya but in the English winding up rules.  The court further held that while the primary civil jurisdiction is exercised under Cap 21 the court shall apply the laws creating special jurisdiction or conferring special power or prescribing any special form of procedure.  This statement was also repeated in the case in Re Parbat Shah [1955]22 EACA 381 and the court held that the jurisdiction of Kenya courts is based first on local jurisdiction and secondly on applied foreign laws including where these are silent the civil and criminal jurisdiction of the High Court in England.  In this case the application for habeas corpus and prerogative writs are made in the English Courts and may be either of civil or criminal in nature and therefore accordingly in Kenya the HC has jurisdiction to entertain such applications on either its civil or criminal sideaccording to the nature of the proceedings.