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.
The Sources of Kenya Civil Procedure Law
Other Sources Of Kenya Civil Procedure Law
Rules of the Court – apart from the Civil Procedure Rules there are Rules, Regulationsand Directions which the court uses to guide the smooth operations of the court process. In Milimani Commercial Courts for example, there is the direction that rulings are for the afternoons hearings and mentions for the mornings – these are practice directions, to have orderly conduct for the business of the courts. These practice directions are normally bestowed in the Judicial Officer presiding over that particular court or it couldbe from the CJ. The practice in UK is that they report these kind of directions in the Law Reports to be part of the records but here one never gets to know what happens.
Inherent Jurisdiction and Statutory Jurisdiction under Kenya Civil Procedure Law
Statutory jurisdiction will define the limits within which the jurisdiction granted is to be exercised in contrast inherent jurisdiction derives from the court in its nature as a courtof law hence the limits of such jurisdiction are not easy to define and there has been no reason to define.Section 3 which states that it is to prevent theabuse of the process of the court – what is the juridical basis of inherent jurisdictionWhat are the powers of the court when it is exercising inherent jurisdiction – note that one way the court may want to exercise powers under section 3A are by coercion andgiving summary judgment, dismiss action, stay action.
Case Law as a Source of Kenya Civil Procedure
There are statements which can give procedural direction in case law. there quite a number of cases indicating procedure Tiwi Beach v. Stamm [1988-92]2kar 189Giella v Cassman Brown [1973] EA 358Murage v Mae Properties (2002) klr 3074 – Judgment of Waki J. on Mareeva injunctionsIn the case of Tiwi Beach –where on applies an ex parte, there is a requirement for one to disclose all facts that are material to that suit. An order can be discharged where it has not been disclosed. Developing rules through case lawGiella v Cassman – requirements for grant oftemporary injunctions and set procedure to be followed where parties are intent to obtaintemporary injunctions. Prima facie case withprobability of success, client must be likely tosuffer irreparable harm that cannot be taken care of by damages,Murage v Mae – the court was considering the provisions of Order XXXVIII of the then civil procedure rules relating to arrest and attachment before judgment, the judge was concerned with the provisions of Order XXXVIII and the Mareeva Injunction. Can onereally cater for the needs of their clients through an application under Order XXXVIII without applying for a Mareeva Injunction.
Inherent Powers of the Court under Kenya Civil Procedure Law
In a case where jurisdiction exists, but no procedure is provided for it is the duty of the judge or the magistrate to mount a convenient form of procedure which would serve the ends of justice. The court should not refuse to do justice just because there is no procedure provided for. This is the inherent power of every court, the power saidunder Section 3A of the Act. This section does not confer any powers, it indicates there is power to make such orders as may be necessary for the ends of justice to be met and to prevent abuse of court. This power is conferred in every court. 3A has emerged as an omnibus provisionThe word ‘Inherent Power’ has not been defined by any court but an attempt has beenmade in the following case.Mistreal Trust Co v Churchill Forest Industries (Manitoba) Ltd [1971] 21 DLR 3rd ed) at P 75 Sir Jack I.H. Jacob attempted to define inherent jurisdiction. “inherent jurisdiction is the reserve or fund of powers, a residue source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observes of the due process to prevent improper vexation or operation, to dojustice between the parties and to secure a fair trial between them.”The nature of inherent jurisdiction is to compare it with other jurisdiction.
An Introduction to Kenya Civil Procedure Law
Civil procedure in Kenya sets out the rules and standards that courts follow in that country when adjudicating civil suits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit orcase may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function
Kenya Civil Procedure Law:What is a Judgement?
Once judgment is written, there is a procedure of extracting the decree. Trials of civil proceedings do not end in judgment there is a subsequent step which is important. This distinguishes whether your client has won theoretically. One applies for execution of the judgment, enforcement of a right that has been acquired. One must applyfor the decree to be executed.
What mode of execution does one adopt, if one has an injunction, it will depend on what one wants to enforce, it could be attachment of property or winding up. Execution proceedings are very important.Another party may appear at the execution stage i.e. claiming to have an interest in whathas been attached, or where the attached property is not in the hands of the Judgment debtor.
Proceedings take place,Acting for the Defendant – one may want to appeal the decision you go to court to ask fora stay of execution, one of the mistakes which we make is to assume that if judgmenthas been passed and one wants a stay of execution, one must go to the court dealing with appeals. Not always, where one is applying to set aside, one must know the right procedures. One has to identify the rightorder, this is not appealing or setting aside so one cannot apply for a stay.Costs:If judgment is entered in default of appearance and defence one goes for a certificate of costs to enable execution. These are costs that have been certified by the registrar and a certificate issued in respect of uncontested cases.Judicial Review Order 53Ganishee Proceedings – where one has a decree but property of the judgment debtor isnot in the hands of the judgment debtor.
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.
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.
Civil Procedure Law: Originating Summons in Kenya
Definition of originating summons
A document which formally begins a legal case where people agree on the facts, but need a judge to decide on the meaning of a law, contract, or other document.
Originating Summons (OS) is one of the two modes in commencing a civil action. An action is commenced by an OS when
(1) it is required by a statute or
(2) a dispute, which is concerned with matters of law, is unlikely to be any substantial dispute of fact.
An Originating Summons may be inInter partesorEx-parteof the Rules of Court.OS is heard based on affidavits filed in support. OS cases are heard by registrarsor judges in chambers or in open Court. Ajudicial decision is made by hearing the lawyers and assessing the affidavits filed either in support of or in opposition to the OS.
Witnesses may be called to give testimony and pre-trial conferences may or may not be conducted.An application can be made to convert an OS into a Writ at any stage of proceedings. Alternatively, the Registrar or Judge can decide to convert an OS intoa Writ without any application from the parties. Once the decision to convert has been made, the steps relating to a Writ applies. The Registry will assign a new Suit Number to the proceedings and a pre-trial conference will be called for the service of the Statement of Claim.
Civil Procedure Law: Motion of Summary Judgement in Kenya
Definition. A request for a decision by a court of the matters submitted to it, basedupon legal arguments only, where no material facts are in dispute.
A motion for summary judgment can be granted to resolve disputes involving legalinterpretation, but not disputes regarding material facts. Summary judgment, generally, is a pre-trial remedy sought where, based upon facts not in dispute, and an application of the law to those facts, a party is entitled to a judgment on a claim. The judge cannot decide disputed facts in a summary judgment proceeding. If any facts material to a claim are disputed, then summary judgment cannot be granted on that claim.Summary judgment proceedings are governed by Rules of CivilProcedure.
Civil Procedure Law: Interloctutory Judgement in Kenya
Interlocutory is a legal term which can refer to an order,sentence,decree, orjudgment, given in an intermediate stage between the commencement and termination of acause of action, used to provide a temporary or provisional decision on an issue. Thus, an interlocutory order is not final and is not subject to immediate appeal.
An interlocutory decree, judgment, order or sentence can be found in all areas of law and litigation, including civil, family and employment law.It refers to when a temporary ruling is granted by the judge, which either prohibits or allows for a specific action, while the case is in process and until thecourt has reached a decision. It is made at the outset of a trial and relates to the heart of the case.
There are several reasons why an interlocutory judgment could be used. Some examples include:
*.When one side of a court case believes that the other side is withholding information that is essential to the case and that is required to be produced for the caseto be furthered on actual grounds.
*.If a case is taken for the purpose of stopping a particular action from taking place, one which may have already commenced, the plaintiff requests an interlocutory decree to stop the action until the full facts of the case are heard or until the judge rules on the matter.
*.When the defendant of an action does not feel that enough information has been provided in thecourt order being held against them and, due to this discrepancy, seeks further clarification of the issue before the case proceeds.
Cases must have started, but not finished, for an interlocutory judgment to be used. It is considered the back-and-forth interactions between both sides while coming to a final decision. It could change or have a lasting effect on the subject matter being decided.
When such an order is requested, a lapse in the court action persists until the further information is provided and assessed. Then, the case resumes fromwhere it left off.
At the end of a case, when the final judgment is ruled upon, any interlocutory decrees would be finished by default, as the final order would supersede any decree that took place before it.Interlocutory orders are notoriously difficult to receive from a judge.
Civil Procedure Law: Summary Judgement in Kenya
In law, a summary judgment(also judgment as a matter of law) is a judgment entered by acourtfor one party and against another party summarily, i.e., without a fulltrial. Such a judgmentmay be issued on the merits of an entire case, or on discrete issues in that case.Incommon-lawsystems, questions aboutwhat the law actually is in a particular case are decided by judges; in rare casesjury nullificationof the law may act to contravene or complement the instructions or orders of the judge, or otherofficers of the court. A factfinder has to decide what the facts are and apply the law. In traditional common law the factfinder was a jury, but in many jurisdictions the judge now acts as the factfinder as well.
It is the factfinder who decides "what really happened", and it is the judge who applies the law to the facts as determined by the factfinder, whether directly or by giving instructions to the jury.In the absence of an award of summary judgment (or some type of pretrial dismissal), a lawsuit ordinarily proceeds totrial, which is an opportunity for litigants to present evidence in an attemptto persuade the factfinder that they are saying "what really happened", and that, under the applicable law, they should prevail.The necessary steps before a case can get to trial include disclosing documents to the opponent bydiscovery, showing the other side the evidence, often in the form ofwitness statements. This processis lengthy, and can be difficult and costly.A party moving (applying) for summary judgment is attempting to avoid the time and expense of a trial when, in the movingparty's view, the outcome is obvious.
Typically this is stated as, when all the evidence likely to be put forward is such that no reasonable factfinder could disagree with the moving party, summary judgment is appropriate. Sometimes this will occur when there is no real dispute asto what happened, but it also frequently occurs when there is a nominal dispute but the non-moving party cannot produce enough evidence to support its position.
Aparty may also move for summary judgment in order to eliminate the risk of losing at trial, and possibly avoid having to go through discovery (i.e., by moving at the outset of discovery), by demonstratingto the judge, viasworn statementsanddocumentary evidence, that there are no material factual issues remaining to be tried. If there is nothing for the factfinder to decide, then the moving party asks rhetorically,why have a trial?The moving party will also attempt to persuade the court that the undisputed material facts require judgment to be entered in its favor. In many jurisdictions, a party moving for summary judgment takes the risk that, although the judge may agree there are no material issues of fact remaining for trial, the judge may also findthat it is thenon-moving party that is entitled to judgement as a matter of law.
In Kenya legal practice, summary judgment can be awarded by the court before trial, effectively holding that no trial will be necessary.
Summary judgment in the Kenya applies only in civil cases. It does not apply to criminal cases to obtain a pretrial judgment of conviction or acquittal, in part because a criminal defendant has a constitutional right to a jury trial.
From a tactical perspective, there are two basic types of summary-judgment motions. One requires afullevidentiary presentation, and the other requires only amore limited, targeted one.
First, a plaintiff may seek summary judgment on any cause of action, and similarly, a defendant may seek summary judgment in its favor on any affirmative defense. But in either case, the moving party must produce evidence in support ofeach and everyessential element of the claim or defense (as it would have to do at trial). To be successful, this type of summary-judgment motion must be drafted as a written preview of a party's entire case-in-chief (that it would put before the finder of fact at trial) becauseallparts of an entire claim or defense are at issue.
Second, a different and very common tactic is where a defendant seeks summary judgment on a plaintiff's cause of action. The key difference is that in thislatter situation, the defendant need only attackoneessential element of the plaintiff's claim. A finding that the plaintiff cannot proveoneessential element of its claim necessarily renders all other elements immaterial and results in summary judgment for the defendant. So these motions tend to be precisely targeted to the weakest points of the plaintiff's case. It is also possible for a plaintiff to seek summary judgment on a defendant'saffirmative defense, but those types of motions are very rare.
Civil Procedure Law: What is a Summary Jugment in Kenya
In any giventrial, there are always two overarching arguments. The attorneys argue about the law: determining which law applies and whether the law should be changed. Ultimately, questions of law will be decided by thejudge.
The second argument is over the facts of each case, in other words, what actually happened. A jury usually decides the facts after considering testimony and other exhibits.However, in many cases, the parties will agree on some of the facts. When one party believes thatthere are no important facts in dispute, he will file a motion for summary judgment.
A typical summary judgment motion has three parts. For the purposes of this article, let's assume that the plaintiff filed the motion, and that the defendant must now respond.Part 1: These are the facts:
First, the plaintiff will present a version of the facts. The plaintiff usually attaches photos, signed statements from witnesses, and any other evidence to back up their statements about the facts.
Part 2:This is the law: Next, the plaintiff will argue about the state of the law. The plaintiff's attorney will write up a memorandum that discusses the statutes and cases that govern the parties and attemptto convince the judge that, under the law, the plaintiff is entitled to win the case.
Part 3: Even if…: In the last part of the summary judgment motion, theplaintiff will anticipate what the defendant will argue, and will try to prove that even if the defendant is correct in her arguments, the plaintiff will still win the case. For example, the plaintiff in a case about squatter's rights might claimthey were living on a piece of property for 15 years, but anticipates that the defendant will argue that the plaintiff has really only been living on the property for 10 years. In this case, the plaintiff can argue that even if he had only been living on the property for 10 years, that is still enough time to win on a claim of squatter's rights.
Next, the defendant responds:In her response, the defendant can either try to show that the plaintiff'sarguments about the law are incorrect, or that there is evidence that there could be more than one version of the facts.The judge's decision:After all the papers and supporting evidence has been submitted, the judge will review all the paperwork and make a decision. The judge will grant the motion, or agree with (in this case) the plaintiff, if
(1) the plaintiff's arguments about the law were correct, and
(2) even assuming the defendant's version of the facts were true, the plaintiff is still entitled to win. The judge will deny the motion if there is evidence that presents any questions of fact thatshould be put to the test of a trial.
Civil Procedure Law: Service of Process In Kenya
Service of process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party (such as a defendant), court, or administrative body in an effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal.
Notice is furnished by delivering a set of court documents (called "process") to the person to be served.
Service
Typically, asummons and other related documents must be served upon the defendant personally, or in some cases upon another person of suitable age and discretion at the person's residence or place of business or employment. In some cases, service of process may be effected through the mail as in some small claims court procedures. In exceptional cases, other forms of service may be authorized by procedural rules or court order, including service by publication when an individual cannot be located in a particular jurisdiction.
Proper service of process initially establishespersonal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff. The defendant may contest the default in his or her home state. Service of process must be distinguished from service of subsequent documents (such as pleadingsand motion papers) between the parties to litigation.
Manner of service
Substituted service
When an individual party to be served is unavailable for personal service, many jurisdictions allow for substituted service. Substituted service allows the process server to leave service documents with another responsible individual, called a person ofsuitable age and discretion, such as a cohabiting adult or a teenager.
Substituted service often requires a serving party show that ordinary service is impracticable, that due diligence has been made to attempt to make personal service by delivery, and that substituted service will reach the party and effect notice.
Another method of substituted service is "service by publication" also called "constructive service"
Service by publication is used to give "constructive notice" to a defendant who is intentionally absent, in hiding, or unknown (as a possible descendant of a former landowner), and only when allowed by a judge's order based on a sworn declaration of the inability to find the defendant after "due diligence" (trying hard).[4] Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address. Service by publication usually involves placing the petition for divorce and the summons to a missing spouse in a local newspaper.
In divorce cases, most states that permit service by publication will require "due diligence" to locate the missing spouse to include: verifying with the post office that there is no forwarding address; contacting in writing all friends, relatives, and former employers of a spouse who may know his or her current address; checking all jails and prisons for any record of a spouse; and checking military records for a spouse
Personal service by process server
Personal service is service of process directly to the (or a) party named on the summons,complaint, or petition. In most lawsuits in the Kenya, personal service is required to prove service.
If the individual refuses to accept service, flees, closes the door, etc., and the individual has been positively identified as the person to be served, the documents may be "drop served" (placed as close to the individual as possible); this is considered a valid service.
Return of service in Kenya
Once service of process has been effected, the responsible officer or process server must typically file a return of service or proof of service or "affidavit of service" with the court (or convey one to the plaintiff to file with the court). The return of service indicates the time and place at which service was effected, the person served, and any additional information needed to establish that service was properly made. It is signed by the process server, and operates as prima facie evidence that service of process was effectively made.