MR KIMWELE & MS. MELISA NGANIA

Question 1

What is the Rule in Rylands v Fletcher?

Answer 1

The rule in Rylands v Fletcher, holds a defendant strictly liable for damages caused by an escape of something from her or his property that is attributed to a non-natural use of land. Non-natural use of land may include a special use of the land that increases the risk of harm to neighbours.

Question 2

What is a judgement by default?

Answer 2

A default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.

Question 3

What is the difference between a derivative action and an oppressive action?

Answer 3

In an oppression remedy action, the claim involves wrongs done to a stakeholder, usually by the corporation or its controlling minds. In a derivative action, the claim is about a wrong done to the corporation.

Question 4

What are the exceptions to the rule in Rylands V Fletcher?

Answer 4

1) The escape was caused by an act of God.
2) The escape of the thing was caused by the plaintiff himself. The defendant is not liable since the plaintiff brought about his own suffering.
3) The accumulation or bringing of the thing was through the consent of the plaintiff.
4) Statutory authority: The thing was brought onto the land as a requirement of an Act of Parliament
5) Contributory negligence, if the plaintiff was to also blame for the escape

Question 5

What is the difference between a Dissenting vs Majority Opinion?

Answer 5

A “Dissenting opinion,” or dissent, is the separate judicial opinion of an appellate judge who disagreed with the majority’s decision explaining the disagreement.

Majority opinion: a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court, and an explanation of the rationale behind the court’s decision.

Question 6

What is the difference between a substantive and Procedural law?

Answer 6

Substantive law is the law that creates the right being claimed, or the law under which charges are brought.
Procedural law sets out when, where, and how the claims are made and how the case is handled before the court.

Question 7

What is a Case Brief?

Answer 7

A case brief is a dissection of a judicial opinion – it contains a written summary of the basic components of that decision.

Question 8

What is the difference between a Counter Claim and Set off?

Answer 8

Set-off and Counter-claims are the cross-claims done by the defendant and these cross-claims cannot be contested unless they are accompanied by a written statement. A written statement is a reply to the plaint, and such a reply has to be given within 30 days from the date of the filing of the plaint.

COUNTERCLAIM: The definition of a counterclaim is a claim made to rebut accusations against you. If you are sued for breaching a contract and you, in turn, also file a suit against the plaintiff and claim that he was really the one who breached the contract, your claim against the original plaintiff is an example of a counterclaim. Examples of counterclaims include: After a bank has sued a customer for an unpaid debt, the customer counterclaims (sues back) against the bank for fraud in procuring the debt.

SETOFF CLAIM: Where the right of Set off arises, it can act as a defence to part or the whole of a claim.
Example: when the right of set off arises, if B owes A £800,000, but A in fact owes B £200,000, B can set off that £200,000 when A claims its £800,000, and pay to A only the balance of £600,000.

Question 9

What is a preliminary objection?

Answer 9

A Preliminary objection: depending on the circumstances of the case, the defendant can apply to dismiss the case without a trial on the grounds that the court does not have jurisdiction to hear the matter; that the matter constitutes an abuse of court process; or that the matter discloses no reasonable cause of action.

Question 10

What is an Originating Summons?

Answer 10

Originating Summons are generally used for commencing non-contentious matters, particularly where the action involves an issue of construction of any written law or any instrument made under any written law or of any deed, will, contract or another document, or some other question of law.

Question 11

When do Pleadings close?

Answer 11

Pleadings in an action are closed when (a) the plaintiff has delivered a reply to every defense in the action or the time for delivery of a reply has expired; and. (b) every defendant who is in default in delivering a defense in the action has been noted in default.

Question 12

What is a basic structure doctrine?

Answer 12

A basic structure doctrine, in a nutshell, is a legal doctrine according to which even in the absence of explicit limitations on the constitutional amendment power, there are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity.

Question 13

What is an entrenched clause?

Answer 13

An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible.

Question 14

What are Third Party Proceedings?

Answer 14

A third party proceeding is a procedure in a civil suit whereby a defendant is given room to join another person who is not party to the suit as co defendant on grounds that they have a legally recognized claim against the other person called. the ‘Third Party’
The third-party procedure enables liability between plaintiff and defendant, and defendant and third party to be determined concurrently, ..

Question 15

What documents accompany a plaint?

Answer 15

At the time of filing suit, a plaint must be accompanied by an affidavit by the plaintiff verifying the averments in the plaint along with the plaintiff’s list of witnesses to be called in the event of a trial, their respective witness statements and a list and copies of all documents the plaintiff wishes to rely upon.

Question 16

What is the rationale behind Third Party Proceedings?

Answer 16

Third party proceedings are a mechanism devised to avoid the multiplicity of suits, thereby saving time and money.

Question 17

What is an interpleader suit?

Answer 17

‘To interplead‘ means to litigate with each other to settle a point concerning a third party.

This is a lawsuit brought on behalf of a third party to determine which of the two parties is entitled to property held by the third party. It is basically a way for a holder of the property to initiate a suit between two or more claimants to the property

Question 18

What do you have to prove when instituting an interpleader?

Answer 18

Order 34 Rule 2 of Civil Procedure Rules 2010, which is founded on the above section, lays out the characteristics of an interpleader as follows:-
In every suit or application by way of interpleader, the applicant shall satisfy the court by way of affidavit or otherwise—
(a)that the applicant claims no interest in the subject matter in dispute other than for charges or costs;
(b)that there is no collusion between the applicant and any of the claimants;
(c)that the applicant is willing to pay or transfer the subject matter into court or to dispose of it as the court may direct.”

Question 19

Who is an interpleader in a suit?

Answer 19

Section 58 of the Civil procedure Act, Cap 21 provides:

58. Where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants, or where a suit dealing with the same subject-matter is pending may intervene by motion on notice in such suit, for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made, and of obtaining indemnity for himself:…”

Question 20

What is a citation?

Answer 20

A citation is a reference to the source of information used in your research. Any time you directly quote, paraphrase, or summarize the essential elements of someone else’s idea in your work, an in-text citation should follow.

Question 21

What is a plaint?

Answer 21

A Plaint is a legal document that contains the content of any civil suit which shows the Plaintiff’s claim after filing suit. The plaint is the first step of the Plaintiff in the form of a legal document for the commencement of suit and it shows what a Plaintiff wants from that suit. The concept of a plaint is mentioned in the Civil Procedure Code. Through the help of plaint, the plaintiff narrates or describes the cause of action and related information which is considered essential from the viewpoint of the suit.

Question 22

What are the necessary contents in a Plaint?

Answer 22

A plaint is a legal document that contains a lot of necessary contents in the absence of which, it cannot be considered as a plant. The contents necessary for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC. These are mentioned below:

1) Plaint should contain the name of the commercial or civil court where a suit will be initiated.
2) Plaint should contain details of the plaintiff such as the name, address, and description.
3) Plaint should contain the name, residence, and description of the defendant.
4) When a plaintiff has some defects or problems in health or any type of disability, the Plaint should contain a statement of these effects.
5. Plaint should contain the facts due to which cause of action arises and where the cause of action arises it should also be mentioned.
6. Plaint should not only mention facts due to which cause of action arises but also those facts which help in recognizing the jurisdiction.
7. Plaint should also contain the relief that the plaintiff seeks from the court.
8. When the plaintiff is ready to set off a portion of his claim, the Plaint should contain that amount which has been so allowed.
9. Plaint should contain a statement of the value of the subject matter of suit not only for the purpose of jurisdiction but also for the purpose of court fees.
10. At last, the content that should be on the plaint is the plaintiff’s verification on oath.

Question 23

What are time limits for bringing Civil Claims in Kenyan courts?

Answer 23

The prescribed time limits for instituting civil claims are defined by law and specifically in the Limitation of Action Act (Cap 22). The limitation periods for civil claims vary in extent and are largely dependent on the nature of the civil claim. Different limitation periods therefore apply to different claims.

A claim founded on a contract must be brought within six years from the date on which the cause of action arose, while an action founded on tort may only be brought within three years, barring an action for libel or slander, which may only be within 12 months from the date the cause of action arose. A claim for damages for unfair termination from employment may only be brought within one year from the date of termination.

Actions for enforcement of recognizance, enforcement of awards, recovery of sums due under the law, and claims of equitable relief must be brought within six years, while an action based on a judgment issued by the court must be brought within 12 years from the date the judgment was delivered.

The Limitation of Action Act further reserves the right to extend periods of limitation for civil claims in instances of fraud, disability, or where a person acknowledges or effects part payment of a debt. Parties are not at liberty to suspend time limits unless it falls within one of the exceptions aforementioned.

Question 24

What is a pleading?

Answer 24

A Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and defenses

Question 25

What is an Averment?

Answer 25

The allegation of facts or claims in a Pleading. It is basically a formal statement by a party in a legal case of a fact or circumstance that the party offers to prove or substantiate.

Question 26

How are civil proceedings commenced?

Answer 26

Civil proceedings are commenced by filing pleadings at the civil court registry. A plaint is usually the first pleading filed by an aggrieved party (the plaintiff) to initiate a civil suit unless the Civil Procedure Rules 2010 provide otherwise. The plaint is an avenue of presenting material allegations of facts as relied upon by a plaintiff to prove his or her claim. It must disclose the legal cause of action and the plaintiff’s prayers for relief against the offending party (the defendant). At the time of filing, a plaint must be accompanied by an affidavit by the plaintiff verifying the averments of the plaint along with the plaintiff’s list of witnesses to be called upon in the event of a trial, their respective witness statements, and copies of all documents the plaintiff wishes to rely upon to prove his or her claim. Once these pleadings have been filed, a suit is deemed to have commenced.

Question 27

How and when are the parties to the proceedings notified of their commencement?

Answer 27

The defendant is notified of a suit against him or her through summons to enter appearance (‘summons’) calling for their appearance and response to the plaintiff’s claim. Summons are more than a request as they are clothed with legal authority. They are usually signed by the judge within 30 days of the suit being filed and stamped with the seal of the court. The plaintiff must thereafter serve the defendant with the summons together with their plaint and its accompanying documents unless the court directs to effect service to the defendant by other means. If the defendant does not respond to the summons within the specified time frame either personally or through a duly appointed legal representative, a default judgment may be entered against them without the need for a trial.

Question 28

Do Kenyan courts have the capacity to handle their caseload?

Answer 28

A multitude of cases are filed within the Kenyan court system, which has resulted in a backlog of cases that has often proved a challenge to the judiciary. One of the things that have been introduced to reduce the case backlog is the court-annexed mediation process. This an alternative dispute resolution mechanism where parties resolve their disputes amicably with the assistance of a third party called a mediator. As soon as a case is filed, the court registry determines whether it is suitable for mediation. For example, parties seeking interim reliefs at the outset, such as an injunction, would not be compelled to go through the mediation process. If a case qualifies for mediation during the screening process, then the parties would be notified to appear before a mediator. It is, however, not mandatory for the parties to reach an amicable resolution at the mediation but a total disregard to the process would invite penalties of costs to the offending party.

If the parties reach an amicable settlement, a settlement agreement would be drawn up by the parties or their lawyers and signed by the mediator. This would then be binding and can only be set aside on similar grounds that would justify setting aside a contract.

Question 29

What is the typical procedure and timetable for a civil claim?

Answer 29

Once a suit has been instituted, the defendant must appear in the case personally or through a legally appointed representative within 15 days of being served with the summons. The period of the defendant’s appearance may vary depending on the time frame stipulated in the summons. The defendant would thereafter be required to respond to the suit through a statement of defense within 14 days of entering the appearance. The statement of defense should be accompanied by the defendant’s list of witnesses, witness statements, and any evidence the defendant shall rely upon to disprove the claim. Once filed, the defendant must serve the plaintiff with his or her pleadings within 14 days. The plaintiff may thereafter elect to reply to the defense within another 14 days, after which parties will close their pleadings.

The case will then be screened by the mediation registrar to determine if it is suitable for mediation as discussed above. If an amicable settlement is reached at the mediation, then the matter would end at that juncture. If the mediation is not successful, the case would proceed to a case management conference for pre-trial directions. These include identifying the issues for trial, identification of a test suit where applicable, and creating a timetable for the proceedings.

The timetable for each claim varies as this is dependent on the nature of the case, its complexity, the court’s diary, and the parties’ willingness to comply with procedural timelines under the Civil Procedural Rules 2010.

Question 30

What is a garnishee order?

Answer 30

If a court has made a judgment in your favor, you can obtain a garnishee order to enforce the payment of your debt by the person owning that owes you money (the ‘judgment debtor’).
If you have been sending letters to the judgment debtor with little effect, you can apply for a court order to garnish the judgment debtor’s wages or bank account. Essentially, this means you are able to dip into their income or accounts with permission from the court to recover the money they owe you.
The garnishee order instructs a third party, such as the judgment debtor’s employer or bank, to redirect their wages or holdings to you. Once the court issues a garnishee order, the employer or bank legally has to comply with it. Garnishee orders can be served to any type of debtor that owes you money subject to a judgment, including: contractors, customers; tenants. or an employer, allowing access unpaid salary.

Question 31

What interim remedies are available?

Answer 31

Interim remedies are remedies meant to offer temporary relief. The interim remedies available to the courts include:
1. Prohibitory injunctions,
2. Mareva injunctions
3. Anton Pillar orders
4. Security for costs,
5. Contempt of court orders
6. Appointment of receivers.

Question 32

What is the punishment of Contempt of court in Kenya?

Answer 32

(1) Save as otherwise expressly provided in this Act or in any other written law, a person who is convicted of contempt of court is liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both.

Question 33

What is the difference between Civil Contempt and Criminal Contempt of court?

Answer 33

Civil contempt refers to the wilful disobedience of an order of any court. Criminal contempt includes any act or publication that: (i) ‘scandalizes’ the court, (ii) prejudices any judicial proceeding, or (iii) interferes with the administration of justice in any other manner.

Question 34

What happens in a scenario where the defendant can not be found and a period of 11 months have elapsed?

Answer 34

Summons are valid for 12 months from the date of issue. This affords the plaintiff adequate time to serve the defendant. Where the plaintiff is unable to trace the defendant within 12 months, the plaintiff may apply to the court to renew the validity of the summons for a further 12 months or request the court for leave to serve the defendant through substituted means of service.