RESPONDING TO PLEADINGS Flashcards
WHAT IS A MEMORANDUM OF APPEARANCE?
- The defendant shall, within the time stipulated in the summons, enter appearance as under Form No. 12, Appendix A
(Order 6, Rule 2(1), CPR). The Memorandum of Appearance shall contain:
o The name of the defendant – as appearing in the summons;
o The date of entering appearance; and
o The signature of the person so summoned (or their advocate)
o It is also important to include the address for service (and postal address, if different) - Where the defendant is a firm, the appearance must list the individual partners by name with the description “Partners in
the firm of” - Where the defendant is an individual trading in a name other than his own, he must appear in his own name with the
addition of the description “trading as” - Where the defendant is a corporation, the appearance must be either by an advocate or by an officer of the corporation
duly authorized so to do under the corporate seal
WHAT IS A WRITTEN STATEMENT OF DEFENCE?
- The Statement of Defence is a pleading presented by the defendant, intended to reply to the allegations in the plaint
ORDER 7 CPR WHAT IT STATES
Rule 1 Where a defendant has been served with a summons to appear, they shall:
a) Enter appearance in the court;
b) File their defence within 14 days after they have entered an appearance in the suit;
c) Serve the defence on the plaintiff within 14 days from the date of filing; and
d) File an affidavit of service
Rule 5 The defence or counterclaim shall be accompanied by:
a) An affidavit, where there is a counter claim;
b) A lift of witnesses to be called at trial;
c) Witness statements signed by the witnesses, except the expert witness; and
d) Copies of the documents to be relied on at trial
Rule 17(1) The plaintiff shall thereafter enter their reply to the defence within 14 days from service of the defence
Rule 18(1) All pleadings subsequent to the plaint shall be filed in duplicate
Rule 18(2), 18(3) The duplicate shall be returned to the party to serve to the address of service of the opposing parties within
7 days, or the court can do this itself should that opposing party attend at the registry before delivery
WHAT ARE THE FUNCTIONS OF A WRITTEN STATEMENT OF DEFENCE?
(i) The function of a Written Statement of Defence is to state the grounds and the material facts on which the defendant
relies for their defence
(ii) The Written Statement of Defence is to inform the plaintiff precisely how much of the statement of the claim the defendant
relies on to defeat the claim of the plaintiff
(iii) The defendant may also use the Written Statement of Defence to specifically plead any matter, e.g. release, inevitable
accident, act of God, any relevant statute of limitation, or any fact showing illegality –
a. Which the defences alleges makes the claim not maintainable;
b. Which, if not specifically pleaded, will take the other party by surprise; or
c. Which raises a fact not arising from the previous pleading
HOW CAN AN OPPOSING PARTY RESPOND TO PLEADINGS?
- In response to pleadings, the defendant has the following options:
(i) Request further and better particulars;
(ii) Admit the facts stated, but raise a question of law as to their legal effect;
(iii) Deny or refuse to admit the facts;
(iv) Confess or admit the facts, but avoid their effect by asserting fresh facts which afford an answer to them;
(v) Admit or make an admission;
(vi) Plead a counterclaim; or
(vii) State facts that give rise to a set-off
HOW TO SEEK FURTHER PARTICULARS IN AN APPLICATION?
ORDER 2 CPR WHAT IT STATES
Rule 1(2) When issued with summons, and before the expiry of the time within which to respond, the defendant
may by notice in writing to the plaintiff, request for further information → done using a Request for
Particulars, Form No. 2, Appendix A
Rule 10(6) The plaintiff may provide further particulars as under Form No. 3, Appendix A
Rule 1(3) Once this notice has been given, appearance should be made:
a) Within 4 days from the defendant’s notice in writing acknowledging that they are satisfied; or
b) Within 4 days after the court decides that no further information is required, upon application of
the Plaintiff by Chamber Summons, served not less than 7 days before return day
Rule 1(2) This is an indirect way of attacking the plaintiff’s suit because failure to provide may lead to an application
to strike out pleadings for want of information
Replying to a pleading in such a way as to inquire for further particulars may force your opponent to
amend
WHAT IS RAISING A POINT OF LAW?
- The defendant may raise a point of law as under Order 2, Rule 9, CPR
- The distinction between pleading the law and raising a point of law may be explained thus:
o Pleading the law entails a party – in effect – pleading conclusions of law, which could obscure the facts of the case
(and this is not permitted); while
o Raising a point of law helps a party to define, identify or isolate an issue or question of law on the facts pleaded
(and this is permitted) - It is advisable to file a formal Notice of Objection on a point of law and serve it on the opponent – this is meant to notify
them on the point of law you intend to raise (“Take notice that the defendant intends to raise an objection on a point of
law”) - Where matters touch on jurisdiction they must be heard as a preliminary matter before anything else (i.e. through a Notice
of Preliminary Objection) - An objection could be based on validity of a custom, questions of jurisdiction of a court, whether a conversation was
privileged, etc. and where sustained, it could have the effect of having the suit struck out or dismissed at that point
WHAT IS A TRAVERSE IN DEFENCE?
- A traverse in defence is a denial of an allegation of fact made in the plaint. Such a denial serves to:
(a) Negate such allegation;
(b) Contradict what is alleged and to put it in issue; and
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(c) Cast upon the plaintiff the burden of proving the allegations denied
ORDER 2 CPR WHAT IT STATES
Rule 11(1) Any allegation of fact made by a party in his pleading shall be deemed admitted by the opposing party
unless it is traversed in opposing party’s pleadings
Rule 11(2) A traverse may be made by a denial or a statement of non-admission, expressly or by implication
Rule 11(3) The party traversing the alleged fact must do so specifically with reference to the alleged fact, in their
pleadings
Rule 11(4) However, an allegation that a party has suffered damage and any allegation as to the amount of damages
shall be deemed traversed unless specifically admitted - A traverse must not be vague or general or evasive – rather, it must be specific and must deal with each allegation of fact
and as regards each must answer the point of substance - A defendant must deal specifically with every allegation of fact made by the plaintiff, i.e. he must clearly admit or deny it
- Any ambiguous phrase will be construed into an admission of it
- It also looks weak to deny everything in your opponent’s pleadings – it suggests that you have no substantial defence to it.
Moreover, as a rule, a general denial is not admissible but is acceptable where there is already a specific denial - Omnibus denial: “Save as hereinafter expressly admitted, the defendant denies each and every allegation contained in the
plaint as if the same were set forth verbatim and traversed seriatim”
WHAT IS AN ADMISSION?
- Admission may be express or implied by the non-traverse of a material fact in the plaint
- The defendant ought to admit material facts which have no controversy – he should admit any facts in which it is not in his
interest to disprove or he does not have the power to disprove - An express admission ought to be clear, bold and unambiguous and should specify precisely what it is that is being admittedW
WHAT IS A COUNTER CLAIM?
[Order 7, Rule 3, CPR]
* A defendant may reply to the plaint by way of counter-claim. In this cross-suit they will be required to divide their written statement of defence into two sections:
(i) The defence; and
(ii) A statement of claim against the plaintiff
HOW TO PUT IN A COUNTER CLAIM?
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
ELC NO. OF 2019
MR JOHN WHITE HEAD……………………….PLAINTIFF
AND
COUNTY LAND BOARD NAIROBI……………………………….RESPONDENT
WRITTEN STATEMENT OF DEFENCE AND COUNTER CLAIM
- Usually the option is that the defendant will have a choice either to institute a separate suit or set up their claim in the
defence - If the court finds that the defendant’s claim can be determined within the same suit without delay, inconvenience or
prejudice to justice, then the court will allow it - Example: suppose the bank sues you over a debt, the bank will be the plaintiff over you. Suppose the Bank overcharged
in calculations? You can counterclaim on the overcharging
WHAT IS A SET OFF?
There are two types of set off: Legal set off and an Equitable set off
o A legal set off exists when there is a liquidated sum of money; the plaintiff must owe the defendant the liquidated
sum of money
o An equitable set off arises where there is no liquidated amount and the suit is settled by adjudication
WHAT ARE THE DIFFERENCES BETWEEN A SET OFF AND COUNTER CLAIM?
SET OFF VS COUNTER CLAIM
A set off is in the nature of a defence (i.e. a ‘shield’) A counter claim is in the nature of a cross-action (i.e. a ‘sword’)
If the plaintiff obtains judgment or the action is
stayed/dismissed, the set off also comes to an end
The counter claim is not brought to an end simply because the plaintiff’s case has ended
The defendant can recover nothing against the plaintiff for they can only use the set-off as a defence or answer to the plaintiff’s claim, equal to the amount of the set-off
It is possible for the defendant to make a recovery as against the plaintiff
A set-off may be raised only in respect of a claim by the plaintiff of a sum of money, whether such sum be a claim for debt or for damages
A set-off can only be used by way of defence to the plaintiff’s action, therefore it can be used only as a ‘shield and not a sword
