RULES GOVERNING PARTIES TO A SUIT

Question 1

Kwame Kariuki & Another v
Mohamed Hassan Ali & 3 Others

Answer 1

A “party” is a person who, on the record of the court, has commenced a proceeding or is
being served with summons, or has been added by an order of the court to the proceedings

Question 2

What is the meaning of ‘dominus litus’?

Answer 2

A plaintiff is ‘dominus litus’, i.e. they must be allowed to choose who to sue – the Plaintiff need not pick a certain person to sue and have to give a reason why he is suing them

Question 3

(Order 1, Rule 7, CPR)

Answer 3

Where the parties are not sure of whom to sue for their cause of action, they may join two or more defendants in the action in order for the determination to be made as to who is liable and to what extent (Order 1, Rule 7, CPR)

Question 4

(Order 1, Rule 9,
CPR)

Answer 4

It is important to note that a suit may not be defeated for misjoinder or non-joinder of a party or parties

Question 5

(Order 1, Rule 10(2))

Answer 5

Where a suit has been instituted with the wrong name of the plaintiff or defendant, through a bona fide mistake, the court may at any time within the suit strike out the wrong party and enjoin the right [arty to enable it to properly adjudicate and settle the question in the suit

Question 6

Republic ex parte The Minister of
Finance and the Commissioner of
Insurance v Charles Lutta Kasamani

Answer 6

“Suffice it to say that a defect in form in the title or heading of an appeal, or a misjoinder
or non-joinder of parties are irregularities that do not go to the substance of the appeal
and are curable by amendment”

Question 6

(Order 1, Rule 14)

Answer 6

The application to add, remove or substitute a plaintiff or defendant may be made before trial through Chamber Summons
or it may be done in a summary manner during trial

Question 6

What is the meaning of ‘Locus Standi’?

Answer 6

Locus standi, or ‘legal standing’ is the status which the law requires of a person to enable them to invoke the jurisdiction of the courts in order to be granted the desired remedy
* Standing refers to the relationship which must exist between the plaintiff and the cause of action to enable the plaintiff to move to court
* The basic principle behind it is that the court’s time should not be wasted over hypothetical and abstract questions or at the insistence of a mere busy body that has no genuine grievance
* In civil matters, a person must be a person aggrieved before such person can have locus to appear in court

Question 6

(Order 1, Rule 14(4))

Answer 6

Where changes are made to the parties, the pleadings shall be amended and served on the rightly included parties, and if the court deems fit, on the original parties

Question 6

(Article 22(2), Constitution 2010)

Answer 6

In an application for judicial review or interpretation of the Constitution, the law on capacity allows any person to sue on behalf of others in respect of public interest litigation

Question 8

Where in the Kenyan Constitution does it guarantee the right to institute court proceedings?

Answer 8

The Constitution guarantees the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened (Article 22(1), Constitution 2010). Further, it guarantees the right to institute those proceedings on behalf of a group or class of persons (Article 22(2)(b), Constitution
2010) or in the interest of the public (Article 22(2)(a), Constitution 2010)

CASE LAW:
-Kituo Cha Sheria v John Ndirangu Kariuki & Another [2013] eKLR
-Haki na Sheria Initiative v Inspector General of Police & 2 Others [2015] eKLR

Question 9

(Lomax v Landells)

Answer 9

While most natural persons may sue or be sued, limitations exist with regard to children, incompetent persons, aliens and convicts
* Upon death, such persons cease to exist as parties and actions on behalf of their estate are taken in a representative proceeding by the executors or administrators of the estate

Question 10

(Rotich Cherutich & 3 Others v Director
of Surveys & Another)

Answer 10

Where there are several co-plaintiffs and some of them die during the currency of the trial, the substitution will only be allowed if the cause of action cannot be carried forward by the surviving plaintiffs

Question 11

(Order 24, Rule 3, CPR)

Answer 11

A suit abates after one year of death unless an application is made for substitution within that time. However, the court has the discretion to enlarge the time with good reason being given by the applicant

Question 12

Can one use an alias name?

Answer 12

Yes.A natural person may be a party in his given name, assumed name or fictitious name
* Where an alias is used, a party should be described using his proper name followed by the alias – e.g. ‘AB also known as ‘CD’

Question 13

What is the rule off ‘idem sonans’

Answer 13

Under the rule of idem sonans, absolute accuracy in spelling names is not required in legal documents. Clerical mistakes in describing a name do not vitiate a document

Question 14

Can one add a newly discovered defendant?

Answer 14

The Civil Procedure Rules also allow plaintiffs to name a newly discovered defendant even after the statute of limitations has run, as long as:
o The new party has received notice that the lawsuit has been filed within the time allowed for service’
o The new party would not be unduly prejudices; and
o The new party knew that but for a mistake, they would have been named as a party in the original suit → In such
a case, the date of filing against the new party ‘relates back’ to the original fling date (Order 1, Rule 7 + 8 + 10(2))

Question 15

(Order 9, Rule 2, CPR

Answer 15

In principle, every person who is a party in civil proceedings is entitled to represent himself personally or through an agent.It is not legally possible for an agent to institute suit on behalf of a principal without the principal’s authority

Question 16

(Article 159(2)(d), Constitution 2010)

Answer 16

Any suit instituted on behalf of the donor by the donee should be in the donor’s name – it is a procedural defect to file the case in the donee’s name, however, it is not fatal

Question 17

What happens when a Donor who has granted power of attorney to a Donee dies while case is still pending?

Answer 17

Where the donor dies and the Power of Attorney subsequently dies with them, the donee will only be able to represent the donor in the suit should the cause of action survive the death of the party, as a personal representative of the estate of the deceased
* The former donee will have to seek and obtain a grant of letters of administration ad litem (where there was no will) to continue representing the estate of the deceased

Question 18

guardian ad litem/ Next Friend

Answer 18

A person appointed by the court to represent a minor in a suit due to lack of capacity of the minor to represent themselves. The object of the next friend is the protection of the infants’ rights and the guaranteeing of costs if the plaintiff’s claim
fails, and to ensure due conduct of the proceedings
* A next friend has no power to consent to the dismissal of an action without the court’s approva

Question 19

mutatis mutandis

Answer 19

A person declared not to be of sound mind who can also be represented by a Guardian Ad litem.
Should they gain sanity at any point in the trial process they can apply to revoke the Guardian Ad litem/Next Friend

Question 20

Who is an ALIEN?

Answer 20

An alien is a subject of a foreign state, not born in this country
* An alien friend can generally sue or be sued in the courts in the same manner as a subject
* However, an alien friend cannot sue unless there is some cause for giving the court jurisdiction or something to the subject matter conveniently within the cognizance of the court * As a general rule, an alien enemy cannot bring an action in the country of jurisdiction as the plaintiff, although he may of course, be made a defendant

Question 21

What is the foreign state concept?

Answer 21

It is a matter of International Law that our courts will not entertain an action against certain privileged persons and institutions unless the privilege is waived
* This class of persons includes foreign sovereigns or heads of state and governments, foreign diplomats and their staff, consular officers and representatives of international organizations and agencies like UN, AU and EU

Question 22

Do foreign states have absolute immunity?

Answer 22

No.there is no absolute immunity for them – i.e. the test is whether the foreign sovereign government
was acting in a government or private capacity
* International law does not recognize immunity for a government department in respect of ordinary commercial transactions

Question 23

Can a company be sued?

Answer 23

Yes.A company, or Commission, or Authority, that is incorporated by an Act of Parliament may sue and be sued in its corporate name – the term ‘person’ in the legal context includes a body corporate
* A change of company’s name does not render defective any legal proceeding instituted by or against a company
* Any legal proceeding commenced against a company by its former name may be commenced and continued against a company by its new name

Question 24

What is the process of suing a company?

Answer 24

To bring a suit in the name of a company one must first obtain authority from the company by way of a special resolution CIVIL LITIGATION REVISION 2019/2010 18
* A company’s mind as directed by its directors is always known to the public through resolutions which are duly registered at the Company Registry in order to safeguard and inform the public
* In liquidation, a liquidator may sue in the name of the company, and the receiver for debenture holders may also bring or continue an action in the name of the company

Question 25

What is the role of the ATTORNEY GENERAL?

Answer 25

The Attorney General is the principal legal adviser of the Government and one of the functions of the AG is to represent the Government in Courts or any legal proceedings to which the Government is a party (Article 156, Constitution 2010 and
Section 12, Government Proceedings Act)
* In all matters of constitutional interpretation, the Attorney General must be added as a party to the proceedings.
* In addition, in cases of public interest, the Attorney General should be a party and if he is left out the court will join him as a respondent on its volition under (Order 1, Rule 10(2), CPR)

Question 26

Can administrators or executors of an estate be sued?

Answer 26

Yes.* The rules of the court provide that administrators or executors of the estate of a deceased person may sue or be sued on
behalf the estate without joining any beneficiaries
* The administrator of an estate is appointed by a grant of letters of administration, while the executor named in a will being appointed by a court through a grant of letters of probate
* An administrator should not commence an action in that capacity unless administration of that estate has been granted to them by the court
* Where there is more than one administrator, all the administrators must be made parties (even if one is an infant)
* When one administrator refuses to join in an action as a plaintiff, he/she may be added by the co-administrators as a defendant to the suit

Question 27

What are the rules of representing in a suit as parties or Class Action?

Answer 27

Order 1, Rule 8 An individual or individuals may represent parties to a suit where they have the same interests in the suit

Order 1, Rule 8(2) The parties representing the others shall give notice to those others by personal service, or where the numbers of those parties impede the practicability of personal service, by public advertisement, as the court may so order

Order 1, Rule 8(2) Included in the notice to all potential members of the class is usually an explanation that any potential class member can request in writing that he or she be excluded from the class. If a member does not request exclusion, that class member will be bound by any judgment in the case

Order 1, Rule 13(2) The parties represented must give the authority to be represented in writing and signed by the party giving authority, where after, the authority shall be filed in the case

Question 28

(Order 30, Rule 1, CPR)

Answer 28

A partnership may be sued or sue in the firm’s name, as long as the cause of action arose and manifested when the partners were referred to as such firm name.

• The rules of the court facilitate the service of the process and the resultant judgment is enforceable not only against the firm property, but also against the property of any partner who has been individually served
• With leave, the judgment is generally enforceable against the property of any partner. However, a foreign partner may have to be sued individually
• However, the limited liability partnership has the liability of the partners capped at the value of their contribution of capital in the partnership. Any acts or omissions undertaken by a partner in the course of the business of the partnership and under the express, implied or apparent authority of the firm will not visit liability upon the other partners