THE PLAINT Flashcards
What is a PLAINT and what does it do?
- The plaint is the pleading in which the plaintiff states the basis of the lawsuit
- Generally, the plaint does the following:
(i) Identifies the plaintiffs and defendants in the lawsuit, and describes their status and capacity to sue and be sued;
(ii) Describes the factual basis for the lawsuit;
(iii) Makes a request or demand for some relief from the court;
(iv) Contains a statement showing that the court in which it is filed has the proper jurisdiction (and that the venue is
also proper)
What is a format of a plaint?
2.1 THE CAPTION – This is the part of the plaint that identifies the court in which the plaint is filed, the names of the plaintiffs and defendants, the title of the document and the track
o The choice of the case track is determined by the parties from either small track, fast track or multi-track (Order 3, Rule 1, CPR) o Small track indicates that the case involves a simple claim, i.e. two parties, and the monetary value of the suit does not exceed Kshs. 49, 999/=
o Fast track is for cases with undisputed facts and legal issues, i.e. it involves relatively few parties and will likely be concluded within 180 days after the pre-trial directions
o Multi-track is for cases with complex facts and legal issues, involving several parties, and will likely be concluded within 240 days after pre-trial directions
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
ELC NO. OF 2019
MR JOHN WHITE HEA……………….PLAINTIFF
AND
COUNTY LAND BOARD NAIROBI……………………………………….RESPONDENT
PLAINT (FAST TRACK)
2.2 THE BODY – This is a description of the parties, factual basis for the lawsuit, and a description of the loss or damages incurred
o The plaint shall be divided into paragraphs and numbered consecutively
o A description of the parties, the brief facts and the clam/allegation shall be contained in separate paragraphs as far as possible (Order 2, Rule 2(1), CPR) o The description of the parties shall only be of relevant or material information and shall include the address for service
o There should be a brief statement summarising the material facts upon which the party relies for his claim, however, no evidence should be pled (Order 2, Rule 3(1), CPR) o The facts should disclose where the cause of action arose (order 4, Rule 1(1)(d), CPR) o All dates, sums and other numbers shall be expressed in figures (Order 2, Rule 2(2))
* Every plaint shall contain the particulars of any claim, including:
o Particulars of any misrepresentation, fraud or wilful default on which the plaintiff relies; and
o Where a party pleading alleges any condition of the mind of any person, whether disability of mind, malice, fraudulent intention upon which the party pleading relies, the same must be included
* The claims may be multiple, and if so, the particulars of each claim should be included after each claim
* The claims may be in the alternative, therefore, giving the plaintiff options on what claim shall be settled by the court
* Remember: claims in the alternative cannot be settled together – the court settles the claim that has been appropriately
proved and when the court deems such settlement shall justly resolve the matter, e.g. asking for both specific performance
of the contract and damages because it was not performed is inconsistent
* The rules of pleading usually allow the plaintiff to allege causes of action that are inconsistent, however, the plaintiff will not get a judgment on both of them
2.3 STATEMENT INDICATING DEMAND HAS BEEN MADE – This is a statement indicating that a demand has been made to right the wrong but the same has not been complied with
o It is necessary to evidence notice has been made to the other party of the suit
o Note: the demand letter is an accompanying document as under Order 3, Rule 2(d), CPR and where it is pleaded, it should have been made available
2.4 STATEMENTS SHOWING PROPER JURISDICTION AND VENUE
o A statement to aver that there is no suit pending nor has there been any previously determined proceeding on the subject matter (Order 4, Rule 1(f), CPR) o A statement averring the jurisdiction of the court to ensure that the party is aware that the court has territorial and pecuniary jurisdiction over the matter
2.5 THE PRAYER – This is a request for some relief or remedy from the court
o It shall it be necessary to ask for general damages and costs as well as interest thereon as the same shall be granted by the court as it thinks fit (Order 4, Rule 6, CPR) o However, every plaint shall specifically state the relief sought, either specifically or in the alternative (Order 4, Rule 6, CPR) o There shall be as many prayers as there are claims and they should be headed to distinguish which prayer is for which claim (Order 4, Rule 7, CPR)
REASONS WHEREOF the plaintiff prays that judgment be entered against the defendant as follows:
1. On the first cause of action
a) defendant be required to specifically perform the agreement.
OR
2. On the second cause of action
a) a declaration that the said contract is null and void;
b) judgment in the sum of Kshs.7,200,00, the contract price;
c) Judgment in the sum of Kshs.1,700,000, the interest forfeited on the contract price.
3. Costs of the suit.
2.6 THE SIGNATURE – The advocate shall sign the plaint and indicate, giving his address as the person who has drawn it
o The address of the person being served should also be provided
2.7 THE SUBSCRIPTION AND VERIFICATION – The signature of the advocate filing the document, the date, and the plaintiff’s statement (verifying affidavit), under the penalty of perjury, that the contents of the plaint are true
o A verifying affidavit sworn by the plaintiff should accompany the plaint (Order 4, Rule 1(2), CPR) o Ensure that the verat is contained on the same page as the signature of the plaintiff
10. Despite demand having been made and the notice of intention to sue having been given, the Defendant
has failed, refused and/or neglected to convey the property and/or repay the Plaintiff the contract price
or any part thereof.
11. This matter between the parties herein is not and never has been before any other court of competent
jurisdiction, in relation to a suit dealing with the same circumstances and subject matter.
12. This course of action arose in Nairobi within the jurisdiction of this Honourable Court.
CIVIL LITIGATION REVISION 2019/2010
35
o The suit will commence once the plaint has been filed (Order 3, Rule 1(1), CPR)
Can a PLAINT HANDLE MULTIPLE CLAIMS?
- A plaint may contain any number of causes of action or counts
- Whenever a cause of action arises out of the same general factual situation, the rules of pleading usually allow them to be joined in the same plaint
- As a general rule, if the claims provide different remedies or are proven by different facts or evidence in the case, they should probably be separated into distinct causes of action
- However, because the rules of pleading are so liberal, if two or more claims were combined into one cause of action, the court would either allow the pleading to stand as written or allow it to be amended
Can a PLAINT HANDLE MULTIPLE PARTIES?
- Multiple plaintiffs should be joined within the same cause of action if they have a joint claim or if they are suing for the same thing
- E.g. where Paul and Margaret, husband and wife, are suing for the same thing (i.e. damages sustained in buying a nonexistent plot), they are not each suing for half the damages. They are suing together for the total damages and should
therefore be joined in the same cause of action - When the plaintiffs are suing for something different, however, their claims should be in separate causes of action
- E.g. where James and Bertha, husband and wife, are both injured in the same automobile accident and wish to sue the driver of the other vehicle, they would be suing for different things, i.e. James is suing for his injuries and Bertha is suing For her injuries. This would therefore have two distinct causes of action. However, the two causes of action would be in
one plaint - When there are some common factual or legal cases among the various causes of action, they can be joined in one plaint
What are the types of the relief court can grant?
- Every plaint filed in an action contains a demand for relief from the court – a prayer
- Courts have the power to award two different types of relief – i.e. monetary relief and equitable relief
o Monetary relief usually means the award of some money to the plaintiff as compensation for some loss
o Equitable relief usually involves the court ordering the defendant to do something or to stop doing something
What are the different CLASSIFICATIONS OF DAMAGES?
- Damages can be classified as:
(i) General damages;
(ii) Special damages;
(iii) Exemplary damages; The award and calculation of damages is a judicial function
(iv) Aggravated damages; as opposed to a ministerial function.
(v) Punitive damages;
(vi) Nominal damages
How does a court determine the amount of DAMAGES TO GRANT?
most judicial decisions on damages are based on judicial precedents which set out rules on the maximum to be awarded or limit of damages that can be awarded on particular matters
* However, a party must prove the damages incurred and, particularly, special damages must be specifically pleaded for a court to grant them
* The maximum awarded depends on the circumstances of the case and the prevailing market economy at the time
What is the main purpose of damages?
The function of damages is to restore the prevailing party (plaintiff) to their original condition
* However, restoring a party to their original position may not always be possible (e.g. where someone has lost a limb), and
damages are therefore merely monetary compensation for the loss or injury suffered by the plaintiff
What are MONETARY DAMAGES?
- These damages are known as compensatory damages as they compensate the plaintiffs for a loss they have sustained
- They may be referred to by other names depending on the kind of suit, e.g. in personal injury suits they are referred to as special damages
- Sometimes the money damages will take the form of punitive damages or exemplary damages – these are meant to punish the defendant and are awarded only when the defendant has committed an extremely offensive act, or that it is in the public interest that such party be so punished as the breach of rights affects society
- Costs are not generally included in compiling the plaintiff’s damages. That being said, if the plaintiff wins the lawsuit, they will generally be awarded certain costs in addition to the actual damages (and should the defendant win the case, they will be awarded their costs from the plaintiff) – the issue of costs is, however, discretionary and so is up to the court entirely
- One element that is usually not included in the list of recoverable costs (unless the lawsuit is based on a contract that specifically provides for the payment thereof) are the advocates’ fees – parties are expected to pay their own advocate’s fees
WHAT ARE THE DIFFERENT TYPES OF EQUITABLE RELIEFS?
specific performance, rescission, restitution, declaratory relief, quiet title and injunctions
WHAT IS AN INJUCTION?
- An injunction is an order of court restraining a person from doing a particular act
- It is a relief commonly issued in matters relating to breach of contract or liabilities in tort where damages would not be an
adequate relief - There are different categories of injunctions, including prohibitory and mandatory injunctions
- Prohibitory injunctions act to restrain the defendant from doing certain things while mandatory injunctions require
respondents to do certain things - The purpose of these injunctions is: the preservation of property, legal rights and liabilities of parties until their conflicting
claims are determined - Before a party applies for an injunction, they must satisfy three conditions:
a) That it is a prima facie case with a high probability of success;
b) That there is irreparable injury that cannot be compensated with damages; and
c) That there is a balance of convenience in favour of the applicant (Giella v Casman Brown)
WHAT IS RECISSION?
- Where there is a breach of contract by one party, the innocent party may choose to rescind the contract
- If the aggrieved party intends to sue the guilty party for damages for breach of contract, they have to file a suit for rescission
of the contract - When the court grants rescission, the aggrieved party is freed from all their obligations under the contract and becomes
entitled to any compensation for any damage occasioned to them
WHAT IS SPECIFIC PERFOMANCE?
- This is an equitable remedy, and it means the actual carrying out of terms as agreed
- An aggrieved party may file a suit for specific performance, for a decree by the court directing the defendant to actually
perform his or her obligation - A decree for specific performance is granted only where it is just and equitable to do so, i.e. where the legal remedy is
inadequate or defective - As a rule of law, specific performance is not granted where monetary compensation is an adequate relief or where the
court cannot supervise the actual execution of the contract, or where one of the parties to the agreement does not possess
competency to contract and hence it cannot be granted for breach of contract
WHAT IS AMENDMENT OF PLEADINGS?
- A party can seek to amend pleadings at any time before the close of pleadings, and thereafter with the leave of the court
- Order 5, Rule 5, CPR provides that the court may, either on its own motion or on the application of any party, order any
document to be amended in such a manner as it directs
What procedure should be followed when seeking LEAVE TO AMEND?
- In the event a party wants to amend the claim, after close of pleadings, leave of court must be sought
- Order 8, Rule 3, CPR states that a party should make an application to court for leave to amend the plaint at any stage of
the proceedings and it shall be granted as the court thinks just to do so - Application for leave to amend is made by way of Chamber Summons and in most cases, you can make an oral application
in court but it is always safer to follow the oral application with a written one - Whenever the court grants you leave to amend, it will give you a time frame, i.e. if the court tells you should amend your
pleadings in 14 days, a failure to do so means the order granting permission to amend expires – however, the court has
the inherent power to extend such time - The guidelines that court follows in granting leave to amend pleadings is that the application should be made in good faith
and within reasonable time, and should not be allowed if it will occasion injustice to the other party - All amendments have to be shown by striking out and underlining the changes in red ink but the document must, at all
times, remain legible * Should the party making the amendments intend to amend a whole paragraph, the paragraph intended to be amended
should be crossed through and a new paragraph thereafter inserted with “A” next to the paragraph number and the
addition underlined in red to indicate the amendment. Any subsequent amendment to the amended paragraph shall be
captured as “B”. The numbering of the paragraphs shall be kept consistent - The title of the amended plaint shall incorporate the essence of the amendment with the word “Amended” underlined in
red - Any other amendment allowed by the leave of the court, subsequent to a previous amendment shall have the words
“Further Amended Plaint” - These amendments are allowed on the discretion of the court, & may be made suo moto or upon the application of a party
- Subsequently, the date on the pleadings shall be changed to capture the date of the amendment
- Note: a party may undertake to amend their pleadings at any time throughout trial, as long as consent is sought and
obtained from the other party
