Civil Litigation 2020- 2021

THE KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME
(Academic Year 2020- 2021)
COURSE OUTLINE ON ATP 100: CIVIL LITIGATION

LECTURERS: Mrs. Alice Mongare

Mr. Herbert Ndung’u
Ms. Caroline Oduor
Ms. Melissa Ng’ania

A. GENERAL INTRODUCTORY OVERVIEW OF THE CIVIL LITIGATION

COURSE IN THE CONTEXT OF THE ADVOCATES TRAINING PROGRAMME
Students are advised to read the Kenya School of Law Act, 2012, Act No. 26 of 2012, the Legal
Education Act, 2012, Act No. 27 of 2012, Legal Notice No. 169 of 2009 and Legal Notice No. 400
of 2007, for a full appreciation of the description of this course, the syllabus and the context in
which this course is mounted, conducted and taught at the Kenya School of Law.

Course Purpose
This course equips the student with practical skills in resolution of civil disputes.

Expected Learning Outcomes of the Course

At the end of this course a student should be able to:
i) perform effective client conferencing and taking of instructions
ii) apply the knowledge garnered to advise clients on appropriate strategies to resolve civil
disputes,
iii) demonstrate a proper knowledge of the law, court rules and practice that apply in civil
litigation,
iv) represent clients in dispute resolution processes in a just, efficient, proportionate and cost-
effective manner,
v) Apply professional ethics and standards in civil litigation.

Course Content
i) Taking instructions
ii) different methods of civil dispute resolution

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iii) commencement of civil suits

iv) pre-trial processes
v) interlocutory civil applications
vi) trial process
vii) judgment and decree
viii) remedies to judgment-stay of execution, payment in instalments and objection proceedings
ix) Costs
x) Review and Appeals
xi) enforcement of orders and decrees;
xii) constitutional litigation procedures
xiii) employment and labour litigation
xiv) judicial review process
Teaching and Instructional Objectives
The teaching and instructional objectives of the course are to:

(i) to ensure the students’ understanding of the practical application of the Civil Procedure
Act (cap 21) and the Civil Procedure Rules, 2010 made thereunder, the Court of Appeal
Rules, 2012, the Supreme Court Rules, 2012, and related statutes
(ii) to ensure that a student has a firm grasp of the multifaceted Rules of Civil Procedure,
2010, and other Rules of Court and how they apply in Kenyan courts;
(iii) instill in the student a firm understanding and the practical application of the Civil
Procedure Act and the Civil Procedure Rules, 2010 and other Court Rules and relevant
statutes, and illustrative case-law to a given set of facts;
(iv) to ensure that the student is equipped with the necessary interpretational and practical
application skills for an effective civil litigation advocate,
(v) to provide clinical training, including simulations and moot courts
(vi) to emphasize relevant constitutional provisions, and the prescribed Overriding
Objective, in civil justice administration in Kenya.

Mode of Delivery
i) Interactive lectures
ii) Seminars and tutorials
iii) Guest lectures
iv) Power-point presentation slides
v) Group discussions
vi) Class Presentations

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vii) Role Plays

viii) Audio-visual instruction aids
ix) Moot courts
x) Legal aid clinics
xi) Study tours
xii) Pupilage

Instructional Materials and/or Equipment

i) Audio-visual instruction aids Flipcharts;
ii) LCD Projector and Screen;

Course Assessment
i) Project work (Term 1) 20%
ii) Oral examination (Term 2) 20%
iii) Final Written examination (Term 3) 60%
Total 100%
Reference Material:

1. Published Texts
Core Reading Materials for the Course
i) Allen Waiyaki Gichuhi, (2017), Litigation: The Art of Strategy and Practice, LawAfrica
Publishing (K) Ltd, Nairobi
ii) Kuloba, R., (2015), Judicial Hints on Civil Procedure (reprint), LawAfrica Publishing (K)
Ltd, Nairobi,
iii) Ouma, S. (2010), A Commentary on the Civil Procedure Act, LawAfrica Publishing (K) Ltd,
Nairobi.
Recommended Reference Materials:
i) Kuloba, R, (2008), Summary Judgment, LawAfrica Publishing (K) Ltd, Nairobi
ii) Kuloba, R., (1997) Courts of Justice in Kenya, Oxford University Press, Nairobi
iii) Kuloba, R., (1987) Principles of Injunctions, Oxford University Press, Nairobi
iv) Odunga, G.V. (2010), Digest on Civil Case Law & Procedure, 2ndedn in 4 vols, LawAfrica
Publishing (K) Ltd, Nairobi.

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v) Mbobu, K. (2011), the Law and Practice of Evidence in Kenya, LawAfrica Publishing Ltd,
Nairobi.
vi) Brennan, D; Blair, W. et al (2012) Bullen & Leake & Jacob’s Precedents of Pleadings (17th
ed.) in 2 vols, Sweet & Maxwell, London.
vii) O’Hare, J., & Hill, Robert N., (1995) Civil Litigation, 7th edn., Longman Group, UK
viii) Simon Goulding (ed) 1996, Odgers on Civil Court Actions, 24thedn, Sweet & Maxwell,
Ltd, London.
ix) Blake, S. (2009) A Practical Approach to Effective Litigation, 7th edition, Oxford University
Press, New York.
x) Hartely, T.C. (1984) Civil Jurisdiction and Judgments, Sweet & Maxwell, London.
xi) Mulla on the Code of Civil Procedure, 16th ed in 4 vols. (ed Solil Paul and Anupam
Srivastava) Vol 1, Butterworths India, New Delhi 2001.
xii) Sime, S (2011) A Practical Approach to Civil Procedure, (14th edn) Oxford University Press
xiii) Fosket. D, (2010), The Law and Practice of Compromise, 7th edition, Sweet & Maxwell,
London.
xiv) Kaluma P (2009), Judicial Review Law Procedure and Practice, LawAfrica Publishing
(K) Ltd, Nairobi
xv) Ongoya Z. Elisha, “The Law, the Procedures and the Trends in Jurisprudence on
Constitutional and Fundamental Rights Litigation in Kenya”, (Resource Material, ATP
Programme, 2008/9).www.kenyalaw.org, 2008 – 2010 Kenya Law Review, Nairobi.
xvi) Githu Muigai & Ongoya Z E, ‘The Law of Contempt of Court in Kenya’, Law Society of
Kenya Journal, (2005) 1, p.56
xvii) Githu Muigai, ‘Political Jurisprudence or Neutral Principles: Another Look at the
Problem of Constitutional Interpretation’, East African Law Journal, Vol. 1 2004, P. 1
xviii) Githu Muigai (ed), (2011), Arbitration Law & Practice in Kenya, LawAfrica Publishing
(K), Ltd, Nairobi
2. Basic written law, and Statutes
• The Constitution of Kenya, 2010
• The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice
and Procedure Rules, 2013
• The Civil Procedure Act (Cap. 21, Rev 2010), the Civil Procedure Rules, 2010 the Practice
Directions dated 28th July 2014(and revised from time to time)

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• The Judicature Act (Cap.8 Rev 2012), and the High Court Practice Rules made
thereunder
• The Magistrates Courts Act,2015 (Act No 26 of 2015)
• The Kadhi’s Court Act
• Limitation of Actions Act, (Cap 22)
• The Public Authorities Limitation of Actions Act (Cap 39)
• Government Proceedings Act (Cap 40)
• The Law Reform Act (Cap 26)
• The Employment and Labour Relations Court Act, 2011 (Cap 234 B, Rev 2014), and the
Employment and Labour Relations Court (Procedure) Rules, 2016
• Environment and Land Court Act, 2011 (Act No. 19 of 2011), and the Practice Direction
Rules in the Environment and Land Court
• The Evidence Act (Cap 80)
• The Arbitration Act, 1995
• The Oaths and Statutory Declarations Act (Cap. 15)
• The Advocates Act (Cap. 16)
• The Advocates (Remuneration) Order
• The Appellate Jurisdiction Act (Cap.9, Rev 2012)
• The Court of Appeal (Organization and Administration) Act, 2015 (Act No 28 of 2015)
• The Court of Appeal Rules, 2010
• The Supreme Court Act, 2011 (Act No 7 of 2011)
• The Supreme Court Rules, 2012 (Legal Notice no 123 of 2012)
3. Case Law
To be supplied on each topic content whenever illustrative precedent isrequired
4. Online references
www.kenyalaw.org
www.judiciary.go.ke

NOTE

a) The Law journals and periodicals from time to time, should also be consulted for various
learned articles pertaining to civil litigation.
b) Students are advised to read the prescribed texts and any other relevant texts over and
above the classroom lecture notes to expand their knowledge base and insights.
c) Students should also keep pace with emerging case-law from various courts and the
changes in substantive and procedural law and practice whenever occurring.
d) Examinations will test the law as it exists on the date of the examination.

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B. CIVIL LITIGATION TOPIC COURSE OUTLINE

TERM ONE (4th February – 24th April)
TOPIC 1: Overview of the Course Week 1

1. Introduction and Students’ Expectations

2. Introducing proposed course contents/outline for Civil Litigation
3. Tools and equipment required

Course Objectives
Learners should express their expectations, analyze the ATP 100 course, identify their lecturer,
evaluate the purpose of the course, and the objectives to be achieved, inspect the Course
content, and review the required teaching and learning tools and equipment.

TOPIC2: Taking of Instructions in Civil Litigation Week 2, 3 & 4

a) Taking instructions and client –advocate interview and conferencing

b) Legal opinion
c) Decision to litigate or not to litigate
d) Pre-litigation preliminary considerations
(i) cause of action
(ii) limitation of actions
(iii) feasibility of law suit
(iv) ethical considerations before taking up a case
(v) ethical consideration after taking up a case
e) Demand letter

1. Roleplay in class of an active client interview and plenary critique under

the supervision and guidance of the lecturer on the best practices in client interview.
2. Assignment and class presentations by Firms and plenary critique under the supervision
and guidance of the lecturer on the drafting of Legal Opinions and the Demand Letter

Topic Objectives
By the end of the discussion of the lecture, and the relevant readings, learners should be able to:
• conduct effective client interviews
• establish the incidence of the advocate-client relationship
• demonstrate the taking of instructions
• assess the litigiousness or otherwise of their case
• appraise the preliminary considerations before a suit is filed
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• formulate a legal opinion from the interview circumstances

• construct a demand letter before action
Readings:
• Order 1 of the Civil Procedure Rules, 2010.
• Barclays Bank of Kenya v. KephaNyabera&189 others & 2 others [2007] eKLR
• Nderitu & Partners Advocates v. Mamuka Valuers (Management) Ltd [2006] eKLR
• Samuel Kinoti v. Erastus Kithinji M’magiri (in the matter of the Estate of M’magiri(deceased)[2005]
eKLR
• Republic v. District Land Registrar Nandi & another ex parte Kiprono Tegeri & another [2005]
eKLR
• Kenya Bus Services Ltd & another v. Minister for Transport& 2 others [2012] eKLR
• Millicent Wambui v. Nairobi Botanica Gardening Limited [2013] eKLR(Cause No. 2512 of 2012)

TOPIC 3: Courts and Commencement of Civil Suits Week 5

(a) Jurisdictional Court Structure as under the Constitution and the Magistrates’ Courts Act
(b) Choice of appropriate court determined by certain factors:
(i) Jurisdictional considerations, i.e.,
• Constitutional conferment of jurisdiction
- Statutory
- Territorial
- Functional
- Subject matter
• Forum/Jurisdiction differentiated
• Forum/Venue differentiated
• Pecuniary Jurisdiction
• Consequences of lack of Jurisdiction
(c) Constitutional and Administrative divisions of the Courts

Presentation in class of the title captions of various court venues

Topic Objectives
By the end of the discussion of this topic and the relevant readings a student should be able to:
• distinguish between forum, venue and jurisdiction
• analyze the hierarchical court structure in Kenya
• revise the factors that guide choice of jurisdiction
• investigate the modes for commencement of civil litigation processes

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Reading:
Peter Nganga Muiruri v. Credit Bank LTD & 2 others [2008] eKLR
Mathias Were Diffu v. Pascal Nafuodo Ojwang [2007] eKLR
Articles 23, 58, 163, 164 and 165 of the Constitution of Kenya, 2010.
The Magistrates Courts Act, 2015
Supreme Court Advisory Opinion Reference Number 2 of 2013 – The Speaker of the Senate
&Another v. The Hon Attorney General and Others
Supreme Court Constitutional Application Number 2 of 2011 – In the Matter of the Interim
Independent Electoral Commission [2011] eKLR
Samuel Kamau Macharia v. Kenya Commercial Bank Ltd 2012 eKLR
Supreme Court Application Number 5 of 2014 – Gitarau Peter Munya v. Dickson MwendaKithinji
Supreme Court Civil Application Number 4 of 2014 – Menginya Salim Murgani v. Kenya Revenue
Authority
Supreme Court Petition Number 4 of 2012 – Jasbir Singh Rai& Others v. Tarlochan Singh Rai&
Others
Supreme Court Petition Nos. 5,4&3 of 2013 Raila Odinga & 2 others v. Independent Electoral &
Boundaries Commission & 3 others [2013] eKLR Supreme Court Petition Number 27 of 2014 –
Yusuf Gitau Abdallah v. The Building Centre (K) Ltd
High Court Constitutional Petition Number 284 of 2012 – Commission on Administrative Justice v.
Attorney General & another [2013] eKLR
Supreme Court Petition No. 10 of 2013 – Hassan Ali Joho & another v. Suleiman Said Shahbal & 2
others [2014] eKLR
Industrial Court Appeal Number 1 of 2013 – Labour Officer Vihiga v. Hilem Shah
Industrial Court Cause Number 927 of 2010 – P.O v. Board of Trustees of A.F
Industrial Court Cause Number 1227 of 2011 – GMV v. Bank of Africa Ltd
Industrial Court Cause Number 1666 of 2013 – James Davies Njuguna v. Simon Mithamo & Others
High Court Civil Appeal Number 71 of 2012 – Mwanakombo Amani Omar v. Kenya Knit Garment
Kenyatta University v. The Industrial Court of Kenya Misc Civil Application No. 430 of 2007
Industrial Court Petition Number 11 of 2014 – Nick Githinji Ndichu v. Clerk, Kiambu County
Assembly
Industrial Court Petition Number 23 of 2013 – Teachers Service Commission v. Kenya National
Union of Teachers
Industrial Court Petition Number 31 of 2013 – Kenya Medical Research Institute v. The Hon
Attorney General and Another
Nairobi Court of Appeal, Civil Appeal Number 290 of 2012 – Mumo Matemu v. Trusted Society of
the Human Rights Alliance
Nyeri Court of Appeal, Civil Appeal Number 21 of 2014 – Martin Wambora v. The Speaker of the
Senate

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Nairobi High Court Constitutional Petition Number 518 of 2013 – Judicial Service Commission v.
The Speaker of the National Assembly
Nairobi High Court Constitutional Petition Number 72 of 2013 – Edward Mwaniki Gaturu v. The
Hon Attorney General
Bungoma High Court Election Petition Number 1 of 2014 Milka Nanyokia Masungo v. Robert
Wekesa Mwembe
Murang’a High Court Civil Appeal Number 266 of 2013
Nakuru High Court Civil Case Number 290 of 2012
Eldoret Environmental and Land Court Petition Number 9 of 2012
Nairobi ELC Number 825 of 2012
Nairobi ELC No. 207 of 2013
Lydiah Achieng Obura v. Usonok Farm 2014 eKLR

TOPIC 4: The Overriding Objective in Civil Litigation Week 5

(a) The concept of the Overriding Objective

(b) The overriding objective of the court
(c) The role of parties and their respective advocates
(d) Application of the overriding objective principle in civil litigation
(e) Sanctions for contravening the overriding objective principle

Firm assignment: to identify the court processes that uphold the overriding
objectives

Topic Objectives
By the end of the discussion of this topic and the relevant readings a learner should be able to:
• analyze the meaning of the “overriding objective”
• critique the reason for the inclusion of the overriding objective in the Civil Procedure
Act Cap 21 Laws of Kenya, and other civil statutes and Rules of Court
• explain the application of the overriding objective in civil proceedings
• assess the effectiveness of the overriding objective in guiding civil litigation in Kenya
• establish the sanctions which parties to a suit may face for contravening the overriding
objective principle.
• evaluate the Overriding Objective principle in its proper historical context in the
development of procedural legislation in Kenya.
Readings:
• Article 159 of the Constitution of Kenya, 2010
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• Sections 1A, 1B and 1C of the Civil Procedure Act (Cap 21 Laws of Kenya)
• Sections 3A of the Civil Procedure Act (Cap 21 Laws of Kenya)
• Section 4 of the Magistrates’ Courts Act, 2015 (No 26 of 2015)
• Section 3 of the Court of Appeal (Organization and Administration) Act, 2015 (No 28 of 2015)
• Section 3 of the Employment and Labour Relations Court Act (cap 234B, Rev 2014)
• Section 3 of the Environment and Land Court Act, 2011 (No 19 of 2011)
• Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9, Rev 2012)
• D’Orta-Ekenaike v. Victoria Legal Aid (2005) 223 CLR 1
• Royal Media Services Ltd v. Attorney General & 2 others, Civil Application Nairobi 44 of 2013 [UR
28/2013]
• Abok James Odera T/A A.J Odera& Associates v. John Patrick Machira T/A Machira& Co. Advocates
[2013] eKLR Civil Appeal 161 of 1999
• Deepak Chamanlal Kamani & another v. Kenya Anti-Corruption Commission & 3 others [2010]
eKLR, Civil Appeal (Application) 152 of 2009
• James Mangeli Musoo v. Ezeetec Limited [2014] eKLR
• Nairobi Court of Appeal Civil Appeal Number 154 of 2013 – Kakuta Maimai Hamisi v. Peris Pesi
Tobiko
• Nairobi Court of Appeal, Civil Appeal (Application) Number 124 of 2004 – Habo Agencies Ltd
v. Wilfred Odhiambo
• Nairobi Court of Appeal, Civil Appeal (Application) Number 228 of 2013 – Nicholas Kiptoo
Arap Salat v. IEBC & Others
• Supreme Court Civil Application Number 7 of 2014 – Zacharia Okoth Obado v. Edward
Akong’o Oyugi & Others
• Nairobi High Court Civil Case Number 265 of 2011 - John Maina Mburu v. George Gitau Munene
& Others
• Richard Kuloba, Judicial Hints on Civil Procedure, LawAfrica Publishing (K) Ltd, Reprint 2015,
pages 1-15 (for history of pre-2010 Civil Procedure Rules)

TOPIC 5: Parties to a suit Week 6, 7 & 8

a) Parties to a suit
b) Joinder of parties
c) Third party
d) Interpleader

Assignment and class presentation by the Firms and plenary critique under the
supervision and guidance of the lecturer on third party process and the interpleader.

Topic Objectives
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By the end of the discussion of this topic and reference to the relevant readings, students should
be able to:
• distinguish the various parties to the suit
• analyze the context of joinder, mis-joinder non-joinder of parties in the suit
• conduct the third-party process
• develop an interpleader
Readings:
• Order 1 rules 2, 3, 5, 7, 8, 9, 10, 14, 15, 16, 17 , 19, 20, 21, 22, 23.
• Order 32 rules 2, 3, 12, 13
• Order 34
• Republic Ex Parte the Minister for Finance & The Commissioner of Insurance as Licensing and
Regulating Officers v. Charles Lutta Kasamani T/A Kasamani & Co. Advocate & Another Civil
Appeal (Application) No. Nai 281 of 2005.
• Kituo Cha Sheria v. John Ndirangu Kariuki & Another [2013] eKLR.
• Haki na Sheria Initiative v. Inspector General of Police & 2 others [2015] eKLR.
• Rotich Cherutich & 3 others v. Director of Surveyors & another [2013] eKLR.
• David Thuo & 8 Others v. First American Bank of Kenya Ltd [2005] eKLR.
• Loice Wanjiru Meru & 3 others v John Migui Meru [2017] eKLR
• Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others &
Information Communication Technology Association (ICTAK) (as Amicus Curiae) [2017] eKLR
• Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others Supreme Court Petition
No. 12 of 2013, [2015] eKLR.

• Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 3 others
[2017] eKLR.

• Joseph Leboo& 2 others v Director Kenya Forest Services & another [2013] eKLR

• Overseas Touring Company (Road Services) Limited v African Produce Agency1949 Limited [1962]
EA 190.
• Stott v West Yorkshire Road Car Co Home Bakeries (third parties) [1971] 3 All ER 534.
• Silas Kamau & 4 others v Kenya Nut Company Limited & another [2005] eKLR.

TOPIC 5: Commencement of Civil Suits Week 9, 10, 11 & 12

a) Pleadings by which litigation is commenced and answered

• Plaint
• Statement of Claim

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• Memorandum of Claim
• Originating Summons (OS)
• Originating Notice of Motion
• Petition(Election, Constitutional, Matrimonial Causes& Winding up Proceedings)
• Pleadings: in reply, generally
• Defence,
• Defence and Counter-Claim
• Defence to Counter-Claim
• Reply to Defence
• Reply to Defence and Defence to Counter-Claim
• Answer to Petition
• Answer to Petition and Cross Petition
• Response to Petition
• The Role of Affidavits and Chamber Summons
b) Basic structure of common pleadings and specific rules relating to each
category of pleadings
c) Filing of pleadings in Civil Courts
• Special pleadings in other judicial forums (e.g., the ELRC, Tribunals)
d) Issue of Summons to enter appearance, and Service of process
e) Amendment of Pleadings

Assignment and class presentations by Firms and plenary critique under the
supervision and guidance of the lecturer on drafting pleadings, summonses,
service of summons processes and amendment of pleadings

Topic Objectives
By the end of the discussion of this topic and reference to the relevant readings, students should
be able to:
• investigate the various modes of pleadings for commencing a civil suit
• review the forms of pleadings used to approach the various Court venues
• measure the functions of pleadings in civil litigation
• appraise the role of affidavits and chamber summons in civil litigation
• assess the essential components of a pleading
• conduct the process of filing pleadings in a civil court
• apply summonses to enter appearance

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• differentiate the modes of service of summons and other civil court processes
• develop a plaint, defence and corresponding processes
• execute the amendment of pleadings
Readings:
• Section 2 of the Civil Procedure Act&Orders2, 3& 4 of the Civil Procedure Rules, 2010
• Jecinta Muiruri v. Jane Mwangi &Anor (2006) eKLR
• Fredrick Mwangi Nyaga v. Garam Investments & another [2013] eKLR
• Pius Weyusia Wamalabe v. The Attorney General Misc. Civ. App. 527 0f 2004
• Makerere University v. St. Mark Education Institute & Others [1994] KLR 682
• Jacinta Wanjala v. IEBC & 3 others [2013] eKLR
• Justus Kyalo Mutunga v. Labh Singh Harnam [2012]eKLR
• Gachui Akothae Rengerua v. Zena Salim Ahmed (Suing as the administratrix of the estate of
Salim Ahemed Salem) [2012] eKLR
• Justus Nyaribo v. Clerk to Nyamira County Assembly [2013] eKLR
• Rose Florence Wanjiru v. Standard Chartered Bank of Kenya Limited & 2 others [2014] eKLR
• Moses Wanjala Lukoye v. Bernard Alfred Wekesa Sambu and 3 others [2013] eKLR
• Matiko Bohoko& Another v. Prime Minister and Minister for Local Government & 2 Others [2012]
eKLR
• Kiama Wangai v. John N. Mugambi & Another [2012] eKLR
• E.M.S v. Emirates Airlines [2012] eKLR
• Johana Kipkemei Too v. Hellen Tum [2014] eKLR
• James Mangeli Musoo v Ezeetec Limited [2014] eKLR
• Abdirashid Adan Hassan v. Masterways Properties Ltd. [2013] eKLR

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TERM TWO (4th May – 3rd July)

TOPIC 6: Interlocutory Civil Applications & Pre-trial processes Week 1, 2 & 3

(a) Interlocutory applications generally

(b) Procedure
(c) Pre-trial processes
• Powers of the court to strike out pleadings
• Disposal of suits by summary procedure
• Third party notice
• Interim Orders
• Interlocutory injunction
• Order 38 applications, Mareva injunctions & Anton Pillar Orders
• Interpleader proceedings
• Discovery and inspection
• Pretrial Directions and Case Conferencing

Illustrative specimen pre-trial processes issued assignments and class

presentations by Firms, and plenary critique under the supervision and
guidance of the lecturer.

Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
• debate the purpose of pre-trial processes
• analyze the various pre-trial processes
• develop the pre-trial processes

Readings:
• Ndimu v. Ndimu (Kamangu v. Kamangu), HCCC 1 of 2007 (2007) eKLR
• Kiama Wangai v. John N. Mugambi& Another[2012] eKLR
• E.M.S v. Emirates Airlines[2012]eKLR
• Johana Kipkemei Too v Hellen Tum [2014] eKLR
• James Mangeli Musoo v Ezeetec Limited [2014] eKLR
• Abdirashid Adan Hassan v. Masterways Properties Ltd.[2013] eKLR
• Gatirau Peter Munya v Dickson MwendaKithinji& 2 others [2014] eKLR
• John Lokitare Lodinyo v. Mark Lomunokol& 2 others [2013] eKLR
• The Siskina [1979] AC 210 at 256. Contrast with Lord Denning in Chief Constable of
Kent v. V [1983] QB 34

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• Channel Tunnel Group Limited v. Balfour Bealty Construction Limited[1993] AC 334 at

360-362
• American Cyanamid Company Limited v. Ethicon Limited[1975] AC 396
• Hubbard v. Vosper[1972] 2QB 84
• Giella v. Cassman Brown and Company [1973] EA 358
• Cayne v. Global Natural Resources PLC [1984] 1All ER 225 at 237
• Francome v. Mirror Group Newspapers[1984] 1WLR 892 at 898
• Anne Kinyua v. Nyayo Tea Zone Development Corporation & 3 others [2012] eKLR
• Mareva Compania Naviera SA v. International Bulk Carriers [1980] 1All ER 213
• Etablissment Esefka International Ansalt v. Central Bank of Nigeria [1979] 1Lloyds Rep
445
• Anton Piller KG v. Manufacturing Processes Limited [1976] CH55
• Virginia Wangui Mathenge v Agnes Wairimu Njoroge& another [2013] eKLR
• Richard Kuloba, Summary Judgment, LawAfrica Publishing (K) Ltd, 2008
• Richard Kuloba, Principles of Injunctions, Oxford University, 1987

TOPIC 7: Trial, Judgment, Decree and Execution Week 4, 5, 6, 7, 8 & 9

(a) Trial and court proceedings

• Attendance at court for trial of civil case
• Order of proceedings at trial of a civil case
• Making submissions in court
• No case to answer
• Evidence by affidavit
(b) Judgment and Decree
• Writing and delivering a civil judgment
• Contents of a civil judgment
• Decree
(c) Remedies upon judgment
• Stay of execution
• Payment in instalments
• Objection proceedings
(d) Execution of decrees and orders
• Procedure for execution
• Notice to show cause
• Decree for payment of money
• Decree for specific movable property

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• Garnishee Proceedings
• Execution against the Government

Illustrative specimen judgment and decree, Illustrative specimen of execution

processes. Class presentations by Firms, and plenary critique, under the supervision and
guidance of the lecturer

Topic Objectives
By the end of the discussion of this topic and the relevant readings, students should be able to:
• appraise the procedure in a trial court in a civil case
• demonstrate judgment writing and delivery
• formulate a decree after judgment
• differentiate the modes of execution of decrees and orders
• devise the process of execution against the Government
• conduct execution processes
Readings:
• Rachael Mwikali Mwandia v. Ken Maweu Kasinga; and
• Sonia Kwamboka Rasugu v. Sandalwood Hotel & Resort T/A Paradise Beach Resort &Anor
• Republic v Permanent Secretary Office of The President Ministry of Internal Security & another
ex-parte Nassir Mwandihi [2014] eKLR (Miscellaneous Civil Application JR 132 of 2010)

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TERM THREE (10th August – 30st October)

TOPIC 8: Appeals and Review Week 1, 2, 3, & 4

Appeals

(a) Right of Appeal

(b) Time for appeals
(c) Parties to appeals
(d) Appeals from subordinate Courts to the High Court and other superior courts
(e) Appeals from the High Court to the Court of Appeal
(f) Appeals from the Court of Appeal to the Supreme Court
(g) Appeals from certain Tribunals and other statutory bodies
(h) Documents of Appeal
(i) Stay of execution pending appeal
(j) Procedure of hearing an appeal
(k) Powers of appeals court

Review
a) Nature and scope of Review
b) Grounds of applying for Review
c) Procedure for Review

Illustrative specimen of appeal process: class presentation by Firms, and

plenary critique, under the supervision and guidance of the lecturer.
Illustrative specimen of review process: class presentation by Firms, and
plenary critique, under the supervision and guidance of the lecturer.

Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
• review the procedure of appeal from subordinate courts to the High Court and other
superior courts
• assess the procedure of appeal from the High Court and other Superior Courts to the
Court of Appeal
• appraise the procedure of appeal from the Court of Appeal to the Supreme Court
• demonstrate what is entailed in the process of appeal
• establish the procedure of review
• execute the process of review
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TOPIC 9: Judicial Review Procedures Week 5 & 6

(a) The prescribed stages in the procedure for judicial review of administrative actions
(b) The remedies under the judicial review process
(c) Accompanying documents
(d) Service of application

Illustrative specimen of the judicial review process and class presentations by

Firms and plenary critique, under supervision and guidance of the lecturer.

Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
• analyze the procedures for judicial review
• establish the remedies available under judicial review process
• critique the documents in the process
• investigate the procedure of service of the process
• execute the judicial review application

Readings:
• Order 53 of the Civil Procedure Rules, 2010
• Jotham Mulati Welamondi v. The Electoral Commission of Kenya[2002] 1 KLR 486
• Farmers Bus Service and Others v. The Transport Licensing Appeal [1959] EA 779
• Mohamed Ahmed v. Republic [1957] EA 523
• R v. The Hon. Attorney General & Others ex p. the Public Law Institute & Others, Misc. Civil
Case No 572 of1994
• Kaluma, P, Judicial Review Law, Procedure and Practice, LawAfrica Publishing (K) Ltd,
2009.

TOPIC 10: Constitutional Litigation Procedures Week 7 & 8

(a) Defining constitutional litigation

• Defining a Constitutional Question
• Jurisdiction in Constitutional litigation generally
(b) Various jurisdictions of the High Court in constitutional litigation:
• Supervisory Jurisdiction
• Reference Jurisdiction
• Jurisdiction for Protection of Property
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• Enforcement Jurisdiction
(c) Jurisdiction of other courts in constitutional litigation
(d) The proper approach to the interpretation of the Constitution
(e) Rules of Practice and procedure for determination of constitutional questions in Kenya

Practice Rules by the Chief Justice

• Procedure in respect of the Supervisory Jurisdiction of the High Court
• Procedure in respect of the Interpretive Jurisdiction of the High Court
• Procedure under the Enforcement Jurisdiction of the High Court
(f) Consequences of non-compliance with the Rules
(g) Judicial review procedure vis-a-vis enforcement of constitutional rights
(h) Locus Standi in Constitutional Litigation

Illustrative specimen of the constitutional petition: class presentations by

Firms and plenary critique, under the supervision and guidance of the lecturer.
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
• theorize constitutional litigation
• establish the jurisdiction of the High Court and other courts in constitutional litigation
• construct the proper procedure in constitutional litigation
• review the consequences of non-compliance with the Rules of practice and procedure
on constitutional litigation
• differentiate the employment of judicial review instead of constitutional litigation
• quantify the status of locus standi in constitutional litigation
• develop the basic constitutional petition documents

Readings:
• The Constitution of Kenya, 2010

• On jurisdiction of the Court of Appeal

Rafiki Enterprises v. Kingsway Tyres and Automart Ltd, Nairobi CA Civ. Appln. No 375 of 1996
(unreported)
Roy Richard Elirema and Anor v. Republic [2003] KLR 537
Albunas Mutua v. Republic Nairobi CA Cri. Appeal No. 120 of 2004, (decision delivered on July 7,
2006)
Gerald Macharia Githuku v. Republic Nairobi, CA, Cri. Appeal No. 119 of 2004; (delivered on
April 27, 2007)

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• On the threshold test

Anarita Karimi Njeru v. Attorney General [1979] KLR 154
Stanley Njindo Matiba v. Attorney General, Nairobi HC, Misc. Application No. 666 of 1990,
Kamlesh Mansukhlal Damji Pattni v. Attorney General [2001] KLR 264
Meme v. Republic &Anor[2004] 1 KLR 637
Cyprian Kubai v. Stanley Kanyonga Mwenda, Nairobi HC Misc. Appln no. 612 of 2002
Minister for Home Affairs and Another v. Fischer [1979] 3 ALL ER 21
R v. Elman [1969] EA 357

• Non-compliance with prescribed Rules

Livingstone Maina Ngare v. Attorney General &Anor, HC Misc. Cr. Appln No. 173 of 2003
Wiliam Birir Arap Chelashaw v. Attorney General &Anor, Nairobi H.C. Misc. Cr. Appln. No. 898 of
2003

• Use of judicial review to ventilate constitutional rights

Republic v. Kenya Roads Board ex parte John Harun Mwau, Nairobi, HC Misc. Appln No. 1372 of
2000
Republic v. Hon. Chief Justice of Kenya & Others Ex Parte Roseline Naliaka Nambuye, Nairobi, HC
Misc. Appln. No. 764 of 2004
Republic v. Judicial Commission of Inquiry into the Goldenberg Affair Ex parte Hon Prof. George Saitoti
Misc. Civ.Appln No. 102 of 2006

• On Locus Standi
Kenya Bankers Association & Others v. Minister for Finance &Anor (No. 4)
Patrick Ouma Onyango& 12 Others v. Attorney General & 2 Others, HC Misc. Civ. Appln No. 677 of
2005

TOPIC 11: Costs Week 9 & 10

(a) Costs inter partes

• Party and Party Costs
• Advocate-Client Costs
(b) Costs in interlocutory proceedings
(c) Costs in cause
• Plaintiff’s costs in the cause
• Defendant’s costs in the cause
• Costs in any event
(d) Costs thrown away

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(e) Costs reserved

(f) No order as to costs
(g) Counsel to pay costs
(h) The taxation process
• Costs between Advocate and Client
• Discretion of taxing officer
• Principles to be observed in taxing costs
• Costs to more than one advocate
• Change of advocates
• Appeal on taxation by reference

Illustrative drafts of Bills of Costs and how taxation of Bills is done – class
presentations by Firms, and plenary critique, under the supervision and
guidance of the lecturer.

Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:

• categorize costs inter partes, and advocate-client costs

• evaluate the determination of costs in interlocutory proceedings
• distinguish the commonly used special terminological expressions in costs orders, such
as costs, “, “costs reserved”, “no order as to costs”
• revise the circumstances under which an advocate will be obliged to pay costs personally
• appraise the taxation process and governing principles
• justify appeal against orders in taxation of bills of costs

Readings
• the Advocates Act
• the Advocates Remuneration Order
• Richard Kuloba, Judicial Hints on Civil Procedure, reprint 2015, LawAfrica Publishing (K),
Ltd, Nairobi, pages 93 – 180, including specimen precedents on costs, Bills of costs and
Taxation of Bills of Costs, after detailed exposition of the principles governing the taxation
of Bills of costs.
• Cecilia Karuru Ngayu v. Barclays Bank of Kenya & Anor [2016] eKLR citing the Ugandan
Supreme Court case of Impressa Ing Fortunato Federice vs Nabwire(2001) EA 383.

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• John Maina Mburu T/A John Maina Mburu & Co. Advocates v George Gitau Munene
(Sued as Administrator of the Estate of Samuel Gitau Munene) & 3others [2015] eKLR.
• D. N. Njogu& Co. Advocates v National Bank of Kenya [2007] eKLR
• Hezekiel Oira T/A H, Oira Advocate v Kenya Broadcasting Corporation [2015] eKLR
• First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64
• National Oil Corporation Limited v Real Energy Limited & Anor.[2016] eKLR.
• Republic v Minister of Agriculture & 2 Others Ex parte Samuel Muchiri W’njuguna& 6
Others.
• Bernard Gichobi Njira v Kanini Njira Kathendu & Anor [2015] eKLR, Miscellaneous
(Reference) Application 4 of 2015.

TOPIC 12: Procedures before specialized courts and Tribunals Week 12

(a) Procedures in Employment and Labour Relations Court

(b) Procedure before the Environment and land Court
(c) Business Premises Rent Tribunal
(d) Rent Restriction Tribunal
(e) National Environmental Tribunal

Topic Objective
By the end of the discussion of this topic and the relevant readings students should be able to
explain the salient features of procedure in the employment and labour relations court, business
rent tribunal, rent restriction tribunal and the national environmental tribunal.

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