CIVIL PROCEDURE II Lecture 1 14th January 03

ORDER OF PROCEEDINGS
The place and mode of trial is usually determined by type of trial and
proceedings. If you make an application by summons, then you will be
heard in Chambers.

Procedure 1 – where defendant elects not to call evidence

The Plaintiff or advocate makes an opening speech referred to sometimes

as an opening statement. After that the plaintiff witnesses are called,
examined cross examined and re-examined. After that the plaintiff or his
advocate sums up the case by making a closing speech. After that the
Defendant states their case and makes a closing speech.

Procedure 2 – Defence elects to call evidence

Advocates for the plaintiff makes an opening statement, the plaintiff

witnesses are called, examined, cross-examined and re-examined. After
that the defendant’s counsel makes an opening statement. After that the
defendant’s witnesses are called, examined, cross examined and re
examined. After the Plaintiff or his advocate sums up the case by making
the closing speech. Thereafter the defendant sums up the case and makes
a closing speech also. The Defendant can reply to the plaintiff’s closing.
The reply only covers new ground.

In cases where there are many defendants and many plaintiffs the same
procedure will apply but if the defendants are represented separately, then
the counsels will separately make their submissions separately by order of
appearance. Cross examination of witness will also follow the order in
which they proceed. Co plaintiffs will normally be represented by the same
counsel.

Who has the right to begin the case? Order XVII Rule 1

The plaintiff or the applicant has the right to begin. Of course there are
certain exceptions to that right to begin.

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1. Where the Defendant admits the facts alleged by the plaintiff but
raises an objection on a part of law. In such a case the defendant
should be entitled to begin by submitting on that part of the law.
For example, suppose one raises a plea of Res Judicata? In such
a case one can say that they have sued the defendant by they
have raised an objection on the part of the law a and in this case,
the Defendant has the right to begin on a plea of res judicata. Or
the Defendant raises the plea of limitation, they have the right to
submit on that point of law. However it is advisable that one
should always put it in the pleadings whatever plea they intend to
raise.

2. Where the Defendants admits the facts alleged by the plaintiff but
states that the plaintiff is not entitled to the relief that they seek for
example drawn from Seldon v. Davidson in which case the
plaintiff brought proceedings for recovery of a debt. In their
defence the defendants admitted that they received the money
from the plaintiff but pleaded that the money was a gift. In this
case the defendant has a right to begin.

Suppose there are several issues? May be it could be many different

parties and there is a dispute as to who should have the right to begin?
The court will direct that the party with the burden of proving the majority
of issues shall begin.

OPENING STATEMENT

What should it contain

It is usually a brief outline of either the defendnat’s or the plalintiff’s case,

usually it will state the facts simply. They will be telling the court the
witness that they intend to call and will be giving a preview of what they
intend to prove. Usually this is an introduction to the entire trial and it is
important that it is interesting, logical, believable and in a narrative form.
Usually it is not necessary for the Judge to record the opening speeches
unless one raises a point of law. It is important that a note should be
made in the court record that an opening speech was made. An

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 opening speech must not contain evidence. It should just be limited to a
statement of basic facts that the parties intend to prove or rely on as
defence.

After you make the opening statements, you move on to examination in

chief.

EXAMINATION OF WITNESSES

Examination in Chief

When you call a witness there are 3 stages

1. Examination in chief
2. Cross Examination
3. Re examination

Examination in Chief

The object of examination in chief is to elicit facts that are favourable to the
case of the party calling the witness. In other words the exam in chief is
when you question your first witness. Sometimes the plaintiffs themselves.
Normally they will be giving evidence that will be favourable to their case. It
is governed by two rules
(a) The witness cannot be asked leading questions – these are
questions that suggest the answer expected of that person. For
example you cannot ask Was your business running into financial
difficulties last year? You should ask what was the financial
position of your business last year? The art of knowing whether a
question is leading is learnt with experience.
(b) The examination must not be conducted in an attacking manner.
Usually at cross-examination you can attack but you cannot do
that to your own witness. If your witness turns hostile, you can
ask the court to declare the witness a hostile witness and once the
court does that; you can then attack the witness.

When a witness is declared hostile

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 (i) You will be allowed to impeach the creditability of that witness;
(ii) You can ask leading questions
(iii) You can ask them questions that touch on their truthfulness
and even their past character and previous convictions.
(iv) You can also be able to examine on certain issues by leave of
the judge e.g. you can question the hostile witness on
statements they made previously which is inconsistent with
their present testimony. This can help to show that the
witness is giving conflicting evidence which the court is allowed
to resolve when they are taking the evidence into account.
You must take witness statements. If they give evidence
inconsistent with the statement that they signed, you can impeach
their credibility and produce the witness statement.

CROSS EXAMINATION

There are 3 aims of cross examination

1. To elicit further facts which are favourable to the cross

examining party;
2. To test and if possible cast doubt on the evidence given by
the witness in chief;
3. To impeach the credibility of the witness.

Cross examination – the scope is wide one is allowed to ask leading

questions, question a witness on previous testimony, it is not restricted in
any way. A good Advocate will never forget the virtue of courtesy.

RE EXAMINATION

Once you have examined your witness in chief, the other side cross-
examines your witness. The re examination is a kind of retrieval process.
This is when you try to heal the wounds that were opened up in cross
examination. Most important, re-examination is strictly restricted to matters
that arose at cross u examination. The court also has powers to ask a
witness questions for the purpose of clarifying points.

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SUBMISSION OF NO CASE TO ANSWER

The defendant may make a defence of no case to answer after the

submission by the plaintiff. The Judge must decide whether there is any
evidence that would justify putting the defendants on their defence. Usually
if the submission of no case to answer is not upheld, the case continues. If
the court says that there is no case to answer, that ruling can be challenged
on Appeal.

TAKING DOWN EVIDENCE

Usually evidence of witnesses is taken orally in open court under the

direction of a Magistrate or Judge, it is normally written down in narrative
form i.e. not question and answer form but where there is special reason,
the evidence may be in question and answer form. The rule is that the
court may on its motion taken down a particular question verbatim and the
answer verbatim.

Where either party objects to a question and the court allows it, then the
court should record the question, the answer and the objection and the
name of the person raising the objection and if they make a ruling they must
also record the ruling of the objection raised. Tact is required as you may
find that. Sometimes if you object too much you can irritate the Judge.
Object only for important things.

In the course of taking evidence, the court may also record remarks made
by witnesses while under examination and normally after taking down the
evidence the judge will sign that evidence. The courts can also record
remarks and demeanour of a witness.

PROSECUTION & ADJOURNMENT OF SUITS

Public policy REQUIRES that business of the court should be conducted

expeditiously. It is of great importance and in the interest of justice that
action should be brought to trial and finalised with minimum delay. Order
XVI Rule 1 requires that hearing of cases should be on a day to day basis

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until all witnesses have testified. However this is not always possible and
that is why the court may adjourn a hearing on its own motion or upon
application by either of the parties where good course is shown. The rule
requires that adjournments can be granted where good cause is shown

Habib v Rajput the plaintiff case came up for hearing, the advocates
applied for adjournment on the grounds that their client was absent for
some unexplained reasons. The respondent opposed saying that his
witnesses were already in court and had come from very far away and it
was costing a few thousand shillings to keep them there per day. Was the
plaintiff’s reason good cause to adjourn. The court ruled that no sufficient
cause was shown and the application for adjournment was dismissed.

Kamil V. Merali

NO STEPS TAKEN – Order XVI Rule 6

Under Rule 6, where no application has been made or steps taken for 3
years by either party, the court may order the suit to be dismissed but
usually the application should show cause why the suit should not be
dismissed. Any case which is dismissed under Rule 6 can be instituted
afresh subject to rules of limitation.

Victoria Construction Co. V. Dugall

The court considered the meaning of steps taken within the meaning of
Rule 6. The Case was filed in November 1958 and in 1960 the Applicant
decided to refer the case to an arbitrator but attempts to resolve the dispute
through arbitration failed. The matter went to sleep until 1962 where the
registrar asked the parties to show cause why the suit should not be
dismissed. The Plaintiff contended that the steps to seek arbitration
amounted to steps taken. The question was whether an agreement to refer
the matter to arbitration was a step taken and the court held that that was
not a step taken and the case was dismissed. In this case, the court
explained

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 1. That one has to satisfy the court that the suit is ready to proceed
without delay.
2. One has to satisfy the court that the defendant will suffer no
hardship;
3. That there has been none frequent inactivity by the Plaintiff.

It is advisable at the time the case comes up for hearing to ask that it be
stood over generally (SOG) to give you time to go to arbitration and if you
are not ready, you can always go back to court and seek an extension.
This way there is a step taken.

CLOSING SPEECH

You are telling the court that you have presented your evidence, that you
have proved that so and so is liable and you will also be telling the court
that this is the law and if applied to the facts of your case then the law
should support your prayers. You will be telling the court of past decisions
that support your case. You will reconcile the facts, the law and past
decisions that support your case. You make your case in the closing
statements.

Facts Law Applicable authorities

The court has to reach a decision.

JUDGeMENT

After hearing is completed, the court will pronounce judgment. Rules 1 to 5

of Order XX deal with judgment and Rules 6 to 19 deal with Decrees.

WHAT IS A JUDGMENT?

A Judgment is a statement given by a Judge on the grounds of a decree or

Order. It is a final decision of the Court to the parties and the World at large
by formal pronouncement or delivery in open court.

Order XX Rule 4 to 5 set out essential elements of a judgment:

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 1. A Judgment must contain a concise statement of the facts of the
case;
2. Contain points for determination;
3. The decisions on each of those points;
4. Reasons for each of those decisions.

The Judgments must also show that the Judge applied their mind
intelligently. An important element under Rule 1 is that the court shall give
judgment in open court after the hearing or at a future date.

Order XX was amended by Legal Notice 36 of 2000 and requires that

judgment be pronounced in open court either at once or within 42 days from
the conclusion of the trial at which due notice shall be given to the parties or
their advocates.

Judgment must be dated and signed normally and it will be read and signed
by the person who wrote it. There is however a provision that a Judge can
read a judgment written by another Judge in special circumstances i.e.
where the Judge who wrote it has died but generally the rule is that the one
who wrote and signed the judgment must read it.

When writing a judgment, it is important that

1. One ensures there are no irregularities;
2. Judgement should not be vague and certain points should not be
left to inference.
3. It must be made of points raised in the pleadings in the cause of
trial;
4. It must record all points raised by all parties.

The statement of facts recorded in the judgment will be the conclusive facts
of the case.

All judicial pronouncements must be judicial in nature, sober, moderate and

language must be used in a restrained and dignified manner.

A Decree is a technical translation of the judgment capable of execution. In

the lower courts, a decree is drawn by the Deputy Registrar. In the High

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Court the parties themselves draw up the decree and take it back to court to
be sealed.

CIVIL PROCEDURE II Lecture 2 28th January 03

APPEALS

Every decree may be appealed from unless barred by some law. However
an appeal does not automatically lie against every order. Order XLII Rule 1
gives a long list of orders from which an appeal lies from as of right.

If you want to appeal on an order that is not on the list, you have to seek
leave of court. When you have a judgment you extract a decree. Orders
are gotten from small interim applications.

You can appeal against an order.

Amendments of pleadings, appeals lie as of right. Judgement in default is

appealable.

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For example the Armed Forces Act if you have a decision you can appeal to
the High Court. High court used to be the final court for petitions but now
you can go to the court of appeal

Application for leave to Appeal should be made in the first instance to the
court that made the order that is being sought to be appealed against. It
should be made by Chamber Summons or orally in court at the time of
making the order.

Appeals generally or the hierarchy of appeal

An appeal from the subordinate Courts

Appeals from the Resident Magistrate’s court lie to the High Court. Appeals
from the High Court lie to the court of Appeal.

One judge of the high court except in certain particular cases hears appeals
from the subordinate courts where the Chief Justice can direct that the
appeal be heard by two or more judges. Such directions may also be given
by the Chief Justice before the hearing of an appeal or at any time before
the judgment is received.

Where there are two judges and they disagree, under Section 60 where a
court consisting of two or more judges hears an appeal, the appeal should
be decided in accordance with the decisions of the majority of the judges.
In a case of two judges with a divided opinion, the appeal should be
dismissed and to prevent that they normally put an uneven number of the
Judges on the bench. Section 60 it says that the opinion of the majority of
judges should be upheld but Order 40 says that where the court is equally
divided, the Appeal should be dismissed. Section 60 will take precedent in
this case. Read Githunguri case.

When a decision has failed to determine some material issues of the law
It also has something to say where it was alleged that there was substantial
error or defect in the procedure.

HOW ARE APPEALS FILED?

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Appeals from the High Court are filed by lodging a memorandum of appeal
which is usually set out in the same manner as pleadings. The grounds are
set out in separate paragraphs and numbered consecutively and normally
the ground will indicate the reasons why you object to the decision of the
court. It is very important to make sure that your grounds are set out
comprehensively because you will not be able to make submissions on any
grounds not set out in your memorandum of appeal. You would have to
seek the leave of the court to submit on a new ground. The court has
discretionary powers and can deny you to do that.

The detailed format on how to prepare a memorandum of appeal is set on

in Sections 65-69 and in order 41. Section 65-69 enact the substantive law
as regards fast appeals while order 41 lays down the procedure relating to
it. The expression appeal and the expression memorandum of appeal
denote two distinct things. The Appeal is a judicial examination by the
higher court of the decision of a lower court. Whereas the memorandum of
appeal contains the grounds on which the judicial examination is invited.

In order for an Appeal to be said to be validly presented, the following

requirements must be complied with
1. It must be in the form of a memorandum setting forth the grounds
on which one objects to the decree.
2. It must be in the format and present as a record of Appeal.
3. The Appellant or their Agent must sign it.
4. It must be presented to the Court or to such officer as appointed
by the court.
5. A certified copy of the decree must accompany the Memorandum.
6. A certified copy of the judgment must accompany it unless the
court dispenses with it.
7. Where the Appeal is against a money decree the Appellant must
deposit the decretal amount or furnish the security if required by
the court.

HOW TO PREPARE A MEMORANDUM OF APPEAL

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A Memorandum of Appeal should be prepared by carefully considering the
following:-
1. The Pleadings;
2. The Issues – issues substantially in issue
3. The Findings thereon;
4. The Judgment and the decree and also the record of proceeding
in court. (the judge erred and misdirected himself in issues raised
before him)

You can only appeal on one issue. Suppose the court finds you negligent
and thus liable. You can appeal on the ground of damages and say for
instance that the judge erred in assigning the quantum of damages.

PRESENTATION OF THE APPEAL

The Appeal must be presented within a prescribed time. If the limitation

period for filing an Appeal has expired, you can apply for an extension of
time to file the appeal.

Read the Appellate Jurisdiction Act (Court of Appeal Rules)

STAY OF EXECUTION

The Appeal does not operate as a stay of execution. Even if an appeal has
been lodged, and all parties served, the decree holder can proceed and
apply for execution. However the judgment debtor can apply for a stay of
execution on the ground that an appeal is intended or that an appeal has
been filed. If no appeal has been filed but is intended the application for
stay of execution should be made to the court that has given the order or
the decree but an appeal has already been filed, the application for stay
should be made to the appellate court.

WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been

filed as soon as the notice of appeal is filed.

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Application for stay of Execution

Kiambu Transporters V. Kenya Breweries

It is made by way of Notice of Motion under Order 41 Rule 4 and Section

3A of the Civil Procedure Act. (Looks like a notice of motion).
The court looks at certain conditions before granting a stay of execution.
The following conditions must be satisfied before the court can grant a stay.

1. That the Application has been made without unreasonable delay.

2. That substantial loss will result to the Applicant unless such order
is made.
3. Security for due performance of the decree has been given by the
Applicant.

HOW THE COURT DEALS WITH THE APPEAL

Section 79 of the Civil Procedure Rules – The court has power to summarily
dismiss an Appeal. The Court has the opportunity in the first instance to
peruse the record of appeal and if they find there are no sufficient grounds
for interfering with the decree, the court may reject the Appeal. If the court
does not reject the Appeal, then it proceeds to hearing. The fact that the
court has admitted your appeal does not mean you cannot get a default
judgment so if you do not appear, the court can dismiss the Appeal for
default, it can also allow the Appeal for default. So just like a hearing, you
are required to appear at the hearing but unlike the High Court you do not
have to appear for the Hearing in person. You may find that in a case
where the appellant does not wish to appear but would like the Appeal to
proceed in that case you will file a declaration in writing that you do not wish
to be present in person or through an advocate. In such a case you must
then file two copies of your sole arguments that you desire to submit, once
you file the two copies one will be served on the respondent and the other
is retained in the court file. The option is also available to the Respondent;
they can file their response in writing.

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Suppose the Appellant appears and the Respondent does not appear, there
will be an ex parte decision. You can always apply to set aside an ex parte
judgment but you must show sufficient cause for not appearing.

PROCEDURE AT THE HEARING OF AN APPEAL

The procedure is that the Appellant has the right to begin. After hearing the
Appellant in support of the appeal, if the court finds that the Appeal has no
substance it can dismiss the appeal without calling the Respondent.
Additional of parties or amendments can be done in the Court of Appeal as
well.

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following
powers:
1. It can opt to determine the case finally;
2. Remand the case;
3. Frame issues and refer them for retrial;
4. Take additional evidence or require such evidence to be taken;
5. Order a new trial;

The court will take various options depending on the grounds raised in the
Appeal. The Appeal Court will confine you to points.

1. To determine the case finally – this power is exercised by the court

where the evidence on the record is sufficient to enable the Appellate
Court to pronounce Judgment and to finally determine the case and
this is the most common option of the court of appeal. It is where
from the record they are able to understand the problem and
determine the case. It is usually the case.

In certain cases the record of appeal may not be sufficient to enable the
Court to pronounce Judgment or to enable it finally determine the Appeal.
In which case they will opt to remand the case.

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Power to Remand the Case

The general rule is that the court should as far as possible dispose the case
or an Appeal using the Evidence on Record and should not be remanded
for fresh evidence except in rare cases. Remand basically means to send
back.

WHEN CAN THE COURT OF APPEAL REMAND A CASE?

1. Where the trial court disposed of the case on preliminary point

without hearing and recording evidence on other issues.
2. Where the Appellate Court disagrees with the trial court on the
preliminary point. In such a case the Appellate court will set aside
the judgment and decree of the trial court and remand the case to
the trial court for re-hearing and determination. The Appellate
Court may also direct what issues shall be tried in the case so
remanded. Read Wambui Otieno Case by passing an order of
remand the Appellate Court directs the lower court to reopen and
retry the case. On remand the trial court will readmit the suit
under its original number in the register of civil suits and they will
proceed to determine to hear it as per the directions of the court of
appeal. The court can only exercise the power to remand as set
out by the Rules.

Suit disposed on a Preliminary Point

What is a preliminary Point? A point can be said to be preliminary if it is

such that the decision thereon in a particular way is sufficient to dispose of
the whole suit without the necessity of a decision on the other points of the
case. A preliminary point may be one of fact or of law. But the decision
thereon must have avoided the necessity for a full hearing of the suit. For
example

Preliminary Point of Law.

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Suppose the issue of limitation of time or the doctrine of Res Judicata or the
issue that the pleadings do not disclose a course of action unraised at the
trial court this is an example of a preliminary point of law.
Preliminary Point of Fact – suppose a lower court dismisses the suit on the
ground that the plaintiff is estopped from proving their case because maybe
there was a prior agreement relating to the facts, again the same rule will
apply that as long as the decision was based on a preliminary point, then
the Court of Appeal will set aside that decision.
3. The Court has power to Frame issues and refer them for Trial

The Court of Appeal may order that certain issues be framed and that they
be referred to the lower court to be tried. The Court of Appeal will exercise
this power where the trial court did not frame issues properly or omitted to
try a certain issue or omitted to determine a certain question of fact that is
essential to the right decision of the suit upon the merits. The court will
frame those issues and then refer them to the lower court for them to be
tried. Normally it will refer them with certain directions. The court of Appeal
when they have all the issues on their bench can decide on the issues. The
court of appeal frames the issues sends them back to lower court and after
they are dealt with they are sent back to the court of Appeal.

4. Take additional evidence or require such evidence to be taken:

As we said at the beginning no additional evidence is taken at the court of

Appeal unless
(i) The lower court refused evidence which ought to have
been admitted;
(ii) Where the Court of Appeal needs certain documents or
certain evidence to enable it to pronounce judgment;
(iii) For any other substantial cause.

HOW DOES THE COURT OF APPEAL TAKE FRESH EVIDENCE

(a) The court of appeal may take the additional
evidence itself;
(b) It may direct the original court to take the evidence;
(c) It may direct a lower court to take the evidence for it

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Once the evidence is obtained, it is sent to the Court of Appeal and is used
by the Court of Appeal to make its decision

HOW IS FRESH EVIDENCE TAKEN

1. Where the lower court has improperly refused to admit evidence

that it ought to have admitted.
2. Where there is discovery of new evidence.

If it was not improper it cannot be used as a basis for the Court of Appeal to
Admit fresh evidence. The court of appeal may find out that there is certain
evidence they need to come to a final decision, they can ask for fresh
evidence to be taken or they can take it themselves, which is rare.

3.ORDER A NEW TRIAL

The power to order a new trial is intertwined with the power of review.

Civil Procedure-Lecture (3?)

Power to order a new trial

Usually this power is used in a situation where the entire trial was
considered or misconceived fact or upon the wrong law and therefore it
would not be possible for the appellant court to justifiably reverse, vary or
set aside that decision. In other words, it is the way the appellate court
looks at the way the case was conducted.

The appellate court is supposed to re-examine the decision of the lower

court and decide whether it was proper or whether the judges were in fact

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making a proper decision. And so if the court is not able to make that
assessment, because the court was given the wrong law or the wrong facts
or the case was conducted in such way that the appellate court cannot act
on, then it will just order a new trial. That is, the trial will be heard as if no
case had previously been brought before the court. And I think the best
example is the East African Television Network v KCC. It is a very useful
decision. What happened was that the lower court proceeded on the wrong
law or completely omitted to recognize a relevant law. In fact I remember in
that decision the Court of Appeal reprimanded both the lawyers for having
failed on their part. The Court of Appeal said, even if the judge failed, the
lawyers should not have failed in bringing the correct law to the attention of
the judge. These were very senior lawyers. I will not mention them because
it might be defamatory… That in fact comes up, the power of the appellate
court to order a new trial.

Also you will see in you supplementary list of authorities there is a whole
topic on the ordering of new trials and you should be able to look at it.

Review

Review simply stated means to look once again. Under the Civil Procedure
Act review is a judicial re-examination of the same case by the same judge
in certain circumstances. Section 80 of the Act gives the substantive right of
review in certain circumstances, while Order 44 provides the procedure
thereof.

The provisions relating to review constitute an exception to the general rule

that once a judgment is signed and pronounced by the court it becomes
functus officio. That means it ceases to have any control over the matter
or any jurisdiction to alter it. A court has pronounced judgment; it no longer
has any control over the matter. The matter can only go to the appellate
court or a court higher. It cannot change its mind about it. It no longer has
any control over it. The power of review is an exception to this rule. For the
power of review allow the same judge to look at his own judgment, once
again and correct it.

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WHO MAY APPLY FOR REVIEW?

First, any person aggrieved by the decree order may apply for review.
Usually they will apply for the review of the judgment where an appeal is
allowed and where the appeal has not yet been filed. So if you want to
apply for review you should do it before you appeal.

Who is an aggrieved party? A person who has suffered such legal

grievance or against whom a decision has been made or a person who has
been deprived of something or affected by the decision. In other words, a
person who is not a party to the decree or order cannot apply for review
because such a decree will usually not be binding on such a person and
therefore cannot be said to be aggrieved within the meaning of Order 44
and section 80.

Nature and scope of the power of review

First, the power of review should not be confused with appellate power.
Appellate power enables the appellate court to correct all errors committed
by the subordinate court.

In the case of review, the original court has the opportunity to correct their
errors within certain limits. We all know that it is an accepted principle that
once a competent court pronounces a judgment, that judgment must be
accepted and implemented. The decree holder should therefore not be
deprived of the fruits of that judgment, except in circumstances such as this,
which the power of review.

Also remember that review is not an appeal in disguise. Review enables the
court to look at the judgment again on specific grounds set up by statutes.

GROUNDS FOR APPLYING FOR REVIEW

Review can only be allowed under certain circumstances. It is not in all

cases that you are allowed to apply for review. It is only in certain
circumstances. The grounds are:

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 1. Discovery of new and important matter of evidence

2. Mistake or error apparent on the face of the record

3. Any other sufficient reason.

DISCOVERY OF NEW EVIDENCE

Review is permissible under these grounds if the applicant can show that
there has been a discovery of new and important matter of evidence. The
applicant must also show under this head that the discovery could not have
been made earlier despite the exercise of due diligence on their part. It is
important when you make an application under this ground you have to
show the court, and usually with a supporting affidavit, that you were not
hiding this evidence under the table so that you can use it to have an
opportunity to have the case to be looked at again. You would have to show
the court that you exercised due diligence and that information you never
found it, you did not know about it, it has just come to your attention. This of
course implies that if the other side can satisfy the court that this
information was always in your possession and power, then you will not be
able to rely on this particular ground. Secondly, when we talk of new and
important evidence, the evidence must be relevant and must be important.
And when we say important, it must be important because it is capable of
altering the judgment. So even though the evidence is new, it is relevant,
you have exercised due diligence, but it will not alter the judgment, then you
will not be able to rely on this ground. Review will not be granted.

I would like you to read the case of Fais Muhamed. This case has to do
with liability. After the judgment had been made or pronounced, a document
was discovered containing conclusive admission of liability. Here the court
held that was a good ground for review. It was relevant. The case had to do
with liability. It was not previously available and it was definitely going to
alter the decision.

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Also read the case of Mary Josephine v Sydney. This was a decree for
the restitution of conjugal rights. It had already been passed and it was
subsequently discovered that the parties were cousins and therefore the
marriage was in fact null and void. In this case review was granted.

In the case of Khan v Ibrahim, the court had issued a communication for
examination of witnesses in Pakistan. It later came to the attention of the
court that new information had been discovered which revealed that there
was no reciprocal arrangement between the two countries. Like if a Kenya
court gives an order for a commission for the examination of witnesses in
the UK, you discover subsequently that no reciprocal arrangement between
the Kenyan courts and the courts in the UK, then that is a good reason for
review.

I would also like you to read the case of Rao v Rao. In this case the suit
was dismissed on two grounds:

1. For want of notice as required by law

2. On the grounds of the illegitimacy of the plaintiff.

It was later discovered that there was evidence revealing that the plaintiff
was legitimate. An application for review was made on the grounds that
there was discovery of important evidence. But here the court held that the
application for review could not be granted. Why? In this particular case the
evidence was not capable of altering the judgment. Because remember the
case was dismissed on two grounds – one for notice and secondly the
legitimacy of the plaintiff. So even though the evidence that had been
discovered can show that the plaintiff was legitimate, it was only one ground
of dismissal. The issue of want of notice remains. In such a case you
cannot under that rule apply. It must be capable of altering the judgment.

MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD

The word error apparent on the record is not defined by the Act and also it
cannot be conclusively and satisfactorily defined. Once an error, it can be
an error of fact or an error of law. And an error can be said to be apparent if

21
it is self-evident and requires no examination or argument to establish it.
Very important. If it is self-evident and requires no examination or argument
to establish it.

I also would like to refer you to this case, Thumbbhadra. Here the
Supreme Court attempted to define this particular ground and it said that an
error is apparent where it is indicative without any elaborated argument.
One can be able to point out and say that is an error. It is said it is one that
stares one in the face. It is one where there could reasonably be no two
opinions entertained about it.

I will give you an example. You remember the case of the Koigi wa
Wamwere trial, tried by Justice Tuiyot where I think Koigi wa Wamwere
was charged with robbery with violence and actually sentence for robbery
with violence. But I think Justice Tuiyot sentenced him to life imprisonment.
Can you see that is an error on the face of the record? All you have to do,
you don’t have to travel beyond the record to establish that it was an error.
All you have to do is say this is the charge, robbery with violence, and this
is the punishment prescribed for the offence. Can you see that? An error
apparent on the face of the record is an error that you do not have to travel
beyond the record to be able to establish. It is one that you don’t even have
to make an argument. The moment you have to make a long submission
and supporting authority to point out there is an error. An error apparent is
one that stares you in the face. All you have to say, look here, look here,
and that is enough. If it is an affidavit, if you need to call witnesses to
establish it is not an error on the face of the record then you will have to
look for some other law on which to ask for permission for review. You
cannot rely on error apparent on the face of the record.

Another example is, suppose a law has been amended and the court
proceeds on the old law, an appeal can be maintained. Can you see that?
That is an error apparent on the face of the record. All you have to say: this
case was heard during this period. There is an official record saying that the
law has since been changed. That is enough reason.

OTHER SUFFICIENT REASONS

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Again any other sufficient reasons are not defined by the Act. And basically
I would say that this particular one exists for the purposes of giving the
court flexibility.

What has been argued, the current argument that exists before the court is
that should that sufficient reason be related to the two previous grounds or
should be an independent one. Other people say that the analogy should
be drawn from the other two grounds -- error apparent on the face of the
record and discovery of new evidence. But there have been some decisions
that say it does not have to be. Just to enable the court—it might be a
reason where common sense calls that it must be adduced but it does not
fall under apparent error on the face of the record and does not fall under a
discovery of new evidence. So my opinion is, it should be for those reasons,
which are not covered by the two, but common sense and justice requires
that it be reviewed. But in most decisions they all agreed with me. And you
don’t have to agree with me.

Suppose the court proceeded on the wrong facts. You can’t really say new
information has been discovered. But the court misapprehended the facts.
So there is new evidence that has been discovered. There is no discovery
of new evidence. There was no mistake, really. It is just that the court was
told the facts but it misunderstood the facts. Can you now see that I would
call that a case of sufficient reason. My meaning of sufficient reason is
anything that cannot be covered by the two previous grounds. But
remember that is not agreed by all authorities. There are several authorities
that say it has to be analogous—that is the word they use from analogy—
from the other two reasons.

So we are done with the power of review, but I will tell you how you make
an application for review.

Something for you to note: There is no inherent power of review. Law

confers the power of review.

When you make an application you have to cite the enabling statute at the
top there. You will see that sometimes people write under section 3A, which
says:

23
“Nothing in this Act shall limit or otherwise affect the inherent power of the
court to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of court.”

So you see there are many other kinds of applications that you can make
under the court’s inherent power. But I always say anybody who goes under
section 3A, either a layperson or does not know the enabling law. Does not
sufficiently know situation that is why he goes under section 3A. It is your
best shot if you are not sure what law to plead. But in the case of review
you can never apply for review under sect ion 3A. You can only apply for
review as conferred by statute, section 80 and all that it says.

[Section 80: “any person who considers himself aggrieved (a) by a decree
or order from which an appeal is allowed by this Act, but from which no
appeal has been preferred; or (b) by a decree or order from which no
appeal is allowed by this Act, may apply for a review of judgment to the
court which passed the decree or made the order, and the court may make
such order thereon as it thinks fit.”]

TO WHOM IS THE APPLICATION MADE?

An application for review should be made to the very judge who passed the
decree or made the order. But if the judge is no longer available, it should
be heard by the successor to that office.

WHAT IS THE FORMAT OF THIS APPLICATION?

An application for review should be in the form of a memorandum, like that

of the memorandum of appeal.

WHAT IS THE PROCEDURE AT THE HEARING?

Application for review may be divided into three stages:

1. an application for review commences ordinarily with an ex parte

application by the aggrieved party. Upon such application the court

24
 may reject it at once if there is no sufficient ground or, the second
option, the court may issue a notice calling upon the opposing party to
show cause why review should not be granted. The person who wants
a review makes an ex parte application to the court. The court may
look at it and say the ground as laid in section 80 does not exist. In
that case it will dismiss it. If it finds that there may be some grounds
then the court issues a notice calling the other party to show cause
why review should not be granted. And that takes you to the second
stage.

2. In the second stage, the application for review shall be heard inter
parties by the same court that posted the decree. Upon hearing both
parties, the court may decide there is no basis for review and reject the
application. If court finds there is a basis, the rule will be made
absolute. That means the application will be allowed and the court will
order the case to be re-heard and that takes you to the third stage.

3. In the third stage, the matter will be heard on the merits, usually the
court will hear it at once or may it will fix for a hearing for a later date.
The court will hear the matter in relation to that case, where the
mistake was, or may be in relation to the new evidence that has come
into light. And once the court finishes hearing the case it will either
confirm its original decree or vary it. And once that decision has been
made—remember we said a review is done where there is an appeal
allowed but the appeal has not be been filed. So what happens
supposing the court now varies that particular decision. If you are still
not happy with this now you can now go to appellate court for the
proper order or proper decree. Remember we did not want you to go
to court without exercising your right to review first. Because you
would actually be going with the wrong decision ….Okay. No one
stops you, but it is better whenever your case has a decision, look at
that decision first and say, do you want it reviewed before you go to
the Court of Appeal. Once you write to the Court of Appeal, then you
will be subjected now to the power of the appellate. So the court may
want to remand the case and they want to do that, etc. Because may if
it finds it so inaccurate it cannot make a decision. So you better look at
first your right of review in the light of that particular judgment. So once

25
 the new judgment comes out and you not happy with it, now you go to
the appellate court. And remember suppose the court—remember we
said that first and section stage the court can dismiss your application
for review. But supposing the court dismisses your application for
review. You can appeal against a refusal for an order to review.
Remember that. You can appeal against an order for refusal to review.
But please note, you cannot review a review order. You cannot tell the
court, now this review is another mistake. You cannot do that. Simply
put you cannot review a review order.

And for that I would like you to look at the case of the Official Receiver
and Liquidator v Freight Forwarders Kenya Ltd, Civil Appeal No. 235 of
1997. Here the court looked at the ground of any other sufficient reason.
Especially looked at the decision of Akiwumi. Also looked at the decision of
Justice O’Kubaso.

Also look at the case of Kimita v Watibiru. It is in volume one of the Kenya
Appeal Reports, KAR 1982-88, page 977. This is a decision where the court
was deciding whether any other reason, any other sufficient cause should
be looked at within the interpretation of the first two preceding rules. Also
you should read the case of the National Bank of Kenya v Ndung’u Njau,
Civil Appeal No. 211 of 1996. Here the court took the position that review
cannot take the place of an appeal. The fact that a judge erred is not
sufficient ground for review within section 80. The alternative for the
aggrieved is to appeal. In fact let me read you the relevant fact. The court
here held, you don’t have to write, just listen:

“A review may be granted whenever the court considers that it is necessary

to correct an apparent error or omission on the part of the court. The error
or omission must be such evidence that should not require an elaborate
argument to be established. It will not be sufficient grounds for review that
another judge would have taken a different view in the matter. Okay.
Normally the grounds for review that the court preceded on incorrect
exposition of the law and law and written an erroneous conclusion of the
law. Misconstruing a statute or other provisions of the law cannot be a
ground of review. In the instance case, the matter in dispute had been fully
canvassed before the learned judge. He made a conscious decision on the

26
matter in controversy and exercised his discretion in favour of appellant. If
he had hit the wrong conclusion of law it could only be a good ground for
appeal but not review.”

Remember when you file an appeal, basically you are telling the court is
that the judge has erred here and there. You are saying he made an error.
So if he misappraised the law or reached a different conclusion of the law,
you are now making an appeal they interpret the law differently. In that
case, you will appeal so that the decision can be examined again. But the
fact that the fact that we are saying the judge made an error does not mean
that is a ground for review. The application for review should be confined
within the three setups… Now we can look at execution proceedings:

EXECUTION PROCEEDINGS

When you have got a judgment, the judgment may say that—a judgment
has so many things—you have the statement of the facts, the claim of the
plaintiff, the claim of the defendant. Then the court will toy around with the
interpretation, what evidence they took in, why they disregarded this
evidence, why they accepted that evidence, etc., etc. Then finally comes
out with the conclusion. Then the court will conclude and say that we think
so-and-so is the owner of the property, we think they are entitled to
damages of 10 million shillings, etc. Just having that judgment is not
enough cause to celebrate. In fact, from there on another job begins for the
lawyer. In fact I have got one quote for you from somewhere:

“Execution is not a subject that consumes practitioners, judges or even

academics with much enthusiasm. The problems which arise do not usually
lead to interesting legal arguments. They usually result in dissatisfied
creditors, downcast creditors, infuriated judges and advocates. However, if
you think for a moment you will probably come to the conclusion that
execution is one of the most important stages of litigation. Some mitigation
consist of deciding of intricate questions of law and fact, followed by … by
the losing party but by far the largest proportion of mitigation is taken up by
cases of debt-collecting types where obtaining judgment is the easy part of
the process. The really difficult part in the case arises when the judgment
come to be enforced. It is for this reason that execution is probably one of

27
the most important aspects of mitigation in an advocate’s work particularly
at the beginning of his career where both sides of debt collection forms a
large part of his work,” etc. etc.

Basically what we are saying is that execution is almost like starting another
case all over again and it is not exciting for lawyers because by that time
they finished arguing. When you go to execution you are going into debt
collection. So you move outside the law and move to debt collection.

Execution is when you reduce the judgment to execution

WHO MAY APPLY FOR EXECUTION?

1. Decree holders

2. Legal representative of the decree holder

3. The person claiming under the decree holder

4. The transferee of the decree holder

Conditions attached to number 4: Here the decree should have been

transferred by operation of law. The application for transfer should have
been made to the court that made the decree. The notice should have been
given to the transferor and the judgment debtor.

AGAINST WHOM IS THE EXECUTION DONE?

1. The judgment debtor

2. The legal representative of the judgment debtor (only liable to the

extent of the property of the deceased).

3. Where the court passes a decree, the person in whose favour it is

passed is known as a decree holder. The decree can also be
executed against the property of the judgment debtor. It can also be

28
 executed against the person of the judgment debtor. This means you
can put them to civil jail.

WHICH COURT EXECUTES THE DECREE?

The decree may be executed by the court that passed the decree or by the
court to which it is sent for execution.

Upon the application of the decree holder the court that passed the decree
may send it to another court for execution. But there are four conditions that
must be satisfied before this transfer is allowed:

1. if the judgment debtor actually and voluntarily resides or carries on

business or works for gain within the local limits of the jurisdiction of
such other court.

2. if the judgment debtor has no property within the local limits of the
jurisdiction of the court which passed the decree.

3. where the decree directs the sale of immovable property situated

outside the local limits of the jurisdiction of the court that passed the
decree

4. where the court that passed the decree considers for any other
reason to be recorded that such other court should execute the
decree.

WHERE THE DECREE IS SENT

Where a court sends a decree it should be accompanied with the following

documents.

1. a copy of the decree

2. a certificate to the effect that the decree has not been satisfied within
the jurisdiction of the court that passed it.

29
 3. a copy of the order for execution of the decree and, in the case
where there is no such order, should be accompanied with a
certificate to that effect.

We will see in a short while, once you obtain a decree you have to make an
application for an execution order. So even when an execution order has
been made, that order will be forwarded to the court that is going to
execute. If the order has not been granted, while we are waiting for the
execution order, in that case we will say it has not been granted, there will
be a certificate to the effect that an execution order has not been granted,
so that that court can be able to do that.

You will get from the library an application for execution, an Execution
Decree, just a standard form. Think it is called Civil 5D.

APPLICATION FOR EXECUTION

A decree will not be executed unless the decree holder applies for
execution. So don’t sit there and celebrate your judgment. It cannot execute
itself. If the decree holder desires to execute, he must apply for execution
either to the court that passed the decree or the court to which the decree is
sent for execution. If the judgment debtor had entered appearance but
failed to file a defence and a judgment in default is obtained then the court
will not issue an execution order unless the judgment debtor is given at
least 7 days notice of the fact that judgment has been entered against
them.

Due notice is at every stage.

In the case where the decree is for money payment the court may upon the
oral application of the decree holder at the time of passing the decree they
can ask for immediate execution by arresting the judgment debtor,
especially if they are within the court precincts. Otherwise every application
for the execution of a decree should be made in writing signed by the
applicant or his advocate stating that they require an execution order.

30
So the general rule is that you must apply for an execution order in writing
to the court.

WHAT SHOULD THE APPLICATION CONTAIN?

1. The number of the suit

2. The names of the parties

3. The date of the decree

4. It should indicate whether an appeal has been filed

5. Whether payment or other adjustments have been subsequently
made in court.

6. Whether any previous has been made subsequent to the decree, the
amount of interest due decrease the amount of cost of any the name
of the person against the execution is fought

THE MODE IN WHICH THE ASSISTANCE OF THE COURT IS

REQUIRED

There are several modes of assistance depending on the nature of the

case, such as attaching property, civil jail.

Read the case of Heco Ubersee Handel v Marx Pharmaceutical Ltd ,

Court of Appeal No. 4 of 1999. The case concerns whether, if you make a
claim in foreign currency should the execution be in foreign currency or
Kenya shillings?

Read the case of R v the Managing Director of Kenya Posts &

Telecommunication.

Modes of execution

31
After the decree holder files an application for an execution order, the
executing court can enforce execution. The decree may be enforced by

1. Delivery of the property specified in the decree

2. Attachment and sale

3. Sale without attachment of the property

4. By arrest and detention in civil prison

5. Any such manner as the nature of the relief requires

POWERS OF THE COURT TO ENFORCE EXECUTION

Section 38 of the Act defines the jurisdiction and powers of the court to
enforce execution. The manner of execution of a decree is laid down under
the rules in Order 2.

Section 38 sets out in general terms the various modes in which the court
may order execution. Usually the decree holder will have to decide which of
the several modes they will execute. The mode they select will be subject to
limitations and conditions prescribed in the rules.

Execution depends on the subject matter. In the case of movable property,

for example, normally you will execute by delivering to the person it has
been granted, and therefore it will be executed by seizing and delivering
that property. Suppose the judgment debtor refuses to release that
property: you can have them arrested.

Sometimes you can merely attach the property, e.g. a vehicle by notifying
the Registrar of Motor Vehicles. This power can only be used where the
property is under the possession of the judgment debtor or his agent.

What about immovable property? Usually you can execute by removing the
judgment debtor from that property and putting the decree holder in
possession.

32
Sometimes delivery of property can be symbolic. It does not always have to
be physical and actual possession.

For both movable and immovable property, you can attach and sell, where
the execution order empowers the decree holder the power to attach and
sell the property. An order allowing attachment is different from an order of
sale, unless you apply for both at the same time.

The Civil Procedure Rules provides the manner in which a sale can be
conducted. Once a property has been attached it cannot be transferred. It
becomes property of the court. Such transfer would be void if it is done. It
becomes property of the court, until it is sold. And how do you attach? By
attaching a prohibition order at the Registrar of Titles or Registrar of Motor
Vehicles, etc.

HOW IS THE SALE DONE?

The mode of selling is set out under Order 21. It states sale can only be
conducted by public sale, by an officer (auctioneer) appointed by the court.
A public notice to advertise the intended sale must be posted and the court
can direct the manner in which the sale will be directed in giving the order.
Usually public notice and advertisements should be done by decree holder
and after the judgment debtor have been notified. Notice should state date
and time and place of sale, and usually the amount that is intended to be
recovered or the encumbrance of the property, and any other information
that is material as directed by the court.

The notice should be at least 30 days in the case of immovable property

and 15 days in the case of movable property. These time periods can be
changed if the goods are perishable or subject to decay.

The court still has the discretion to adjourn the sale and usually the officers
in charge of the sale will be served with notice. If adjourned by more than 7
days a fresh public notice must be given.

There are many reasons for adjournment.

33
ARREST AND DETENTIONS

You can execute by arresting and committing to civil jail the judgment
debtor but usually this is not granted unless the judgment debtor has been
served with a notice to show cause why they should not be committed to
civil jail.

Appointment of receivers
You can also execute by appointment of receivers. You appoint receivers
as an interim measure or as a mode of execution.

Cross decree
You can also execute by cross decree. This where each party has a decree
against each other. Execution in this manner is possible only:

1. where the same court receives application for the execution of the
cross decree

2. where each decree is for payment of money

3. where both decrees are possible of execution at the same court

4. where parties file decrees of the same characters in the same court

If you sell the property for more, the balance should be given to the
judgment debtor. And if the property sells for less, you can execute for the
unpaid balance.

For conjugal rights you can execute for the money or property equivalence.

If the judgment debtor refused to sign documents, say a transfer of title, the
court can replace their signature with that of an official of the court.

CAN YOU STOP EXECUTION?

34
You can stop execution by objection proceedings. Where property is
attached the attachment may be objected to through objection proceedings.
Any person who is entitled to have any legal or equitable interest in the
property to be attached may at any time before sale or paying out of the
proceedings of the sale object in writing to the court.

Usually they will start by issuing a notice setting up the nature of the claims
briefly, usually to the Court Registrar. Once received, the court should order
stay of execution and call upon the decree holder to inform the court
whether or not in the light of this notice they still intend to proceed with the
execution. This intention should be notified within 15 days or a period
prescribed by the court.

If the decree holder fails to respond within the prescribed time and does not
sate that they propose to stay with their execution, then that execution will
be lifted. But if the decree holder proposes to proceed with attachment and
execution then the court will issue a notice to the objector directing him to
take proceedings to establish claim within 10 days or such period as the
court may direct.

Objection proceedings are by way of chamber summons supported by an

affidavit to be served upon the decree holder.

GARNISHEE PROCEEDING

[garnishment-a judicial proceeding in which a creditor (or potential creditor)

asks the court to order a third party who is indebted to or is bailee for the
debtor to turn over to the creditor any of the debtor’s property (such as
wages or bank accounts) held by that third party.
Garnishee – a person or institution (such as a bank) that is indebted to or is
bailee for another whose property has been subjected to garnishment.
garnish-to subject (property) to garnishment]

Usually a garnishee is a third party who is indebted to the judgment holder,

usually that garnishee must be within the jurisdiction of the court.

35
So if you want to execute against a person and they have no money but
you know there is a third person who owes them money, you can executive
against the debt by instituting garnishee proceedings.

You apply to the court for the attachment of the debt. The court will order
the garnishee to appear before the court to show cause why he should not
pay the debt due to the judgment holder. Referred to as order nisi, to
appear and explain the debt. When the garnishee appears in court they can
either say, I don’t dispute the debt and that they are willing to pay, or the
garnishee can dispute liability of that debt, or they can just fail to appear. If
they fail to appear the court will give the order against them. If they agreed
to pay, the debt will be satisfied. If they dispute, the court will hear the case.

That is the end of execution.

[nisi-Latin for “unless”-(Of a court’s ex parte ruling or grant of relief) having

validity unless the adversely affected party appears and shows caused why
it should be withdrawn.
Decree nisi-A court’s decree that will become absolute unless the adversely
affected party shows the court, within a specified time, why it should be set
aside]

CIVIL PROCEDURE Lecture 4 25.2.03

REFERENCE OR CASE STATED

Order XXXIV of rules empowers a subordinate court to state a case and

refer the same for the opinion of the High Court. Such an opinion is sought
when the court itself feels some doubt about a question of law. The High
Court may make such order as it may deem fit. The right of reference is
fundamentally different from the right of appeal.

36
The Right of Appeal vests in the person instituting the suit while the right of
reference is fundamentally vested in the court. The object for this provision
is to enable the subordinate court to obtain in non-appealable cases, the
opinion of the High Court on a question of law so as to avoid commission of
an error which could not be rectified later. Kamburu V. R. gives a good
example of when a reference may be used. The question in this case was
whether the Armed Forces Act provided reference from a court martial to
the court of appeal.

CONDITIONS FOR REFERENCE

1. There must be a pending suit or appeal in which the decree is not

subject to a decree or a pending process in execution of such a
decree
2. It has to be on a question of law which must have arisen in the
course of proceedings or the appeal;
3. The court trying the suit or appeal must entertain reasonable
doubt on that question of law.

PROCEDURE

An application for reference over a question of law is either made by the

court on its own motion or on the application of any of the parties. The
court if it agrees to refer the matter will draw up the statement of facts of the
case and formulate the questions of law to which an opinion is sought.
Usually when the court makes this reference it will stay proceedings in the
matter until it gets a response on the reference. Sometimes people refer to
this reference as case stated but reference is the correct word.

REFERENCE TO ARBITRATION

There are situations where matters are referred to arbitration under an

order of the court. This happens where the parties may during the
proceedings or hearing at any stage of the hearing agree to have any
dispute between them referred to arbitration. A matter may be referred to
arbitration by the court in exercise of its own discretion so as to enable it
make a decision. Reference to arbitration as set out in a prior agreement

37
between the parties is different from where parties agree in the course of
litigation to take the same to arbitration but the parties must inform the
court.

PAUPER APPEAL
Any suit can be instituted by a pauper, a pauper is a person not possessed
of sufficient funds to enable them to pay the prescribed filing fees to the
court. A matter will not be deemed filed in court unless the requisite fees
are paid and we recognise that some people might not be able to pay that
fee. The people falling under this category will normally apply for
permission to file a suit without paying the requisite fees. A person writes a
letter to the court usually to the deputy registrar of that court explaining that
they are unable to pay fees. It is in the same manner as the pleadings by
the applicants themselves or their authorised agents.

Order XXXII deals with the procedure to be used for one to apply to be
allowed to file a suit without paying fees. Once the person has written a
letter to the court, the court will hear them as to their state of their
pauperism. Usually the court will question their limits regarding economic
ability and their inability to pay the requisite fees. Usually the court upon
being satisfied that the person does not have the money should grant the
application. The court may only reject the application, as set out under rule
5 and that is: -

1. If it is not framed and presented in the prescribed manner;

2. Where the applicant is not a pauper;
3. Where the applicant has in the last two months disposed of any
property;
4. Where the suit does not established a course of action;
5. Where he has entered an agreement with the 3rd party in reference
to the suit property or subject matter.

Mandevia V. Rungwe African Co-operative Union

The court held that permission to sue as a pauper is a statutory right

subject only to Rule V.

38
Bamuzale V. Andrew Corret

COSTS IN RELATION TO PAUER APPEAL

Where a pauper plaintiff or defendant succeeds in any suit, and they are
paid a sum of money then they will be required to pay the court fees at that
stage. If they are the successful parties and they are awarded costs, those
costs will go to the court. If they are unsuccessful, then they will not be
required to pay any costs.

Article – The poor in civil litigation by Richard Kuloba – The Advocate

Magazine Vol II No. 1

ORDER OF COSTS

Generally speaking the right to costs as against another party, arises only
after the court has made an order for costs. The right to costs arises only
after the court has made an order to that effect but there are instances
when costs may arises without an order
1. If a Plaintiff by notice in writing without leave of court wholly
discontinues the action; within 7 days they may tax their costs in
court.
2. Where the Plaintiff withdraws a particular claim in the action
without leave. If they do that immediately the defendants will have
to tax their costs.

3. If the Plaintiff accepts money paid into court before the trial has
began then he must within seven days tax his costs.

WHAT IS TAXATION OF COSTS

Taxation of costs means a proceeding where the costs are scrutinised by

the officer of the court usually the deputy registrar. Usually the decision of
the court is that the appeal has been dismissed with costs to the
defendants.

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