A demand letter is a formal notice demanding that the addressee perform a legal obligation on specific terms and within specified time. The letter gives the recipient a chance to perform the obligation without being taken to court. It is sent before commencement of a suit it serves to inform the adversary of the pending claim.
The purpose of a demand letter and notices prior to litigation is to afford both parties an opportunity to avoid embarking on unnecessary litigation or incurring additional costs, especially within the context of our overburdened judiciary. Where it is excluded, a party may not be able to claim for costs in the suit. This is provided for under Order 3 Rule 2 of the Civil Procedure Code.
A demand letter should be signed by an advocates that is to mean that a demand letter should not be drawn by an unqualified person.
CONTENTS OF A DEMAND LETTER
- A date, recipient’s contact information
- The authority to act for the claimant
- A summary of the matter in issue
- A demand for a specific relief
- A deadline by which the matter must be settled
- Consequences of non-adherence to the demand of claim
The term “demand” stated in the body of the letter to direct the recipient to act accordingly the period a party must normally be given to respond to a letter of demand:
- 7 days where the recipient resides in a different town in Kenya,
- Not less than 10 days where he resides in a different town in Kenya,
- 15 days where he resides outside East Africa
A demand letter should be signed by an advocate. It is a document that is chargeable under the Advocates (Remuneration) Order, 2009 and therefore attracts the prohibition under Sections 34 & 35 cap 16, i.e., not to be drawn by an unqualified person, or remuneration thereof accepted by an unqualified person. Further, signing in the name of the firm is not sufficient as it is not safe as it may lay the demand letter open to challenge as not being given either by the party or by an advocate as his representative on his behalf.
It must be kept in mind that the demand letter or notice will later become highly relevant in subsequent applications and hearings in the suit, as well as to an assessment of the conduct of parties.1
Express provision is made in the Civil Procedure Rules, 2010 for a court to order that particulars of any notice pleaded to be supplied to the opposite party. A demand letter would obviously adversely affect the element of surprise and thus the efficacy of the court orders.
PARTIES TO A SUIT
On commencing a proceeding, a person becomes a Plaintiff in an action or an Applicant in an application. On filing an action and being served with summons or other notice in an action, a person becomes a Defendant without the necessity of the defense being filed.
STANDING TO SUE/LOCUS STANDI
Locus standi is the status which the law requires of a person to enable him to invoke the jurisdiction of the court in order to be granted a desired remedy. Standing refers to the relationship which must exist between the Plaintiff and the cause of action to enable the Plaintiff to move the court. The basic principle behind this is that the court’s time should not be wasted over hypothetical and abstract questions or at the insistence of a mere busy body that has no genuine grievance.
An infant is under a disability at law which prevents them from assuming the rights and liabilities of an adult. A minor is a person under the age of 18 and they sue by their next friend and defend by their guardian ad litem. The next friend must sign a written authority which must be filed with the Plaint. The object of the next friend is to protect the interests of the minor and guaranteeing of costs if the Plaintiff’s claim fails and to ensure due conduct of proceedings.
Where the minor in an existing action becomes of age, their next friend should not take any further action in the proceedings. The former infant may either adopt or repudiate the existing proceedings.2 Where they elect to proceed with the suit, they shall apply for an order discharging the next friend and for leave to proceed in their own name. Where they elect to abandon the suit they shall, if a sole Plaintiff apply for an order to dismiss the suit on repayment of the costs incurred by the Defendant or opposite party, or which may have been paid by his next friend. The application shall be made ex parte by Chamber Summons.
The rules of the court provide that administrators or executors of the estate of the deceased person may sue or be sued on behalf of or representing the estate. The administrators of an estate is appointed by the Grant of Letters of Administration while the executor named in a Will being appointed by a court through Grant of Probate. An administrator should not commence an action in that capacity unless administration of that estate has been granted to them by the court.
HOW TO APPROACH THE COURT
Legal proceedings are commenced when a Plaintiff makes a complaint before a court in due form. Every pleading in civil litigation/proceedings shall contain information as to the circumstances under which it is alleged that liability has arisen.3 Object of the pleading is to determine the character of the dispute before court for determination.
Every pleading shall have its heading, the court and location of the court and the title of the action. The pleading should summarize the material facts on which the party pleading relies on for their claim or defence but not the evidence that will prove the facts. Any facts presumed by law to be true shall not be pleaded unless specifically denied by the other party.
Parties to a suit may approach the court at first instance by use of the following pleadings:
- The Plaint
- Originating Summons
- Notice of Motion
- Chamber Summons
THE PLAINT IN GENERAL
The Plaint is the pleading in which the Plaintiff states the basis of the law suit. Generally the Plaint does the following:
- Identifies the Plaintiff/s and Defendants in the law suit, and describes their status and capacity to sue and be sued.
- Describes the factual basis for the lawsuit.
- Makes a request or demand for some relief from the court.
- Contains a statement showing that the court in which it is filed has the proper jurisdiction and venue.
The Plaint shall be divided into paragraphs and numbered consecutively. There should be a brief statement summarizing the material facts upon which the party relies for his claim. No evidence should be plead in the Plaint.4The facts should disclose where the cause of action arose and dates, sums and other numbers shall be expressed in figures.
Every Plaint shall contain the particulars of any claim including particulars of misrepresentation, fraud or willful default on which the Plaintiff relies. A statement indicating that demand has been made to right the wrong but the same has not been complied with. A demand letter to this end is therefore an accompanying document as under Order 3 Rule 2(d) and where it is pleaded it should have been made.
The advocate shall sign the Plaint and indicate giving his address as the person who has drawn it. The address of the person being served should also be provided. The subscription and verification the signature of the advocate filing the document, the date, and Plaintiff’s statement (Verifying Affidavit), under penalty of perjury, that the contents of the Plaint are true.
A Verifying Affidavit sworn by the Plaintiff, witness statements, list of documents and list of witnesses should accompany the Plaint. Ensure that the verat is contained on the same as the signature the Plaintiff. The suit will commence once the Plaint has been filed.
The Originating Summons is provided for under Order 37 of the Civil Procedure Ruled and is used only where the Civil Procedure Rules provide for it or some other statute especially permit that method of approaching the court such as the Advocates Act, Limitation of Actions Act and the Law of Succession Act. The method of Originating Summons is intended for simpler, shorter and speedier process.
Usually when you approach the court by Originating Summons there are no witnesses and evidence is by way of an Affidavit. Therefore the question for decision by the court is raised directly in the Summons and the evidence is raised by use of Affidavits. The issues for determination are raised in a concise manner but with sufficient particulars to enable the court identify the issues and the cause of action.
An Originating Summons is used when parties have a special relationship such as in agreements for sale or purchase of immovable property but only in cases where the existence of an agreement or contract is not in dispute.5
An Originating Summons shall be prepared by the Applicant or their advocate and filed in court. Where it appears to the court, at any stage of the proceedings commenced by Originating Summons (O.S) that the proceedings should be continued as if the cause had begun by filing a Plaint, then the court may order that proceedings continue as such and order any affidavits filed to stand as pleadings.
Applications by way of Chamber Summons are used when seeking orders within a pending suit. The Applications are normally requested for certain orders and the court will not usually grant the orders unless it has heard both sides. However, if it is an urgent matter and irreparable harm will be occasioned, the court can grant the order ex parte after hearing one side.
An ex parte order is only granted upon the understanding by that party that they shall file the substantive suit and serve the other side within the period specified by the court. Every Summons shall state in general the grounds of the application usually supported by evidence in an affidavit.
NOTICE OF MOTION
A Notice of Motion is a procedure used to commence proceedings in court where there is no outright procedure on how to commence proceedings. It is provided for under Order 51 of the Civil Procedure Rules. It must include a concise statement of the nature of the claim, relief or remedy required and the evidence relied on if any, should be by use of an affidavit.
Section 25(2) of the Government Proceedings Act provides the list of applications which may be made by way of a Notice of Motion.
In all matters brought under certificate of urgency:
- The urgency must be self-evident in the certificate, or the grounds.
- The Judge shall have discretion to grant interim orders or give directions in chambers on the basis of the pleadings and documents in support of the same without hearing counsel or party in the matter.
- The Judge shall have discretion on whether to hear counsel or a party orally at the ex-parte stage.
- In order to facilitate expeditious extraction of orders relating to urgent applications, the applying advocate/party may prepare draft orders in soft copies when coming to court. The Court will approve the draft with or without amendments and have a fair one executed and sealed shortly after grant of the orders sought.
A Petition is a formal Application made to the court in writing that requests action on a certain matter. Since the promulgation of the 2010 Constitution of Kenya, Kenya has seen major improvements and developments in the promotion of democracy and respect of human rights. Constitutional law has been a topic of discussion and contention over the years up to recent times.
In respect to recognition of rights of the common mwanachi, the right to petition Parliament in a democracy is of immense importance for safeguarding the rights of the citizens. The Constitution of Kenya gives a broader framework to any citizen a right to petition public authorities and in particular Parliament to consider any matter within its authority, including right to enact, amend or repeal any legislation.6 This can be done by any citizen or by a Member of Parliament on behalf of the citizen(s). As required by the Constitution, Parliament enacted the Petitions to Parliament (Procedure) Act (No. 12 of 2012) to make provision for the procedure for the exercise of this right. Further, Part XXV of the Standing Orders of the Senate also make provision of how this right will be enjoyed or exercised.7
The documents needed in constitutional law include constitutional petition and judicial review applications.
A Petition is distinguished from a Plaint or a memorandum of claim which seeks an order for damages and performance from the opposing party.
The person starting an action is called a Petitioner and the person defending the action is called the Respondent. If the proceedings are started with a Petition, there are no witnesses but instead the Petitioner is heard by a judge and the evidence is presented by affidavits only. Where the Petitioner intends to rely on documents, the document shall be annexed to the Supporting Affidavit. The Petition and annextures shall be served fifteen (15) days from the date of filing with the proof of service being an Affidavit of service.
The Constitution of Kenya Practice and Procedure Rules 2013 provides that a Petition shall disclose the following:
- Petitioner’s name and address
- Facts relied upon
- Legal provisions relied upon
- Nature of injury caused or likely to be caused to the Petitioner or the person in whose name the Petitioner has instituted the suit.
- The Petition shall be signed by the Petitioner or the advocate of the Petitioner and
- The relief sought by the Petitioner
In a Constitutional Petition where the Attorney General is a party or Respondent, the Attorney General or the state organ concerned shall reply within fourteen (14) days by way of a Replying Affidavit and if any document is relied upon it shall be annexed to the Replying Affidavit.
Any other Respondent will within seven (7) days file a Memorandum of Appearance and either a:
- Replying Affidavit
- Statement setting out grounds to be relied upon to oppose the Petition.
Judicial Review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts, tribunals, and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.8
It’s the procedure used by courts to supervise the exercise of public power.it is used to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large. The Fair Administrative Action Act 2015 states that;” a person who is aggrieved by an administrative body’s action or decision may seek a review for its actions or decision from either the law courts or tribunals under the said jurisdiction”9
Some of the grounds for a Judicial Review application include; Ultra vires, Jurisdiction error, Error of fact and Error of law.
LEGAL BASES OF JUDICIAL REVIEW IN KENYA
Judicial review is founded on the inherent jurisdiction of the court to fight maladministration. When judicial review is given a legal basis, this is done merely to recognize the importance of judicial review because judicial review exists irrespective of legal recognition. In Kenya, the main legal bases of judicial review are:
- Constitutional Judicial review under the former constitutional regime was embodied under Section 65(2) of the repealed Constitution, which empowered the High Court supervisory role over subordinate courts and other persons exercising judicial or quasi-judicial functions. Under the Constitution of Kenya, 2010, the bases of judicial review include:
- Article 47(3)(a): Parliament shall enact legislation to give effect to the right to fair administrative action and for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal
- Article 165(6): The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function
- Article 165(7): In exercising its said supervisory jurisdiction, the High Court may call for the record of any proceedings before any subordinate court or person, body or authority, and make any order or give any direction it considers appropriate to ensure the fair administration of justice.
- Statutory. The substance of judicial review in Kenya is governed by the Law Reform Act,10 especially Sections 7 and 8.
- Subsidiary Legislation. The procedure for applying for judicial review in Kenya is provided for under Order 53 of the Civil Procedure Rules, 2010 which was made by the Rules Committee under Section 81 of the Civil Procedure Act.
When an administrative body acts or exercises power beyond what is provided for under the law or the instrument granting such power and authority to it, the administrative body is said to have acted ultra vires.
An administrative body is said to have acted ultra vires in two instances;
Substantive Ultra vires; is when an administrative body acts beyond its powers every action taken by a body in excess of or without lawful authority or jurisdiction, its decisions are rendered null and void and will be quashed by the courts.
In Lady Justice Joyce N.Khaminwa v J.S.C and another11; It is the Applicant’s contention that the decision to retire her upon attaining 70 years is ultra vires the powers of the 1stRespondent whose functions are clearly set out in Article 172 of the Constitution of Kenya and there is no provision that confers to it power and authority to retire a judge. The letter from the respondent purports to serve as a notice of retirement.
Procedural Ultra Vires is when an administrative body fails to follow its procedure where a statute authorizes a body to undertake a certain task, it is very likely that it will also stipulate the procedure to be followed in executing the task. Where this happens the execution of the task will be null and void if the prescribed procedure is not followed.
In considering the effect of procedural irregularities, courts usually draw a distinction between mandatory and mere directory procedural requirements. A mandatory procedural requirement must be strictly adhered to by the authority in question. Failure renders the decision invalid and amendable to be quashed by the court. In Maina vs. Nairobi Liquor Court. The Liquor Licensing Act required the chairman of the Liquor Licensing Court to give a 30 days’ notice to a licensee accused of misconduct summoning him to attend a meeting at which his conduct was to be looked into .In this case the licensee was given a fortnights notice of the meeting and his liquor license was withdrawn. The court found out that the fortnights notice was unprocedural.
Directory procedure merely serves as a guide, the non-observance of which does not render the resultant decision invalid.
In the case of Irungu Kangata and others vs. University of Nairobi, the applicants who were students from University of Nairobi were suspended by the university pending a disciplinary case. Soon thereafter the university convened its Senate Disciplinary Committee (SDC) and required the applicants to appear before it. At the end it deliberately expelled some and suspended others. The applicants applied to quash the decision on the grounds inter alia that the SDC was not procedural since the regulation of the university required that any disciplinary case against students be dealt first with the Halls Disciplinarian Committee and College disciplinarian Committee before proceeding to the SDC on appeal.
The Fair Administrative Action Act 2015 in section 7(2) states that a court or a tribunal under subsection (1) may review an administrative action or decision if the person who made the decision was not authorized to do so by the empowering provision which is a clear remedy.
JUDICIAL REVIEW REMEDIES IN KENYA
In Kenya, there are only three remedies that the courts can grant for judicial review, namely: Certiorari; Prohibition; and Mandamus. Whether the courts will grant one of these remedies depends on the circumstances of each case.
PROCEDURE OF APPLYING FOR JUDICIAL REVIEW IN KENYA
Under Order 53 of the Civil Procedure Rules, 2010, the procedure of applying for judicial review is divided into two stages:
- Leave stage
- Main application
Leave to institute judicial review is a mandatory stage.12 The High Court mainly uses the leave stage as a sieving mechanism. Leave stage helps in weeding out frivolous applications for judicial review. For example, to apply for judicial review (at both leave and main application stages), a person must be having locus standi which is crucial as you must have the capacity to sue. Previously, a restrictive test was used, that is, one had to be an aggrieved party. This meant that you should have been directly affected by the decision or action in question. However, this restrictive test was abandoned and today one just needs to show that they have a sufficient interest in the matter under review. If you do not have sufficient interest in the matter, the court will not grant you any of the orders. Further, public spirited persons (those who seek to defend public interest) have locus standi. The objective of the requirement of locus standi is to lock out busy bodies or unmerited litigants.
In terms of the limitation period for seeking a certiorari, a person is required lodge his judicial review application within six (6) months from the date the offending action arose.13 Time limitation is not stipulated for Mandamus or Prohibition but it is required that you file the application within a reasonable time.
- Order 53 Rule 1
- Order 53 Rule 2
An application for leave is made to a judge in chambers, and the person whose decision or action is being challenged does not participate at the leave stage since the application for leave is made ex parte.14 The application for leave is made through the following documents:
- Chambers Summons and Supporting Affidavit. Any documentary evidence will be annexed to the Supporting Affidavit
- Statement. This contains the description of the applicant, reliefs sought, and the grounds of judicial review
- Verifying Affidavit. This verifies the facts relied on.15
During the hearing of the application for leave, the judge will not dwell too much on the merits of the application. Instead, the judge will only determine if the application raises an arguable and prima facie (on the face of it) case with a probability of success.
If the applicant is granted leave, then that leave may operate as a stay of the offending decision or action that is the subject of the application for judicial review until the determination of the application or until the judge directs otherwise.16 Stay only applies to an application for certiorari and prohibition, not mandamus.17 However, whether leave will operate as stay will depend on the discretion of the judge.18 The judge may choose to hear the question of leave and stay separately,19 but case law has established that leave and stay must be heard by the same judge.
If the application for leave is successful, then the applicant will extract the order of the High Court (including whether leave will operate as stay). This will be with a view to serving the order upon the person whose decision or action is the subject of the judicial review proceedings.
- Order 53 Rule 1(2)
- Order 53 Rule 4
After extracting the order made by the court at the leave stage, the applicant will prepare the main application for judicial review in the form of Notice of Motion accompanied by a Supporting Affidavit.20 The Notice of Motion must be filed in the High Court within 21 days of the grant of leave.21
The Notice of Motion should then be served upon the Respondent and all persons who are directly affected by the application.22 Copies of all the documents relied on during the leave stage such as the Statement and affidavits will also be served on the Respondent.23 Service of the Notice of Motion must be done at least eight clears days before the hearing date.24 The applicant must prepare and file in court an affidavit of service describing how the application for judicial review was served, or not served, upon persons who should have been served.25 The High Court may adjourn the hearing of the Notice of Motion if it is of the opinion that service was improper or incomplete.26
The Statement cannot be amended unless with leave of the court.27 This is considering that grounds or relief not contained in the Statement cannot be relied on during the hearing.28
The Respondent will responds to the application for judicial review by preparing and filing in the High Court a Replying Affidavit on which any documentary evidence may be annexed. The High Court may allow the parties to swear further affidavits to respond to new matters arising from their respective affidavits.29 Parties are advised to exchange among themselves copies of affidavits that they intend to use at the hearing.30
On the hearing date of the application, the applicant has the right to begin presentation of his case.31He will be followed by the Respondent and then any other party. The hearing takes place in open court. The hearing is usually through highlighting the documents filed by the applicant, respondent and any other party. Oral testimony such as through witnesses is very rare. If you have any witnesses, ask them to swear and file affidavits containing their testimony.
Order 53 Rule 3(1)
Order 53 Rule 3(2)
Order53 Rule 4
Supra note 12
Order 53 Rule 3(3) 26Order 53 Rule 3(4)
Order 53 Rule 4(2)
Order 53 Rule 4(1)
Supra note 19
Order 53 Rule 4(3)
Order 53 Rule 5
At the end of the hearing, the High Court will deliver a judgment either allowing or dismissing the application for judicial review. Any party aggrieved by the judgment (or denial of leave) has a right to appeal to the Court of Appeal.32
An Affidavit is a written statement of facts, voluntarily made by the deponent under an oath or affirmation administered by the person authorized to do so. It is a formal written statement setting out the facts of your case and used to present evidence facts of the case in court. An Affidavit must contain only facts and not opinions.
Drafting an Affidavit involves critical thinking on how to persuade the court that one’s position in a factual dispute is the correct position. An effective Affidavit comprises four factors:
- Credibility: The court must be able to believe what the deponent has stated.
- Knowledgeable: If the deponent/witness lacks knowledge in the subject upon which the witness is testifying, there is no basis to believe the witness statement.
- Factual: The court considers facts in reaching a decision.
- Relevance: An Affidavit has to address topics that help the court in resolving the dispute.
THE RULES OF PROCEDURE
The Civil Procedure Rules provide the general rules of Affidavits. The power of the court to order any particular facts to be proved by affidavit.33The court may require deponent to be cross examined upon the application by a party or on its own motion. Affidavits should be dated, signed and should indicate the place of abode and postal address of the deponent.34
Affidavits should contain facts within the deponent’s knowledge. If a deponent is swearing an Affidavit on behalf of several applicants, it should be clearly stated as so and should be drawn in the first person, divided into paragraphs and numbered consecutively.
Section 8(5) of Law Reform Act
Order 19 Rule 1 Civil Procedure Rules
Order 19 Rule 4 Civil Procedure Rules.
An Affidavit must have a jurat (where the Affidavit was sworn) e.g. Nairobi, Kisumu, Mombasa e.t.c. Only qualified persons should draft or prepare documents or instruments relating to legal proceedings.35Every person who endorses an Affidavit shall endorse their name and address or their identification particulars of their firm.36Therefore, the culmination of the affidavit must include a statement by an officer authorized to administer an oath stating that the deponent appeared before them. An Affidavit must contain the authorized officer’s signature and stamp.
EXIHIBTS WITHIN AN AFFIDAVIT
One may attach important documents that they want the court to consider as evidence. These are the annextures/exhibits to the Affidavit. Any exhibit that is referred to in an Affidavit must be marked as such by the person commissioning the Affidavit. The person commissioning the Affidavit will stamp each exhibit with an exhibit stamp.
CONTENTS OF AN AFFIDAVIT
- General Heading: Parties to the suit, file name and court name.
- Deponents Statement: The deponent has to be identifies.
- Knowledge Statement: First numbered paragraph in the Affidavit.
State whether the deponent is the Plaintiff, Defendant, Applicant or the Respondent in the suit. Further state that the deponent has personal knowledge of the information and facts being pleaded in the Affidavit.
FORMS OF AFFIDAVITS
- Verifying Affidavit: Used together with the Plaint to verify the contents of a Plaint.
- Affidavit of Service: Used as evidence to show that service has been effected on a party to the suit.
- Supporting Affidavit: Mostly used in applications such as Notice of Motion, Chamber Summons, Originating Summons and the Petition. In this Affidavit facts are stated and evidence is adduced by attaching exhibits or annextures.
- Replying Affidavit: Is a principal document where the Respondent replies to the allegations set out in an application by the Plaintiff/Applicant.
- Further Affidavit: Used when the deponent wishes to include additional and material facts to the case. Usually filed where a Replying Affidavit was already filed.
Section 34 Advocates Act
Section 35 Advocates Act
CULMINATION OF TRIAL
JUDGMENT AND DECREE
A judgment or order is an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
A Judgment is therefore a final decision of the court on the facts of the case at the end of the entire trial procedure. The distinction between a judgment and an order is that the former is a final decision in an action, while the latter is an interlocutory decision, though it may have the effect of ending the action.
A decree means a formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
A decree is derived from the judgment or order and must thus bear the date of the day on which the judgment or order was delivered. A successful party in a suit has a duty to extract a decree and submit it for approval of the other party – however failure to do so is not fatal.
CONTENTS OF A DECREE
A Decree is a technical translation of the judgment capable of execution. The parties themselves draw up the decree and take it back to court to be sealed.
The decree should contain:
- the number of the suit,
- the names and descriptions of the parties,
- particulars of the claim, and
- shall specify the relief granted or other determination in the suit
- A decree shall bear the date of the day on which the judgment was delivered
Any party to a suit in the High Court may prepare a decree and give it to the other party for approval, if the draft is approved by the parties, it shall be submitted to the Registrar who if satisfied it is drawn up in accordance with the judgment shall sign and seal the decree and it becomes the official decree.37
If one party does not receive an approval or rejection of the decree within 7 days, the party making it shall give notice in writing to that effect to the Registrar and if satisfied that the draft decree has been drafted in accordance with the judgment, shall sign and seal the decree accordingly. On any disagreement with the draft decree, any party may file the draft decree marked as “for settlement” and the Registrar shall list it in chambers before the judge who heard the case (or any other judge, if unavailable) and give notice to the parties.
The Supreme Court shall be the highest appellate court and final court of appeal in civil matters.38An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or an order, including an interlocutory order given by the High Court in exercise of its original jurisdiction.
Where an appeal emanates from a judgment or order of a chief magistrate in exercise of their original jurisdiction, but not including an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal that the appeal concerns a matter of law of great public or general importance, or if the SC considers, in its overall duty to see that justice is done, that the appeal should be heard.39
COURT OF APPEAL
An appeal shall lie to the Court of Appeal from such decisions of the High Court, courts having the same status as the High Court, or other tribunals as may be prescribed by law.
The appeal shall be from judgments or decrees from the High Court or the other courts and tribunals mentioned above.
Orer 21(8) (2) Civil Procedure Rules
Art 163(3) Constitution of Kenya
Sec 16(2) Supreme Court Act
The High Court has appellate jurisdiction to determine appeals which lie to it by virtue of any enactment from decisions of the magistrates’ courts and other subordinate tribunals. Any person aggrieved by an order of a registrar may appeal from the order to the High Court and the appeal shall be by way of Notice of Motion. (Look at the sample Notice of Motion Application).
Any person affected by an order or decision of a taxing officer may appeal within 30 days to a judge of the High Court who on such appeal may make any order that the taxing officer could have made. An appeal shall lie from decrees and orders made on appeal by a chief magistrate, with the leave of the Chief Magistrate or of the High Court to High Court.
Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in the same manner as pleadings as provided for in Order 42 rule 1. 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 and the court has discretionary powers and can deny you that.
LEAVE TO APPEAL
An appeal is a creature of statute and where there is no such right, then an appeal shall be by leave of the court. An appeal under the Civil Procedure Rules, 2010 shall not lie from any other order save with leave of the court making the order or of the court to which the appeal would lie, if leave were given.
Application for leave to appeal should be made in the first instance to the court which made the order that is being sought to be appealed against. It should be made by Notice of Motion within 14 days from the date the order is made or orally in court at the time of making the order.
The main aim of the leave requirement is to prevent frivolous and needless appeals, it also helps uphold the principle that there should be an end to litigation and it also does the potential litigant service by refusing them leave to appeal where their appeal is clearly doomed to fail.
APPEALS ON MATTERS OF JUDICIAL DISCRETION
Where a decision is based on the exercise of discretion of a judge, such a decision will not be reversed merely because the appeal judges would have exercised the discretion differently if they had been presiding in the court below. When a decision against the exercise of discretion on an interlocutory matter is appealed against, the appellate court must not substitute its own ‘discretion’ for that of the judge.
The function of the court in interlocutory appeals is ‘primarily a reviewing function’ and the judge’s decision should be reversed only in cases:
- where the appeal court is satisfied that the trial judge has erred in principle;
- In order to promote consistency in the exercise of their discretion by judges as a whole where there appears, in closely comparable circumstances, to be two conflicting schools of judicial opinion as to the relative weight to be given to particular consideration.
TIME LIMITS AND TRIGGERING EFFECTS
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. As per the Civil Procedure Rules, a party has 14 days with in which to file an appeal to the higher court for determination.
APPEALS FROM A SUPERIOR COURT
An application for leave of appeal shall be by Notice of Motion. The party applying for leave can do so informally at the time of the delivery of judgment or order or they may make a formal application. The effect of failure to obtain leave of court where it is required will result in striking out of the appeal. Once leave has been granted the appellant will proceed to file a Memorandum of Appeal.
NOTICE OF APPEAL
The first document that must be filed is a notice of appeal. The notice in writing shall be lodged in duplicate with the Registrar of the superior court within 14 days of the date of the decision against which it is desired to appeal.
Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the decision and where it is intended to appeal against a part only of the decision, shall specify the part complained of, shall state the address for service of the appellant and shall state the names and addresses of all persons intended to be served with copies of the notice.
A notice of appeal shall be substantially in the Form D in the First Schedule and shall be signed by or on behalf of the appellant.40
MEMORANDUM OF APPEAL
A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the court to make.
The grounds of objection shall be numbered consecutively. A memorandum of appeal shall be substantially in the Form F in the First Schedule and shall be signed by or on behalf of the appellant.
RECORD OF APPEAL
The record of appeal shall contain copies of the following documents:
- an index of all the documents in the record with the numbers of the pages at which they appear;
- a statement showing the address for service of the appellant and the address for service furnished by the respondent and as regards any respondent who has not furnished an address or service, their last known address and proof of service on them of the notice of appeal;
- the pleadings;
- the trial judge’s notes of the hearing;
- the transcript of any shorthand notes taken at the trial;
- the affidavits read and all documents put in evidence at the hearing, or, if such documents are not in the English language, certified translations thereof;
- the judgment or order;
- the certified decree or order;
- the order, if any, giving leave to appeal;
- the notice of appeal; and
- Such other documents, if any, as may be necessary for the proper determination of the appeal, including any interlocutory proceedings which may be directly relevant.
REQUIREMENTS OF A VALID APPEAL
- It must be in the form of a memorandum setting forth the grounds on which one objects to the decree.
- It must be in the format and present as a record of appeal.
- It must be signed by the appellant or their agent.
- It must be presented to the court or to such officer as appointed by 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 memorandum must be accompanied by a certified copy of the decree unless the court dispenses with it. Where the appeal is against a money decree the Appellant must deposit the decretal amount or furnish the security if required by the 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 memorandum of appeal or the notice of appeal, as the case may be, is filed. Under Order 42 rule 13(1) upon notice being delivered to parties within 21 days after service of memorandum of appeal it is now the duty of the appellant to cause the appeal to be listed for direction through a chamber summons application. (Look at the format of a Chamber Summons Application above.)
DOCUMENTS REQUIRED TO BE IN THE COURT RECORD
- The memorandum of appeal;
- The pleadings;
- The notes of the trial magistrate made at the hearing;
- The transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;
- All affidavits, maps and other documents whatsoever put in evidence before the magistrate;
- The judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal.
POWERS OF APPELLATE COURT
Upon hearing the appeal the appellate court may exercise the following powers:
- It can opt to determine the case finally;
- Remand the case;
- Frame issues and refer them for retrial;
- Take additional evidence or require such evidence to be taken;
- Order a new trial;
- Mbogo Vs Shah (1968) EA 94
- Order 32 Rule 12(1) Civil Procedure Rules.
- Order 2 Rule 1 Civil Procedure Rules
- der Rule 3(1) Civil Procedure Rules
- Order 37 Rule 3 Civil Procedure Rules
- Article 37 and 119 of the Constitution of Kenya 2010
- Halsbury Laws of England, 4th Edition, page 91
- Fair Administrative Action Act 2015 S.7(1)(2
- Cap 26 of the Laws of Kenya
- Kenya law reports