Kenya’s legal system is rooted in common law principles, primarily governed by the Civil Procedure Act, Chapter 21 of the Laws of Kenya. This Act forms the foundation of civil procedure law and serves as a basis for more specific Civil Procedure Rules that outline the procedural steps for civil proceedings. These rules aim to promote the primary objectives of the act, which include the fair, speedy, proportionate, and cost-effective resolution of cases. A Rules Committee, authorized under Section 81 of the Act, is responsible for establishing rules related to civil court procedures. However, it’s important to note that these rules do not apply to bankruptcy, company winding-up, non-contentious probate, or matrimonial proceedings.
In Kenya, the civil court system is organized hierarchically, as defined in Chapter 10 of the Constitution of Kenya 2010. It consists of both superior and subordinate courts. The Superior Courts include the Supreme Court, the Court of Appeal, and the High Court. Additionally, the Employment and Labour Relations Court (ELRC) and the Environment and Land Court (ELC) hold equal status with the High Court. Each of these courts has specific jurisdiction and responsibilities, with the Supreme Court handling presidential election disputes and appeals, the Court of Appeal functioning as an appellate court, and the High Court having unlimited original jurisdiction in civil matters and handling questions related to the Bill of Rights.
Subordinate Courts encompass Magistrates’ Courts, Kadhis’ Courts, Courts Martial, and other local tribunals as established by parliamentary acts. The High Court maintains supervisory jurisdiction over all subordinate courts, along with individuals, organizations, and authorities exercising judicial or quasi-judicial functions. The Magistrates’ Courts are categorized by different classes of magistrates, each limited by fixed pecuniary jurisdiction. Kadhis’ Courts have jurisdiction solely over matters of Muslim law related to personal status, marriage, divorce, or inheritance, involving parties professing the Muslim faith. Courts Martial are military courts with authority over matters arising from the Kenya Defence Forces, and decisions can be appealed to the High Court.
When contemplating a civil claim, the aggrieved party must promptly dispatch a formal demand letter to the offending party, necessitating a formal response within a reasonable timeframe. The statutory time constraints for civil claims in Kenya are outlined in the Limitation of Actions Act, Chapter 22. Actions stemming from tort have a three-year limitation, while contract-based actions are limited to six years. Libel and slander actions must be initiated within 12 months of the occurrence. Proceedings against national and county governments following a tort must commence within 12 months, while those grounded in contract require initiation within three years. Land-related cases are subject to a 12-year limitation. Exceptions to these limits apply in cases of fraud or mistake, where the clock starts upon the plaintiff’s discovery. Employment disputes generally have a three-year limitation, except for negligence actions, which carry a one-year limitation.
The process of commencing civil proceedings in Kenya involves the submission of pleadings to the civil court registry, with the plaintiff’s first pleading being the “plaint,” which outlines the legal cause of action and the desired relief. Once the necessary pleadings are filed, the suit is officially initiated. Summons are then issued to the defendant to appear in court. Various methods of service exist, including personal service, substituted service, electronic mail service, and mobile-enabled messaging application service. When service is required outside Kenya, an application for “Service Abroad” is submitted to the court. Foreign proceedings in Kenya are preferably served through internationally recognized courier services. Additionally, pre-action interim remedies can be sought in Kenya, where parties can apply for interim relief, subject to criteria like a prima facie case, potential irreparable harm, and the balance of convenience.
Claimants’ pleadings should include a summary of material facts and necessary particulars, with allegations divided into consecutively numbered paragraphs. Pleadings can be amended at any stage of the proceedings with leave of the court, and there are no significant restrictions on amending them. Pleadings can also be withdrawn before the suit is set down for a hearing, and such withdrawal does not preclude future actions.
Order 2, Rule 1 of the Civil Procedure Rules mandates that a statement of defense must include information regarding the circumstances in which the alleged liability has arisen. Additionally, Order 2, Rule 2 allows the defendant to request further information if they find the pleadings insufficient, but this request must be made before the appearance time limit expires. Order 2, Rule 3 specifies that the statement of defense should also contain the material facts upon which the defendant relies for their defense, not the evidence. In the case of actions for land recovery, specific grounds of defense must be pleaded (Order 2, Rule 4(2)). In defamation actions, the defendant must specify which words they allege to be statements of fact and provide particulars of their truth or support (Order 2, Rule 7). Furthermore, a defendant can file a counterclaim or a defense set-off against the plaintiff’s claims as per Order 7, Rule 3.
The time limit for serving a statement of defense is 14 days from entering an appearance in the suit, as per Order 7, Rule 1 of the Civil Procedure Rules. If the defendant fails to appear, the plaintiff can request judgment for a liquidated amount, and a similar process applies to claims that combine liquidated and other claims. The defendant can raise preliminary objections disputing the court’s jurisdiction. Joinder and consolidation of parties are allowed in appropriate circumstances, and the court may consolidate suits with common questions of law or fact or related transactions. Split trials or bifurcation of proceedings can be ordered by the court when it deems it necessary for the convenience of the proceedings, as stipulated in Order 3, Rule 8 of the Civil Procedure Rules.
The rules pertaining to the admissibility and relevance of evidence in Kenyan civil proceedings can be found in the Evidence Act, the Civil Procedure Act, and the Civil Procedure Rules. Section 5 of the Evidence Act dictates that only evidence related to facts in issue and facts declared relevant by the Act can be presented in a suit or proceeding.
The Evidence Act is divided into two parts. Part I addresses the admissibility and relevance of evidence in a trial, while Part II concerns admissions by parties and the effect of such admissions as evidence in a trial. Admissions do not serve as conclusive proof but can operate as estoppel.
Evidence in a trial can take the form of oral or documentary evidence. While oral evidence may be used to prove any fact except for the contents of documents, it must be direct. Documentary evidence can be primary or secondary. The general rule is to prove documents using primary evidence, unless obtaining primary evidence involves unreasonable delay, in which case secondary evidence can be used to establish the existence of the original document.
Regarding expert evidence, it is allowed when the court needs to form an opinion on foreign law, science, art, or to authenticate handwriting, fingerprints, or other impressions. Experts owe their duty to the court. The court can order parties to prepare and exchange a Settlement Conference Brief, which may include expert reports and relevant document portions. The court may also appoint a neutral expert if there’s a dispute over the reliability of an expert witness.
As for judgments and orders, various types are issued based on the circumstances, such as final judgments, interlocutory judgments, ex parte judgments, and consent judgments. The court can also grant interim orders for commissions, arrest before judgment, attachment before judgment, temporary injunctions, appointment of receivers, and security for costs.
The courts have the authority to issue binding declarations concerning parties’ contractual and civil law rights and obligations, interpretation of contracts, statutes or other documents, the existence of facts, or principles of law. Such relief can be sought even if no party has suffered a loss or breach of contract/duty. The burden of proof rests with the party making the assertion.
Local courts have discretionary power to make rulings on damages, interests, and costs of litigation. The court exercises this power judiciously based on the facts and circumstances of the case.
In terms of recognizing and enforcing judgments, domestic judgments can be executed through various means outlined in the Civil Procedure Rules, such as attachment and sale of goods or arrest and committal to civil jail of the judgment debtor. The recognition and enforcement of foreign judgments follow the Foreign Judgments (Reciprocal Enforcement) Act 1984, requiring registration in Kenya. However, without a reciprocal agreement, foreign judgments may be enforced through common law provisions.
Appeals against judgments of civil courts can be made from subordinate courts to the High Court. Parties can appeal a decree or order of the High Court to the Court of Appeal, and further appeals to the Supreme Court are allowed for matters involving the interpretation or application of the Constitution.
In Kenya, formal mechanisms exist to encourage the settlement of claims. Order 11, Rule 5 of the Civil Procedure Rules mandates the court to convene a settlement conference within 60 days for fast-track cases and 90 days for multi-track cases after the case conference. Parties are required to prepare and exchange a Settlement Conference Brief at least seven days before the conference, which includes a summary of facts, issues, the law, witness lists, and expert reports.
Alternative Dispute Resolution (ADR):
Kenya offers several methods of ADR. These include:
1. Conciliation: A third party restores relationships and clarifies misperceptions between disputing parties. It is recognized in statutes like the Employment Act 2010.
2. Mediation: Parties appoint a neutral third party to facilitate a consensual resolution. The High Court has a court-annexed mediation program.
3. Arbitration: Governed by the Arbitration Act 1995, it allows parties to refer disputes to a neutral third party whose decisions are final and binding. The principles include party autonomy, confidentiality, fairness, and efficiency.
4. Traditional dispute resolution mechanisms: Recognized among communities and in Kenya’s Alternative Justice Systems Policy.
5. Ombudsman: Handled by the Commission on Administrative Justice, dealing with maladministration and overseeing the implementation of the Access to Information Act 2016.
6. Adjudication: A dispute resolution mechanism in construction contracts.
7. Tribunals: Quasi-judicial bodies established by Acts of Parliament.
Laws governing these methods include the Constitution, Arbitration Act 1995, and Civil Procedure Act, which provide a legal framework for ADR.
In criminal cases, ADR is generally limited, especially in felony cases. Established precedent determines the suitability of arbitration based on public policy and the nature of the dispute.
Kenyan courts provide limited assistance in ADR. They can issue interim or provisional measures, assist in appointing arbitrators, and assist in taking evidence. However, court intervention in arbitral proceedings is subject to specific criteria and grounds.
The available ADR methods are binding once an award is issued (arbitration) or a settlement is reached (conciliation, mediation). Appeals against arbitration awards are limited, and no “right of appeal” exists. While there are no sanctions for refusing mediation, courts encourage parties to pursue ADR. The Court Annexed Mediation Programme allows a mediator to file a Certificate of Non-Compliance, and the court may make relevant orders.
Major ADR institutions in Kenya include the Nairobi Centre for International Arbitration, the Chartered Institute of Arbitrators (Kenya Branch), the Strathmore Dispute Resolution Centre, and the Mediation Training Institute.
