GPR 328-INTRODUCTION

CIVIL
PROCEDURE
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DEFINITION AND INTRODUCTION

 The Law is thought of in terms of the Traditional African Stool:-

 A) The What-Substantive . The substantive part of law delineates rights and obligations;
rules. Contained in the Constitution and Statutes. Substantive law deals with rights and
liabilities, imposes and defines the nature and extent of legal duties.

 B) The Why- Theory/Philosophy. The theory of law explains the nature of law; why the
law is; Jurisprudence.

 C) The How- Procedure/Adjective- This is Law governing the machinery of the courts
and the methods by which both the state and the individual (the latter including groups,
whether incorporated or not) enforce their rights in the several courts.

 Procedural law prescribes the means of enforcing rights or providing redress of wrongs
and comprises rules about jurisdiction, pleading and practice, evidence, appeal,
execution of judgments, representation of counsel, costs, and other matters.
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DEFINITION &INTRODUCTION
THE AFRICAN STOOL
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SOURCES OF CIVIL PROCEDURE LAW

 The primary source of Civil Procedure is the Civil Procedure Act, Chapter 21 of the
Laws of Kenya, which constitutes the “corpus” of the law of civil procedure and from
which more detailed Civil Procedure Rules are derived.

 These Rules set out the procedure to be followed at different stages of civil
proceedings, and are to be construed in a manner that advances the Overriding
Objectives of the Act; that is, the resolution of cases in a just, expeditious,
proportionate and affordable manner(Section 1A,1B Civil Procedure Act)

 We also have the High Court Practice Directions to Standardize Practice and
Procedures in the High Court (Issued through Gazette Notice No. 189 of 2022)
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SOURCES OF CIVIL PROCEDURE
LAW

 As a general rule, the Civil Procedure Rules do not apply to Insolvency

Proceedings, Proceedings relating to the Winding up of companies, non-
contentious or Probate Proceedings and matrimonial proceedings.

 The Civil Procedure Rules are applicable to the High Court, Magistrates
Courts, the Small Claims Courts and the Tribunals (except the Kadhis
Court &Court Martial Courts).
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SOURCES OF CIVIL PROCEDURE LAW

 Apart from the Civil Procedure Act, the following Statutes are important in terms of
procedure:

 1. The Appellate Jurisdiction Act and the Court of Appeal Rules,2020; the Court of
Appeal (Election Petition) Rules

 2. The Supreme Court Act(Act No. 7of 2011) and the Supreme Court Rules 2020; the
Supreme Court(General) Practice Directions; the Supreme Court (Presidential
Elections) Rules 2017.

 3. The Environment & Land Court Act and the Practice Directions on Proceedings In
The Environment and Land Courts, and on Proceedings Relating to the Environment
and the Use and Occupation of, and Title to Land and Proceedings in Other
Courts.(Gazette Notice NO. 5178 of 2014)
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SOURCES OF CIVIL PROCEDURE LAW

 4. The Employment & Labour Relation Court Act and the

Employment & Labour Relation Court (Procedure) Rules, 2016

 5. The Judicature Act

 6. The Limitations of Action Act

 7. The Constitution and the Constitution of Kenya(Protection of

Rights and Fundamental Freedoms) Practice and Procedure
Rules, 2013( Mutunga Rules)
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SOURCES OF CIVIL PROCEDURE LAW

EXPECTED LEARNING OUTCOMES

 In these lectures, we will be concerned with adjective law, but the study of
substantive law should precede the study of adjective law and, therefore, it is
advisable to study the various Acts of Parliament containing related substantive
aspects to Civil Procedure.
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SOURCES OF CIVIL PROCEDURE
LAW

EXPECTED LEARNING OUTCOMES

 Cover the course of an ordinary suit is followed, from the moment the plaintiff
determines to sue till the time he obtains a decree

 Elaborate in detail the critical process of execution of a decree and the possible
consequences of an appeal by an affected party

 Employ the explanatory method of treatment, enabling students not only to

understand the provisions of Procedure, but also to see how these provisions are
applied in practice.
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SOURCES OF CIVIL PROCEDURE LAW

 Procedural rules are not mere technicalities and it is a misconception to ignore them
altogether as several other rules of procedure serve the very ends of justice under
the substantive law and some rules are needed for proper resources, time
management and public policy.

 However, procedural law is always subservient to substantive law. The procedure

is handmaiden to the substantive rights of the parties.-Sukhbir Singh v. Brij Pal
Singh, AIR 1996 SC 2510: (1997) 2 SCC 200.
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SOURCES OF CIVIL PROCEDURE LAW

 Civil procedural law is an indispensable instrument for the attainment of justice and it
fulfils many legal and social functions and it assumes complementary character when
it puts into motion and gives life to substantive law.

 It assumes the protective character by representing the orderly, regular and public
functioning of the legal machinery and the operation of the due process of law, and
sustains and safeguards every person in his/her life, liberty, reputation and property,
while it assumes remedial or practical character when it deals with the actual litigation
process itself and enhances the importance and application of rules for the conduct of
the judicial process.
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THE COURTS AND THEIR JURISDICTION

The term jurisdiction draws from two Latin words; Juris- meaning authority of law and diction,
meaning to speak of/about. Jurisdiction therefore means Authority to speak about the Law.

The jurisdiction of Courts is delineated by the Constitution and Statutes- See, Samuel Kamau
Macharia and another v. Kenya Commercial Bank Limited and 2 others. Application No. 2 of
2011

 Jurisdiction means the extent of power of a court to entertain suits and applications. It
signifies the power, authority and competency of the court to adjudicate disputes presented
before it. It refers to the right of administering justice by means of law.

 Before a court can be held to have jurisdiction to decide a particular matter, it must not only
have jurisdiction to try it but must also have the authority to decide the questions at issue
and pass appropriate orders.
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THE COURTS AND THEIR JURISDICTION

 Jurisdiction means the power or authority of a court to inquire into the facts,
to apply the law and to pronounce a judgment and to carry it into execution.

 There are three kinds of jurisdiction of courts: Pecuniary, Territorial and

jurisdiction as to the subject matter. It is also classified into original and
appellate jurisdiction.

 The limits on the jurisdiction of the court are imposed by the Constitution or a
Statute under which the court is constituted. Where no restriction is imposed
on the jurisdiction, it is said to be unlimited.
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THE COURTS AND THEIR JURISDICTION

 Where a court lacks inherent jurisdiction-whether pecuniary or territorial or the

subject matter jurisdiction to try a matter, express consent of the parties, waiver or
acquiescence cannot create it. Conversely, where a court has the jurisdiction,
consent of the parties, waiver, acquiescence or estoppel cannot take it away-See, In
A.B.C. Laminart v. A.P. Agencies, AIR 1989 SC 1239 where the Supreme Court of
India, relying on the maxim ex dolo malo non oritur action, held that by an agreement
which absolutely ousted the jurisdiction of a court having jurisdiction to decide the
matter, would be unlawful and void, being contrary to public policy under section 28
of the Indian Contract Act, 1872."
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THE COURTS AND THEIR JURISDICTION

 What Courts make up the Judicial System in Kenya?

 A) The Supreme Court established under article 163 of the

Constitution.

 B) The Court of Appeal established under article 164 of the

Constitution.

 C) The High Court of Kenya established under article 165 of the

Constitution.
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THE COURTS AND THEIR JURISDICTION

 D) The Specialist/ Article 162 Courts- The Employment & Labour Relations Court and
the Environment & Land Court- See, Republic v Karisa Chengo & 2 others Petition No.
5 of 2015 [2017] eKLR(Supreme Court)

 E) The Magistrates Court and other subordinate Courts (The Kadhi Courts, the Courts
Martial)- See, the Magistrates’ Court Act, the Kadhis’ Court Act & the Kenya Defence
Forces Act

 F) The Small Claims Court- See, the Small Court Claims Act
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THE COURTS AND THEIR
JURISDICTION
 Inherent Powers of the Court

 Halsbury’s Laws of England, 4th Edn. Vol. 37 Para. 14 as follows;

 “The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to
fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction
of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it
is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the
parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to
matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial
discretion; it may be exercised even in circumstances governed by rules of court. The inherent
jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by
preventing the abuse of the process and by compelling the observance of the process … In sum, it may
be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as
being the reserve or fund of powers, a residual source of powers, which the court may draw upon as
necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due
process of law, to prevent improper vexation or oppression, to do justice between the parties and to
secure a fair trial between them.”
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THE COURTS AND THEIR
JURISDICTION

 “This inherent jurisdiction is a residual intrinsic authority which the court may
resort to in order to put right that which would otherwise be an injustice.”( See,
Court of Appeal decision in Kenya Power & Lighting Company Limited v
Benzene Holdings Limited t/a Wyco Paints [2016] eKLR)

 Sections 3A and 3B Appellate Jurisdiction Act; Section 1A and 1B of the Civil

Procedure Act; Article 159(2) d Constitution of Kenya 2010
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