TOPIC 3 : COMMENCEMENT OF CIVIL SUITS

PLEADINGS

Topic Objectives:
What do I expect by the end of this topic?
By the end of this topic and reading the relevant readings the student should
be able to:
 Determine the essential components of a pleading
 Explain the various modes for commencement of civil litigation
 Distinguish the various methods of effecting service of summons
effectively
 Demonstrate the ability to draft a plaint as per the provisions in Order 4
 Distinguish the difference in defence, counter-claim and set off
 Demonstrate the ability to draft a response by way of defence, counter-
claim and or set off to plaints.

NATURE AND FUNCTIONS OF PLEADINGS:

Pleadings are written statements by parties to a suit which are served upon
each other. They contain a summary of the Plaintiffs claim or in case of
Defendant It contain statements relating to their defiance.

S. 2 of the Civil Procedure Act states that;

“Pleading includes a petition, a summons, and the statements in writing of

the claim or demand of any plaintiff, and of the defence of any defendant
thereto, and of the reply of the Plaintiff to any defence or counterclaim of
defendant.”

You must be very clear the claim being made before the court. The essence of
it is that no party should be ambushed. Plaintiff knows Defendant's defense
and vice-versa.

Pleadings established the character of the dispute. It also establishes the

issues to be determines by the court.

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Functions of Pleadings:
“The whole object of pleadings is to bring the parties to an issue, and the
meaning of the rules —— was to prevent the issue being enlarged, which would
prevent either party from knowing when the cause came on for trial, what the
real point to be discussed and decided’ was. In fact, the whole meaning of the
system is to narrow the parties to definite issues, and thereby to diminish
expense and delay, especially as regards the amount of testimony required on
either side at the hearing.”

Hanaffi v. Nallamma (1998) Sri LR 73 case, Justice G.P.S. Silva clearly

mentions “Once issues are framed the case which the court has to hear and
determine becomes crystallized in the issues and the pleadings recede to the
background.”

E.M.W. Sooriyartne Siriwardena v. W.W.A. Irene Weerasinghe and

others (C.A.Case No:-280/99(F) decided on 09.12.2015), that, the
purpose to raise issues and admissions in terms of the Civil Procedure Code is
in one respect to identify each party’s case before court. Issues are generally
raised from the pleadings.

Pleadings provide a structure for a proceeding for the purpose of the

attainment of justice. The pleadings identify the material facts upon which the
parties rely and the issues the parties seek to have determined.

1) To uphold the principle that each party must have due and fair notice of the
suit in court I.e. they've reasonable time to prepare for the case.
2) It assists in defining with clarity and precision the Issues and questions
before the court1.
3) It gives each party a fair and proper notice of the opponent's case 2. They
also inform the court about the matter, before it.
4) Pleadings also constitute the permanent record of issues and questions
before the court3.

1
Thorp vs Holdsworth [1876] 3 CD 637 at page 649
2
Palmer v Bradagnini (1906)
3
Heystaced v Communication of taxation 91926)

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5) They assist in avoiding multiply of suits (counter claim) through a counter
claim.
6) They also assist in simplifying and shortenings the hearing of a civil suit.

The Rules of Pleadings4:

In the Act, they are called the Formal Requirements of Pleadings.

Pleadings shall contain only:

a. Pleadings should state facts and not law.

It is the party's duty to state the facts. The court's duty is to apply the law to
the facts pleaded. There's a difference between pleading law and raising a
point of law.

b. Facts stated should be material facts only.

In Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd(1991)
217 ALR 171 French J, said (at 173): “A material fact is one which is necessary to
formulate a complete cause of action. It is to be distinguished from particulars which
are not part of the pleading.”

Material facts must be pleaded with the degree of specificity necessary to define the
issues and inform the parties in advance of the case they have to meet.

But it means those facts upon which plaintiffs cause of action or defendants
defense depends on. All the primary facts which must be proved at the trial
by a party to establish the existence of a cause of action or defense- all facts
that support either party’s case

c. Pleadings should not state evidence5

In order to avoid pleading evidence, one must distinguish the facts from the
evidence

4
Order 2 Civil Procedure Rules 2010
5
Order 2 Rule 3 Civil Procedure Rules 2010

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d. The facts stated should be in concise form

Pleadings should be drafted with sufficient brevity and precision 6.

The statements must be coherent
But it must also not be ambiguous
The date of occurrence of fact must be stated clearly
Certain pleadings cannot be brief
It must be as brief as the case can allow

e. Matters must be specifically pleaded7.

A fact that is presumed by the law need not be pleaded unless the other
party has specifically denied it in his pleadings.
E.g. a valid marriage is presumed by law. Documents and conversation.
You must describe the document sufficiently for it to be identified.

f. There are certain matters that need not be pleaded

g. Documents and conversations should be pleaded to some extent.

h. Pleadings can contain alternative and Inconsistent pleadings.

Alternative means you have a choice between 2 sets of facts. Nothing in the
Act prevents you from pleading alternative facts can also have alternative
defenses. Whenever you plead any of these alternatives or inconsistent, they
must be reconcilable

i. They must be signed and to whom they have being served must
be stated

It must have the signature of plaintiff, defendant or their advocates

Practical application: Read through keenly through the following facts and;
i. Identify material facts
ii. Identify immaterial facts
iii. Identify facts that can be raised as evidence in support of the claim by
the County Government.
6
Order 2 Rule 4 Civil Procedure Rules 2010
7
Order 2 Rule 7 Civil Procedure 2010*

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iv. After the next class, draft a plaint based on the facts given ensuring
that you comply with Provisions of Order 2,3 and Order 4. (This
particular assignment is due after 2 weeks from the 11 th June 2020. It
shall be uploaded on your portals. Further information shall be availed
on the 11th June 2020)

The Legal representative of West Pokot County comes to your chambers.

They have been informed that you are one of the best Civil Practitioner in
town and your law firm come highly recommended. They tell you that they
have a legal brief and want you to take it up immediately.

They inform you that they had advertised a tender and were seeking for the
supply of the West Pokot County with cyber security services as they had
recently upgraded their networking systems.

Antonio Banderas who is a high flying, young and savvy entrepreneur who is
known by his nickname “young old money” among his circles won the said
tender. The County was very impressed by his (Antonio’s) Company’s bid
which was the lowest and also the demonstration of previous experience by
Benderaz Co. Ltd.

The County informs you that as per County policy and in view of what was at
stake, they disbursed 50% of the Contractual sum (Contract dated the 5 th
November 2019) which amount was Kshs. 12,500,000/- which was directly
transferred from the County Government Bank to Benderaz Co. Ltd account
held at Western Bank Limited.

To date, the County has not received any security services despite many
pleas and follow up to have this done. In fact, due to their inability to have
proper security systems in place, they were hacked and Kshs. 200,000,000/-
meant for purchasing a brand-new C.T scanner and (one of it’s first scanners)
for the Kapenguria County Referral Hospital illegally transferred to an
international account which apparently belongs to Samita Komita of Italian
Origin. This matter is currently pending before the Director of Criminal
Investigations and it appears as if the laxity by Benderaz Co. Ltd to offer
security caused this breach.

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The legal representative wants you to commence legal action against
Benderaz Co. Ltd.

Topic 3 ~~Ctd

PLEADINGS; THE PLAINT & DEFENCE

Objectives
 Demonstrate the ability to draft a plaint as per the provisions in Order 4
 Distinguish the difference in defence, counter-claim and set off
 Demonstrate the ability to draft a response by way of defence, counter-
claim and or set off to plaints.

THE PLAINT & DOCUMENTS ACCOMPANYING THE PLAINT

The Plaint must contain the following;

i. The description of the court

ii. The case number
iii. The names of the parties
iv. The description and the place of residence of the plaintiff or his
business address
v. The same description of the defendant
vi. If one of the parties is minor, the plaint must contain a statement to
that effect
vii. The facts constituting the cause of action
viii. Facts showing that the court has jurisdiction
ix. A prayer for reliefs
x. The exact amount sought must be indicated
xi. It must have a date

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 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT WEBUYE
(WEBUYE LAW COURTS)
CIVIL SUIT NO….......…… OF 2020

MARY HARRIS …… ………………………………..…………………PLAINTIFF

VERSUS
LIMPOPO COACHS LIMITED..……………………………………... DEFENDANT

PLAINT
FAST-TRACK

1. The Plaintiff is a Female adult of sound mind residing and working for gain
within the Republic of Kenya and whose address of service for purposes of
this suit is care of M/s WAKILI MKALI ADVOCATES & CO, AKILI NYINGI
HOUSE 3RD FLOOR P.O BOX 3 NAIROBI.

2. The defendants is a limited liability company having incorporated its offices

within the Republic of Kenya (Service of Summons shall be effected through
the Plaintiff’s Advocates Office.)

3. At all material times hereto the Defendant was the Registered owner, user,
possessor, controller and the insured of motor vehicle registration number
KAA 000 which was being driven by the Defendant’s employee servant,
agent and/or authorized driver in the course of the said employment.

4. On or about the 21st day of June 2019, at about 3:00 a.m., the Plaintiff was
lawfully travelling as a fare-paying passenger in motor vehicle registration
number KAA 000 which was heading to Kampala from Nairobi on Wananchi
Area along Eldoret- Webuye-Bungoma road when the Defendant’s
employee, servant, agent and/or authorized driver so carelessly and
negligently drove, managed and/or controlled the said motor vehicle that he
caused the same to loose control veer of the road rolling several times and
in consequence whereof the Plaintiff sustained severe personal injuries. The
Plaintiff contends that the said accident occurred as a result of negligence on

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 the part of the Defendant’s authorized driver in driving, managing and/or
controlling motor vehicle registration number KAA 000.

PARTICULARS OF NEGLIGENCE OF THE DEFENDANT’S SERVANT,

EMPLOYEE, AGENT OR AUTHORIZED DRIVER

a) Driving without due care and attention.

b) Driving at a speed that was excessive in the circumstances.
c) Driving on the wrong side of the road.
d) Creating circumstances that precipitated and caused the accident.
e) Failing to keep and/or maintain any or any proper look-out.
f) Failing to exercise the care and skill reasonably expected of a driver of a
public service motor vehicle in the circumstances.
g) Failing to brake in time or at all.

h) Failing to stop, to slow down, to swerve or in any other way so to manage

and/or control the said motor vehicle and avoid the accident.

i) Failing to have due regard to the safety and well-being of passengers

lawfully traveling in the said motor vehicle and in particular the Plaintiff

j) In so far as is reasonably practicable under the circumstances the

plaintiffs will rely on the doctrine of res ipsa loquitur.

7. By reason of the matters aforesaid the Plaintiff sustained severe personal

injuries and have suffered loss and damage.

PARTICULARS OF INJURIES SUFFERED BY THE PLAINTIFF

a) Complete Fracture of the left radius and ulna.

b) Residual Functional Disability of 10%

PRESENT COMPLAINTS

i) Left forearm is not strong.

ii) Can not lift heavy objects.
iii) Can not do some house hold chores.

PARTICULARS OF SPECIAL DAMAGES FOR THE PLAINTIFF

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 a) Medical Legal Report Kshs. 2,000.00
b) Copy of records of m/v reg. no. KAA 000 Kshs. 500.00
c) Treatment and medical expenses Kshs 55,460.00
Kshs. 57,960.00
FUTURE MEDICAL EXPENSES

a) Two day hospital stay Kshs 5,000.00

b) Hospital charges Kshs 15,000.00
c) Surgeons Fees Kshs 35,000.00
d) Anesthetist fees Kshs 20,000.00
e) Other expenses, medicines, x-ray etc Kshs 15,000.00
Estimated cost of surgery Kshs 90,000.00

AND the Plaintiff claims special damages aforesaid and general damages for
pain, suffering and loss of amenities and cost of future medical expenses
including cost of removal of the Metal implants.

8. The Plaintiff aver that there is no other suit pending and that there have
been no previous proceedings, in any court between the Plaintiff and the
Defendant over the same subject matter and that the cause of action relates
to the plaintiff named in the plaint.

9. Despite demand having been made and notice of intention to sue being
given the Defendant has failed, neglected and/or refused to admit liability
and settle the Plaintiffs’ claim.

10. This Honorable court has jurisdiction to hear and determine this suit.

REASONS WHEREFORE the Plaintiff prays for judgment against the

Defendant for:-
a) Special damages and Future Medical expenses of Kshs 90,000/= as at
2 May 2020.
nd

b) General damages for pain, suffering and loss of amenities.

c) Costs of the suit.
d) Interest on (a), (b), and (c) above at court rates.
e) Any other or further relief that this Honourable Court may deem just to
grant.

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DATED at NAIROBI this day of 2020

WAKILI MKALI & COMPANY

(ADVOCATES FOR THE PLAINTIFF)

DRAWN & FILED BY:-

WAKILI MKALI ADVOCATES & CO,
AKILI NYINGI HOUSE 3RD FLOOR
P.O BOX 3 NAIROBI
NAIROBI. (OUR REF: AWA/RD/01/12)

TO BE SERVED UPON:
LIMPOPO COACH
P.O BOX 4252
ELDORET

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 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT WEBUYE
(WEBUYE LAW COURTS)
CIVIL SUIT NO….......…… OF 2020

MARY HARRIS …… ……………………………..…………………….…PLAINTIFF

VERSUS
LIMPOPO COACHS LIMITED..……………………………………... DEFENDANT

VERIFYING AFFIDAVIT
I, MARY HARRIS of Post Office Box 58332 Nairobi within the Republic of
Kenya do hereby make oath and state as follows:-

1. THAT I am the plaintiff herein and the cause of action contained in the
Plaint relates to me and hence competent to make this affidavit.

2. THAT there is no other suit pending, and there have been no previous
proceedings, in any court between myself and the defendant over the same
subject matter and the cause of action relates to me and I hereby verify the
averment in Paragraph 7 of the Plaint as correct.

3. THAT the facts set out in the Plaint annexed hereto are correct.

4. THAT what is deponed herein is true to the best of my knowledge.

SWORN at Nairobi by the above

MARY HARRIS ]----------------------------
this day of 2020] DEPONENT
BEFORE ME: ]
]
]
]
]
A COMMISSIONER FOR OATHS ]
DRAWN & FILED BY:-
WAKILI MKALI ADVOCATES & CO,

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 AKILI NYINGI HOUSE 3RD FLOOR
P.O BOX 3 NAIROBI
NAIROBI.
REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT WEBUYE
(WEBUYE LAW COURTS)
CIVIL SUIT NO….......…… OF 2029

MARY HARRIS …… ……………………………..…………………PLAINTIFF

VERSUS
LIMPOPO COACHS LIMITED..……………………………………... DEFENDANT

PLAINTIFF’S LIST OF WITNESSES

(Under Order 3 Rule 2 of The Civil Procedure Rules, 2010)

The Plaintiff shall at the trial call the following witnesses in support of his
case:

1. MARY HARRIS (the plaintiff herein)

2. Webuye Hospital Superintendant or such other medical officer/employee as

may be deputed by him/her to attend on court.
3. Base Commander of Webuye Police Station or such other officer as may be
designated and authorized in that behalf to attend court and testify.

4. Dr. W.M. SHARP

5. Such other witness as may become available to the plaintiff on or before

trial.

DATED at NAIROBI this day of 2020

WAKILI MKALI & COMPANY

(ADVOCATES FOR THE PLAINTIFF)

DRAWN & FILED BY:-

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 WAKILI MKALI ADVOCATES & CO,
AKILI NYINGI HOUSE 3RD FLOOR
P.O BOX 3 NAIROBI
NAIROBI. (OUR REF: AWA/RD/05/11)

REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT WEBUYE
(WEBUYE LAW COURTS)
CIVIL SUIT NO….......…… OF 2020

MARY HARRIS …… ……………………………..…………………PLAINTIFF

VERSUS
LIMPOPO COACHS LIMITED..……………………………... DEFENDANT

PLAINTIFF’S LIST OF DOCUMENTS

(Under Order 3 Rule 2 of The Civil Procedure Rules, 2010)

The plaintiff shall at the trial rely on, inter alia, the following documents and
copies whereof are annexed hereto:
1. Demand letter.

2. Certificate of Postage of demand letter.

3. Medical examination report (P3 Form) filled at Webuye District Hospital.

4. Discharge summary Webuye District Hospital.

5. Case Summary Mt. Kenya Hospital.

6. Police Abstract

7. Medical legal report

8. Receipt of payment of the medical report.

9. Receipts for treatment expenses.

10. Copy of records of motor vehicle registration number KAA 000.

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11. Cash deposit slip of Kshs.500/= for payment of the search of the said
motor vehicle.

12. Generic payment advice issued by Kenya Revenue Authority for the
said search.

13. Such other relevant document as may come into plaintiff’s possession
on or before the trial.

DATED at NAIROBI this day of 2020

WAKILI MKALI & COMPANY

(ADVOCATES FOR THE PLAINTIFF)

DRAWN & FILED BY:-

WAKILI MKALI ADVOCATES & CO,
AKILI NYINGI HOUSE 3RD FLOOR
P.O BOX 3 NAIROBI
NAIROBI

TO BE SERVED UPON:
LIMPOPO COACH
P.O BOX 4252
ELDORET

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 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT WEBUYE
(WEBUYE LAW COURTS)
CIVIL SUIT NO….......…… OF 2020

MARY HARRIS …… ……………………………….…………………PLAINTIFF

VERSUS
LIMPOPO COACHS LIMITED..……………………………..………...
DEFENDANT

PLAINTIFF’S STATEMENT

NAME MARY HARRIS

ADDRESS C/O 58332 NAIROBI
PHYSICAL ADDRESS THIKA
MARITAL STATUS SINGLE

STATE AS FOLLOWS
I am a Female adult of sound mind and the Plaintiff in this case. I live in Thika
where I also study at the Kenya Institute of Management.

On the 21st June 2019 I was on my travelling to Kampala to go and pick

some documents. That I had boarded the vehicle belonging to Kampala
Coach limited. The vehicle was registration Number KAA 000 at their stage
down at river road. We travelled well until when we reached at the Eldoret
Webuye Bungoma road, the driver started sleeping and as a result, the
vehicle veered of the road and rolled several times.
That I could see clearly that he was sleeping while driving because he had on
two occasions’ prior to the accident hit other vehicles on the road.

Good Samaritans came to rescue us. I was taken to Webuye District Hospital
where I was admitted for 6 days and discharged on the 27 th of June 2019to
go for further treatment in a Hospital which was near my home.

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I went to my parents in Nyeri where they took me to Mt. Kenya Hospital
where I was admitted on 4th July 2011 and discharged on 8th July 2011. The
metal plates where inserted while I was in this facility. I was told to go for
review on 13th July 2019 at Dr. Sharp clinic on 13th July 2019.

I attended clinic on that particular day and also on several other occasions.

I blame the driver for the accident because if he had been exercising due
care and attention, the accident would not have occurred. The accident has
adversely affected me as I can not carry heavy objects and do house hold
chores. I will also need money for the removal of the metal plant which I do
not have. My hand still aches to date.

That is all I wish to state.

-------------------------------------

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