KSL ATP Civil Litigation flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Territorial jurisdiction

Under section 15 of the Civil Procedure Act, a suit is instituted where the defendant resides, carries on business, or where the cause of action wholly or partly arose.

Sub judice

Section 6 CPA bars a court from proceeding with a suit where the same matter is directly and substantially in issue in a previously instituted suit between the same parties.

Res judicata

Section 5 CPA bars a court from trying a suit where the matter has been finally decided by a competent court between the same parties.

Transfer of suits

Section 18 CPA empowers the High Court to transfer any suit to another court of competent jurisdiction; subordinate courts may transfer suits within their level.

Misjoinder of parties

Order 1 rule 9 CPR provides that no suit shall be defeated by reason of misjoinder or non-joinder; the court determines the matter as between the parties before it.

Representative suit

Order 1 rule 8 CPR permits one or more persons to sue on behalf of all persons having the same interest, with leave of court and notice to those represented.

Next friend

Order 32 CPR requires a minor or person of unsound mind to sue through a next friend, and to be sued through a guardian ad litem, with leave of court.

Material facts

Order 2 rule 1 CPR requires every pleading to contain a summary statement of the material facts relied on, but not the evidence by which they are proved.

Striking out pleadings

Order 6 rule 13 CPR allows the court to strike out a pleading that is scandalous, frivolous, vexatious, or otherwise an abuse of the process of the court.

Amendment of pleadings

Order 8 CPR permits the court to allow amendment of pleadings at any stage on such terms as to costs and adjournment as are just, provided no injustice is caused.

Cause of action

A cause of action is the set of facts that, if proved, would entitle the plaintiff to a remedy; it must be disclosed in the plaint for the suit to be sustainable.

Substituted service

Order 5 rule 17 CPR permits the court to order service by advertisement, affixing at court premises, or other mode where the defendant cannot be found.

Affidavit of service

Order 5 CPR requires the serving party to file an affidavit showing the time, manner and place of service and the person served.

Default judgment

Order 10 CPR allows the plaintiff to apply for judgment in default of appearance or defence where the defendant fails to respond to the summons.

Interlocutory injunction

Order 40 CPR and Giella v Cassman Brown require a prima facie case, irreparable injury not compensable by damages, and balance of convenience.

Right to begin

Order 18 rule 1 CPR gives the plaintiff the right to begin the hearing unless the defendant admits the claim and relies on a set-off or counterclaim.

Burden of proof

Section 107 of the Evidence Act places the burden on the person who desires the court to give judgment as to a legal right depending on facts he asserts.

Evidence by affidavit

Order 19 CPR allows the court, at any stage, to order evidence to be given by affidavit, and the deponent may be cross-examined on it.

Contents of judgment

Order 21 rule 4 CPR requires a judgment to contain a concise statement of the case, the points for determination, the decision, and the reasons for it.

Decree defined

Section 2 CPA defines a decree as the formal expression of an adjudication which conclusively determines the rights of the parties, and may be preliminary or final.

Execution limitation period

Order 22 rule 18 CPR requires an application for execution to be made within twelve years from the date of the decree, or from the date of death of a party.

Modes of execution

Order 22 rule 30 CPR lists delivery of possession, attachment and sale of property, arrest and detention, and appointment of a receiver as modes of execution.

Civil jail detention

Section 94 CPA permits the court, in executing a decree, to order detention of a judgment-debtor in civil jail for a period not exceeding six months.

Appeal filing period

Section 79G CPA requires an appeal from a subordinate court to the High Court to be filed within thirty days of the decree or order, extendable on sufficient cause.

Stay of execution

Order 42 rule 6 CPR allows an appellant to apply for stay of execution pending appeal, on such terms as to security and costs as the court deems fit.

Review jurisdiction

Section 80 CPA allows a person aggrieved by a decree or order to apply for review to the court that made it, on grounds of new evidence, mistake or error apparent on the record, or other sufficient reason.

Revisional jurisdiction

Section 81 CPA empowers the High Court to call for and revise the record of a subordinate court where jurisdiction was exercised illegally or with material irregularity.

Stare decisis

The doctrine requires subordinate courts to follow decisions of superior courts; the Court of Appeal is bound by its own decisions save in limited circumstances.

Supreme Court binding effect

Article 163(7) of the Constitution provides that decisions of the Supreme Court are binding on all other courts in Kenya.

Reference to arbitration

Section 60 CPA allows the court, where parties agree to arbitration, to stay proceedings and refer the dispute to arbitration under the Arbitration Act, 1995.

Case management conference

Order 11 CPR requires parties to file a bundle with lists of witnesses and documents and a statement of issues, and the court to consider settlement and fix a timetable.

Advocate's duty to court

An advocate must assist in the administration of justice and must not mislead the court by presenting false evidence or suppressing material facts.