KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
4. Pre-Trial Proceedings 4.1 Interim Applications/Motions
a request for the further transmission of said copy through diplomatic channels to the government of the country in which leave to serve the summons has been granted. 3.6 Failure to Respond In such instances of failure to respond, the plaintiff may file a request for a judgment in default of appear- ance against the defendant. For the court to enter a judgment in default, the plaintiff must satisfy the court that the defendant was properly served and failed to enter appearance. If the claim is liquidated, the court will check the return of service and enter a final judg- ment. Where the claim is unliquidated, the court shall set the matter down for hearing where the plaintiff is required to adduce evidence to help the court reach an appro- priate amount for compensation. 3.7 Representative or Collective Actions According to Order 1 Rule 8 of the Civil Procedure Rules, where there are numerous persons who have a similar interest in any proceedings against the same defendant, the proceedings may be commenced by or against any one of them as representing all of them. For one to file a representative suit, one must demon- strate a common interest. Participation in representa- tive suits is on an opt-in basis, in that any person on whose behalf the representative suit is instituted is allowed to apply to the court to be made a party. 3.8 Requirements for Cost Estimate There is no mandatory requirement in Kenya for advocates to provide clients with a cost estimate for a potential litigation. Costs associated with litigation include legal costs or damages awarded to the win- ning party at the end of the litigation. Such costs are difficult to estimate from the onset as they are discretionary and differ on a case-by-case basis as may be awarded by the court. Nonetheless, an estimate can be given for the filing fees and the legal fees chargeable by the lawyer representing the party.
Interim applications allow courts to control proceed- ings, preserve the subject matter of disputes and pre- vent injustice before trial. The most common interim reliefs are injunctions, stays of proceedings, orders for preservation of property, freezing orders (Mareva injunctions) and orders com- pelling disclosure of documents. The guiding princi- ples for interlocutory injunctions are as follows: • demonstration of a prima facie case with a prob- ability of success; • proof of irreparable harm not compensable in dam- ages; and • balance of convenience favouring the applicant. Such remedies ensure that constitutional rights are protected pending full hearings. The practical effect is that interim applications are not mere procedural tools but substantive instruments of justice, often shaping the trajectory of litigation. 4.2 Early Judgment Applications A party can apply for summary judgment in claims for liquidated sums, recoveries of land and enforceable contracts. In such cases, the applicant must demon- strate that the defendant has no defence worth going to trial. A second mechanism is striking out of pleadings where they are scandalous, frivolous, vexatious, may prejudice or delay the fair trial of the action, or are otherwise an abuse of court process. The third tool is the preliminary objection, which must raise a pure point of law, such as jurisdiction or limita- tion of actions, and does not depend on the ascertain- ment of facts. If successful, it can dispose of an entire case at the threshold stage. A fourth mechanism is judgment in default of appear- ance, where a defendant, after being served with sum- mons, fails to enter appearance within the stipulated time, the plaintiff may apply for judgment in default.
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