KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
7.2 Case Management Hearings Shorter hearings such as those concerning interim motions or interlocutory applications are generally conducted through written submissions supported by affidavits and annexures, though parties may be allowed brief oral highlights if the court deems it nec- essary. The court then issues a ruling, which may be delivered orally or in writing. Before complex or substantive trials, the court con- venes case management conferences, whose pur- pose is to streamline proceedings, narrow issues in dispute, and ensure readiness for trial. The court: • confirms filing and exchange of pleadings, witness statements, expert reports; • addresses pending interlocutory matters; and • sets timelines for the hearing. Once the court is satisfied that all pre-trial steps are complete, it certifies the matter as ready for hearing and allocates trial dates. 7.3 Jury Trials in Civil Cases Jury trials are not available in civil or criminal cases in Kenya. The Kenyan legal system, inherited from the English common law tradition, requires that all dis- putes are tried and determined by a judge or magis- trate sitting alone who serves as both the arbiter of fact and law. 7.4 Rules That Govern Admission of Evidence The general principle is that evidence must be rel- evant to be admissible. The courts only admit facts that make the existence or non-existence of a material fact in issue more or less probable. Sections 62 and 63 of the CPC, Cap. 75 of the laws of Kenya, distinguish between oral and documentary evidence, with oral evidence required to be direct, and documents required to be proved by primary evidence – ie, the original document – except where secondary evidence is permitted under Section 68. The best evidence rule applies, meaning the original document must be produced unless a valid exception exists. Evidence obtained unlawfully may be excluded if its admission would render the trial unfair, reflecting
third party is knowingly or actively implicated in the conduct being restrained. 6.7 Consequences of a Respondent’s Non- Compliance Failure to comply with the terms of an injunction constitutes contempt of court under Section 5 of the Judicature Act and the Civil Procedure framework. The court typically requires proof that the respondent knowingly or intentionally disobeyed the injunction; accidental or inadvertent breaches are treated differ- ently. For ex parte injunctions, the respondent may initially be unaware of the order, but once served, they are legally bound to comply. Courts may issue committal orders, coercive fines, or other measures to compel compliance. Civil trials are adversarial and primarily oral, though preceded by extensive written pleadings. Once plead- ings close, the court conducts a pre-trial conference under Order 11 of the Civil Procedure Rules to manage disclosure, witness statements, and expert reports. At trial, witnesses adopt their filed statements as evi- dence-in-chief and are examined, cross-examined, and re-examined. Criminal trials, governed by the Criminal Procedure Code and Article 50 of the Constitution, are conduct- ed entirely orally in open court. The process begins with the reading of the charge and plea, followed by the prosecution’s case, during which witnesses are examined and cross-examined. 7. Trials and Hearings 7.1 Trial Proceedings After both sides close their cases, parties may make brief oral or written submissions. The court then deliv- ers a reasoned judgment in compliance with Section 169 of the Criminal Procedure Code (CPC), stating its findings and reasons.
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