Widgets

THE SOURCES OF CIVIL PROCEDURE

We are concerned with the physical repositories where one can find civil procedure and the sources from where the law of procedure derives its force and validity.  One can list the constitution, statute as the second source and rules of courts and fourth is case law.

From the constitution and its contents it is evident that it is a source of civil procedure.  Article 2 which states the supremacy of the Constitution, it means that whatever law substantive or procedural if it is inconsistent with the Constitution is void to the extent of the inconsistency.

Statute law –we are concerned with the Civil Procedure Act Cap 21.  sometimes it is assumed that anything non-criminal is civil and this is not correct.  The Civil Procedure is basically concerned with cases of a civil nature in the court, their procedure.  We exclude procedures which are stated as specific statute granting specific procedures to be followed, we exclude this from the Civil Procedure.  Winding up of a company has the winding rules and this is therefore excluded from civil procedure.  Matrimonial Causes Act also prescribes procedures for prosecuting under this Act.  Contentious Probate matters are catered for under the Law of Succession Act and therefore excluded.  Where you have an Act of Parliament granting specific jurisdiction and prescribing procedure, then that is the procedure to be followed unless the Act itself states that the Civil Procedure is to be followed.

Chapters 4 dealing with Bill of Rights is of eminence importance as it lays down the protection of fundamental rights and freedoms of the individual.  Article 50(1) provides for a fair hearing.

The Constitution provides for procedure in applications which are founded on the Constitution.

Civil Procedure is a detailed provision of the detailed procedure provided by the Constitution.  Cap 21 is the main piece of legislation that provides procedures.  The Act creates jurisdiction in general terms, it is divided into 11 parts each containing sections which make provisions for particular subjects.  It has marginal notes in respect of some of the Sections.  Section 6 for example has explanatory notes, Section 7 on Res Judicata has marginal notes and Section 16.

Under Civil Procedure Section 2 the rules are properly promulgated by the rules committee.  What happens when there is a conflict of rules.  The rules formulated by Rules committee are meant to regulate procedure to be used in court.  these rules are just rules of procedure and do not affect the rights of parties in a suit and they don’t confer any new rights but only protect rights acquired, the rules do not confer jurisdiction, they do not create any substantive rights, they do not abridge any rights they do not abrogate any rights.

When promulgated by the rules committee they must be consistent with the provisions of the Act.  If there is any inconsistency of the Rules Committee with the main legislation, or where the rules and the Act collide, the Act prevails.  to illustrate this point the cases of Central  District Maize Millers Association v Maciel[1944] 6ULR ]130

In Uganda Section 99 of the Civil Procedure Ordinance is a replica of our section 100, Section 100 reads that the court may at any time and on such terms as to costs or as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.  The court is given power to amend pleadings by Section 100 and that power includes power to make amendments for purposes of determining the real question raised.  In Uganda they had another provision which was Order VII Rule 11 which provided that the Plaint shall be rejected (a) where it does not disclose a course of action – power to reject summarily a plaint which does not disclose a cause of action.

Facts:    in a suit against a payee and first endorser of a promissory note the plaint contended on averment that no notice of dishonour had been given.  In the written statement of defence the defendant alleged that the plaint disclosed no cause of action because it did not contain an averment that notice of dishonour had been given to the defendant.  The trial magistrate amended the plaint by inserting particulars of the notice of dishonour and having heard evidence gave judgment against the defendant.  The Defendant appealed against the judgment and the main ground of appeal was that the Plaint should have been rejected because it did not disclose a course of action and that there was no power to amend.  The question that the High Court had to determine was whether on there being no averment that notice of dishonour of the promissory note was given the Amendment of pleading by the Magistrate was proper or whether the magistrate was bound by Order VII Rule 11.    The Court held that the correct way of looking at the matter would be to say that the plaint did disclose a cause of action but unnecessary averment was omitted which could be cured by amendment under the Act notwithstanding the provisions of Order VII Rule 11 which appeared to be inconsistent with Section 99 of the Act.  The words ‘does not disclose a cause of action’ under Order VII Rule 11 must mean that the plaint must be such that no legitimate amendment can be made to give it a cause of action.   Although the rules may seem to confer the right to amend a pleading to disclose a cause of action, an amendment would be allowed under the general powers provided for under Section 100 to rectify a bona fide mistake in a plaint.  Where there is conflict between the rules and the Act the provisions in the Act will prevail over those in the Rules.

S S Gupta v Inder Singh Bhamra [1965] EA 439

the plaintiff filed a suit against the defendant as a drawer of a dishonoured cheque.  Within 14 days of filing the case the plaintiff filed an amendment in the Plaint without leave and then explained why notice of dishonour was not necessary.  The defence applied to the court to disallow the amendment invoking the provisions of ORDER VII rule 11 while the Plaintiff argued that the amendment was proper and that Order VII rule 11 must not be inconsistent with the Section 99 of Ordinance that allowed him the amendment.  The court said that the rule ought not to conflict with the Civil Procedure Ordinance.

If a rule is inconsistent with the Act it is ultra vires to that extent.  Secondly if the Act confers unfettered power or discretion, a rule which limits the exercise of the power is prima facie inconsistent with the Act and is therefore ultra vires.  Thirdly if a rule is capable of two constructions one consistent with the provisions of the Act and the other inconsistent with the provisions of the Rules then the court should lean to the construction which is consistent with the provisions of the Act.

Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777

Section 80 confers an unfettered right to apply for review and the only fetter is that the court should exercise this discretion judiciary.  Order VLIV had qualifying words, it purports to set out grounds for review.  The ruling was that the wording in that particular Order should be given a liberal construction to avoid inconsistence with the wordings of Section 80, there should be no limitation to Section 80.  invoke Section 80 for review its is safer.

The Act the rules made thereunder are not exhaustive although the intention is that they should apply to all matters of civil nature in court there are other rules prescribed by other statutes which give specific jurisdiction but these other rules should be taken to complement the civil procedure rules.  Where a statute specifically provides that the Act and the Rules shall apply then the Act and the Rules should be applied to those proceedings and the fact that no rules have been made where law grants jurisdiction to the court does not mean that that jurisdiction cannot be exercised.  Section 3 of the Act confers jurisdiction to the Court and explains that where one has specific procedure provided by an Act of Parliament then that procedure ought to prevail, where it provides for the rules under the Civil Procedure, then that should be the case.

The court ought to act on the principle that every procedure is to be taken as permissible unless it has been shown to be prohibited.  One should not proceed on the basis that every procedure is to be taken as prohibited unless it is permitted.  The best illustration is the case of

Mansion House Ltd. v John Wilkinson [1954]1EACA 98
Winding up proceedings by way of Originating Motion.  At that time the OM was unknown to the Kenyan Law especially as enacted in the Civil Procedure Ordinance, the original authority for the existence of an OM was to be found not in the Civil Procedure Rules as applied in Kenya but in the English winding up rules.  The court further held that while the primary civil jurisdiction is exercised under Cap 21 the court shall apply the laws creating special jurisdiction or conferring special power or prescribing any special form of procedure.  This statement was also repeated in the case in Re Parbat Shah [1955]22 EACA 381 and the court held that the jurisdiction of Kenya courts is based first on local jurisdiction and secondly on applied foreign laws including where these are silent the civil and criminal jurisdiction of the High Court in England.  In this case the application for habeas corpus and prerogative writs are made in the English Courts and may be either of civil or criminal in nature and therefore accordingly in Kenya the HC has jurisdiction to entertain such applications on either its civil or criminal side according to the nature of the proceedings.

Inherent powers of the Court
In a case where jurisdiction exists, but no procedure is provided for it is the duty of the judge or the magistrate to mount a convenient form of procedure which would serve the ends of justice.  The court should not refuse to do justice just because there is no procedure provided for.  This is the inherent power of every court, the power said under Section 3A of the Act.  This section does not confer any powers, it indicates there is power to make such orders as may be necessary for the ends of justice to be met and to prevent abuse of court.  This power is conferred in every court.  3A has emerged as an omnibus provision

The word ‘Inherent Power’ has not been defined by any court but an attempt has been made in the following case.
Mistreal Trust Co v Churchill Forest Industries (Manitoba) Ltd [1971] 21 DLR 3rd ed) at P 75 Sir Jack I.H. Jacob attempted to define inherent jurisdiction. “inherent jurisdiction is the reserve or fund of powers, a residue source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observes of the due process to prevent improper vexation or operation, to do justice between the parties and to secure a fair trial between them.”
The nature of inherent jurisdiction is to compare it with other jurisdiction.

Inherent jurisdiction and general jurisdiction
When one talks of general jurisdiction of the court one is concerned with unrestricted and unlimited power of the court in civil and criminal cases except insofar as this power is taken away in unequivocal terms by statues.  When says that the HC has unlimited original jurisdiction in civil and criminal matters, one means that the HC has the full power of a judicial nature in all matters concerning the general administration of justice.  It is therefore not subject to any supervisory control by any other court or organ.  In contrast the inherent jurisdiction of the court is therefore an aspect of its general jurisdiction.

Inherent jurisdiction and statutory jurisdiction
Statutory jurisdiction will define the limits within which the jurisdiction granted is to be exercised in contrast inherent jurisdiction derives from the court in its nature as a court of law hence the limits of such jurisdiction are not easy to define and there has been no reason to define.
Section 3 which states that it is to prevent the abuse of the process of the court – what is the juridical basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction – note that one way the court may want to exercise powers under section 3A are by coercion and giving summary judgment, dismiss action, stay action.

Other sources of law
Rules of the Court – apart from the Civil Procedure Rules there are Rules, Regulations and Directions which the court uses to guide the smooth operations of the court process. In Milimani Commercial Courts for example, there is the direction that rulings are for the afternoons hearings and mentions for the mornings – these are practice directions, to have orderly conduct for the business of the courts.  These practice directions are normally bestowed in the Judicial Officer presiding over that particular court or it could be from the CJ.  The practice in UK is that they report these kind of directions in the Law Reports to be part of the records but here one never gets to know what happens.

Case Law as a source of Procedure
There are statements which can give procedural direction in case law.  there quite a number of cases indicating procedure Tiwi Beach v.  Stamm [1988-92]2kar 189
Giella v Cassman Brown [1973] EA 358
Murage v Mae Properties (2002) klr 3074 – Judgment of Waki J. on Mareeva injunctions

In the case of Tiwi Beach –where on applies an ex parte, there is a requirement for one to disclose all facts that are material to that suit.   An order can be discharged where it has not been disclosed.  Developing rules through case law

Giella v Cassman – requirements for grant of temporary injunctions and set procedure to be followed where parties are intent to obtain temporary injunctions.  Prima facie case with probability of success, client must be likely to suffer irreparable harm that cannot be taken care of by damages,

Murage v Mae – the court was considering the provisions of Order XXXVIII of the then civil procedure rules relating to arrest and attachment before judgment, the judge was concerned with the provisions of Order XXXVIII and the Mareeva Injunction.  Can one really cater for the needs of their clients through an application under Order XXXVIII without applying for a Mareeva Injunction.

 
 
 

Like Us on Facebook

Contact Form

Name

Email *

Message *