PLEADINGS WITHOUT TEARS1 The Civil Procedure Act is the lawyers bible in civil litigation.

It is every practitioners nightmare to be confronted by a technical objection to the pleadings filed in court because of some procedural defect. This paper will attempt to highlight some of the problematic areas that are encountered on a frequent basis. It is intended that that paper will lead to the reduction of some of the common legal minefields encountered in every day practice. The paper is by no means meant to be e haustive but will merely scratch at the surface of some of the common problems that may be encountered. The practice of laws is ever evolving and one must !eep abreast with the latest developments by constant reading and discussing topical problems with colleagues. The paper will also point out some of the hidden gems in the Civil Procedure "ules that tend to be overloo!ed. The journey to untangle the myriad of technicalities that are normally encountered now begins. 1. AMENDMENT OF PLEADINGS #rder $A "ule % &'( provides as follows) Every pleading and other document amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment is made. *ow what does this mean+ ,any a practitioner will amend a pleading as follows)
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The writer is the convenor of the -itigation Committee of the -aw .ociety of /enya. 0e is also a partner in the litigation department of 1al!er /ontos Advocates and a member of the Chartered Institute of Arbitrators &/enya( Chapter. 0e is also a member of the wor!ing committee of the ,ilimani Commercial Courts. 0e has in the past headed the ad hoc subcommittee of the litigation committee that redrafted the amendments to the Advocates "emuneration #rder 233$ that was presented to his lordship the Chief 4ustice by the council of the law society. 0e was also head of the subcommittee of the Chartered Institute of Arbitrators &/enya( Chapter that drafted /enyas first Court ,andated ,ediation "ules that are presently with the "ules Committee for adoption and implementation..

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AMENDED PLAINT #nce that is done we normally sit bac! complacently waiting to ta!e the ne t step in the proceedings only to have a tic!ing time bomb delivered vide an application to stri!e out the entire amended suit on the ground that the amendment was fatally defective and un5procedural. 6our opponent says that you should have amended as follows and yet you did not) AMENDED PLAINT (Pursuant to Order 6 !ule " of the #ivil Procedure !ules$ or (Pursuant to the Order of the #ourt of "%th &uly '((6$ The above is the correct form to amend the pleading. -et this not come as a shoc! to many when it is revealed that many a practitioner has come to grief when the entire pleading has suffered a high pleading mortality rate when struc! out on this innocuous technicality. Interestingly enough the high court cases are legion on this point and the majority point out that failure to comply with the rule is fatal. 2 1e are yet to come across a court of appeal decision on this point. In Stockman Rozen Kenya Ltd v Da Gama Rose G o!" o# $om"an%es Ltd &2332( ' /-" 7%2 at page 7%$8 the court held that) &'e (ave a)) a* eed t(at t(e ")a%nt%## amended t(e ")a%nt +e#o e t(e c)ose o# ")ead%n*s as " ov%ded #o +y O de ,A -1. o# t(e $%v%) P oced! e R!)es. T(e amendment /as done at Na% o+% on t(e 01.2.0331. T(%s /as not done "! s!ant to t(e co! t4s o de a))o/%n* t(e amendment. So t(e ")a%nt%## d%d not (ave to endo se t(e date o# s!c( an o de 5

.ee the following cases which all struc! out the amended pleadings) Alice 1anjiru *jihia v 4ohn "u!ungu 9 Ano.0CCC *o.':;7<==8 Pan African >an! -td &In -iquidation( v Abraham /ipsang /iptanui 0CCC *o. '3$<=%81ilfred ?ic!son /atibi v >arclays >an! of /enya 9 2 #thers ,ilimani 0CCC *o. 27=<378 @iro Commercial >an! -imited v .am *yamweya ,ilimani 0CCC *o. ';='<338 Classic ,ushrooms -td v The Aastern 9 .outhern Africa Trade 9 development >an! ,ilimani 0CCC *o. 7;%<3;8

6!t t(e ")a%nt%## /as en7o%ned to endo se on t(e amended ")a%nt t(e n!m+e o# t(e !)e %n "! s!ance o# /(%c( t(e amendment /as made. T(e endo sement %s mandato y. T(e /o d !sed %s &s(a))8. T(at means #a%)! e to com")y (as #ata) e##ects.8 0. E9TENSION OF T:E ;ALIDIT< OF S=MMONS> T:E PRIN$IPALS IN T:E E9ER$ISE OF ?=DI$IAL DIS$RETION. #ne of the numerous applications that are filed on a routine basis deals with the e tension of the validity of e pired summons. ?espite the fact the application is made ex parte many advocates leave the courtroom crestfallen when their applications are dismissed with costs. This seemingly innocuous application has caused untold grief to many applicants especially when) '. Bresh suit has to be filed at great e pense. 2. A fresh suit cannot be filed because the claim has become time barred. The amendment of #rder C "ule ' &2( of the Civil Procedure "ules by -egal *otice *o. 7 of '==$ has opened a pandoras bo in the aspect of judicial interpretation. The courts have given conflicting judicial interpretation to applications that have sought to e tend summons that to all intents and purposed have e pired. T:E PRE>122, PERIOD 6EFORE T:E AMENDMENT #rder C "ule ' provides a comprehensive code that deals with the duration and the procedural aspects involved in the duration and renewal of summons. Previously the law was as follows when it came to the aspect of the e tension of the validity summons. #rder C "ule ' provided as follows) 1. -1. A s!mmons -ot(e t(an a conc! ent s!mmons. s(a)) +e va)%d %n t(e #% st %nstance #o t(e t/e)ve mont(s +e*%nn%n* /%t( t(e date o# %ts %ss!e and a conc! ent s!mmons s(a)) +e va)%d %n t(e #% st %nstance o# t(e "e %od o# va)%d%ty

o# t(e o %*%na) s!mmons /(%c( %s !ne@"% ed at t(e date o# %ss!e o# t(e conc! ent s!mmons. 0. '(e e a s!mmons (as not +een se ved on a de#endantA t(e co! t may +y o de e@tend t(e va)%d%ty o# t(e s!mmons # om t%me to t%me #o s!c( "e %od not e@ceed%n* %n a)) t/enty B #o! mont(s # om t(e date o# %ts %ss!e %# %t %s sat%s#%ed t(at %t %s 7!st to do so . 1. '(e e t(e va)%d%ty o# t(e s!mmons (as +een e@tended !nde s!+ !)e -0. +e#o e %t may +e se ved %t s(a)) +e ma ked /%t( an o##%c%a) stam" s(o/%n* t(e "e %od #o /(%c( %ts va)%d%ty (as +een e@tended. C. '(e e t(e va)%d%ty o# a s!mmons %s e@tendedA t(e o de s(a)) o"e ate %n e)at%on to any ot(e s!mmons -/(et(e o %*%na) o conc! ent. %ss!ed %n t(e same s!m /(%c( (as not +een se ved so as to e@tend %ts va)%d%ty !nt%) t(e "e %od s"ec%#%ed %n t(e o de . D. A"")%cat%on #o an o de !nde s!+ !)e -0. s(a)) +e made +y t(e #%)%n* an a##%dav%t sett%n* o!t t(e attem"ts made at se v%ce and t(e% es!)tA and t(e o de may +e made /%t(o!t t(e advocate o ")a%nt%## %n "e son +e%n* (ea d. ,. As many attem"ts to se ve t(e s!mmons as a e necessa y may +e made d! %n* t(e "e %od o# t(e va)%d%ty o# s!mmons. E. '(e e no a"")%cat%on (as +een made !nde s!+ !)e -0. t(e co! t may /%t(o!t not%ce d%sm%ss t(e s!%t at t(e e@"% y o# t/enty>#o! mont(s # om t(e %ss!e o# t(e o %*%na) s!mmons. The case that has dealt with the interpretation of the above section prior to the amendment is Na% o+% $%v%) A""ea) No. FD o# 122, =dayk!ma $. Ra7an% and 1 Ot(e s v $(a )es T(a%t(% -!n e"o ted.. BACT.) The summons were issued by the superior court on 2nd April '=:%. After the superior court was dissatisfied with the mode of service8 the summons were reissued on 2%th ,arch '==2. *o formal application for the e tension of the validity of summons had been made. The reissued summons were served and an appearance was filed on =th .eptember '==2.

A preliminary objection was raised to the effect that there being no valid e tension of the first summons the suit ought to be dismissed. The superior court dismissed the preliminary objection. The Court of Appeal was as!ed to address the issue whether before the enactment of -egal *otice *o. 7 of '==$ the court had the power under #rder 7 "ule ' to e tend the validity of summons beyond 2D months from the date of its issue. 0A-?) '. #rder 7 "ule ' provides a comprehensive code for the duration and renewal of summons and therefore the non5compliance with the procedural aspect caused by the failure to renew the summons under this "ule is such a fundamental defect in the proceedings that the inherent powers of the court under section ;A of the Civil Procedure Act cannot cure. 2. The court 8 before '==$ 8 could only by order e tend its validity from time to time for such period not e ceeding 2D months from the date of its issue if it was satisfied that it was just to do so . ;. .ince no application had been made to e tend the validity of the original summons8 the court had no power to e tend the validity of summons beyond 2D months8 when in fact there was no valid summons in e istence. It follows therefore that the alleged service upon the defendants was ineffective and invalid and so were the summons issued on 2:th August '==2. The Court of Appeal allowed the appeal and dismissed the suit. T(e Post 122,> A#te t(e Amendment -egal *otice *o. 7 of '==$ deleted #rder 7 "ule ' &2( by introducing the following amendment) &'(e e a s!mmons (ave not +een se ved on a de#endant t(e co! t may e@tend t(e va)%d%ty o# t(e s!mmons # om t%me to t%me %# sat%s#%ed %t %s 7!st to do so.8 -s%c..

A subsequent amendment was introduced by -egal *otice *o.:D of '==$ to rectify the clerical error by substituting the word Ehave E with the word E hasF. The amendment on the face of it was deemed to herald a new dawn of gracious judicial discretion towards the e tension of the validity of summons. >ut alas the euphoria was short lived as many advocates discovered to their consternation that their applications for the e tension of the validity of summons were dismissed with costs. "egrettably there are hardly any local cases that has brought succor to the advocates whose applications for the e tension of e pired summons have been dismissed. If the cases are there then they have not been brought to the attention of majority of the legal fraternity. The ne t local case that dealt with a suit that was filed after the '==$ amendment is ?a% o A. Okonda v Kenya $omme c%a) 6ank M%)%man% :$$$ NO. 13F2 o# 122, -!n e"o ted.. FA$TS The suit was filed on '7th 4une '===. The Plaint and Chamber .ummons were served on the ?efendant. The summons though issued by the court on D th Bebruary '==% had not been served on the ?efendant as a result of the mista!e of the Plaintiffs previous advocate who failed to serve the same for undisclosed reasons. Consequently the summons e pired on ;rd Bebruary '==: .The ?efendants advocate raised a preliminary objection to the effect that the suit had abated and no orders could be made. :ELD '. An application to e tend the validity of summons has to be made within the first '2 months. If the period e pired and the summons validity e pired then there was nothing to e tend. The judge accepted the Court of Appeals decision in the case of Ra7an% v T(a%t(% cited above.

This is the position that has been ta!en by some members of the bench when dismissing applications that see! to have e pired summons e tended. 0owever as we shall demonstrate below8 the superior court in the above case had not considered the fact that the court has the discretion to enlarge the time for the filing of an application see!ing the e tension of the validity of summons outside the '2 month period. ENLARGEMENT OF TIME #rder D= "ule 7 of the Civil Procedure "ules provides ) & '(e e a )%m%ted t%me (as +een #%@ed #o do%n* any act o tak%n* any " oceed%n*s !nde t(ese R!)esA o +y s!mma y not%ce o +y o de o# t(e co! tA t(e co! t s(a)) (ave "o/e to en)a *e s!c( t%me !"on s!c( te ms -%# any. as t(e 7!st%ce o# t(e case may eG!% eA and s!c( en)a *ement may +e o de ed a)t(o!*( t(e a"")%cat%on #o t(e same %s not made !nt%) t(e e@"% at%on o# t(e t%me a""o%nted o a))o/ed H P ov%ded t(at t(e costs o# any a"")%cat%on to e@tend s!c( t%me and any o de made t(e eon s(a)) +e +o ne +y t(e "a t%es mak%n* s!c( a"")%cat%onA !n)ess t(e co! t o de s ot(e /%se.8 The court therefore has discretionary jurisdiction to enlarge the time for the filing of an application see!ing the e tension of the validity of e pired summons. It must be pointed out that the jurisdiction to enlarge time can only be made under #rder D= "ule 7 and not .. =7 of the Civil Procedure "ules. .. =7 reads) &'(e e any "e %od %s #%@ed o * anted +y t(e co! t #o t(e do%n* o# any act " esc %+ed o a))o/ed +y t(%s ActA t(e co! t mayA %n %ts d%sc et%onA # om t%me to t%me en)a *e s!c( "e %odA even t(o!*( t(e "e %od o %*%na))y #%@ed o * anted may (ave e@"% ed.8 This distinction has been pointed out in the case of Pate) v S%n*( I Ano. -12D,. EA$A 032. The Court of Appeal at *airobi in deciding an appeal from the .upreme Court of /enya8 allowed an application that sought to e tend the time for the filing of an application see!ing

to set aside an arbitral award. The Court held that #rder 7 "ule 7 of the Civil Procedure "ules applied. It however rejected the submission that the court also had jurisdiction to e tend the time under ..=7 of the Civil Procedure #rdinance &identical to .. =7 of our Civil Procedure Act(. The Court held as follows) &'e do not t(%nk t(at t(%s sect%on can (ave any a"")%cat%on to a case s!c( as t(e " esent one. T(e e@" ess%on &#%@ed o * anted +y t(e co! t &%sA %n o! v%e/A #ata) to any s!+m%ss%on to t(e cont a y. &$o! t &%s de#%ned %n sect%on 0 o# t(e O d%nance as mean%n* & any c%v%) $o! t ot(e t(an M!s)%m S!+o d%nate $o! ts8. T(at de#%n%t%on seems c)ea )y to env%sa*e a $o! t s%tt%n* %n %ts 7!d%c%a) ca"ac%ty and co!)d notA /e t(%nkA %nc)!de t(e S!" eme $o! t o# Kenya as a !)e> mak%n* a!t(o %ty em"o/e ed +y sect%on 03 o# t(e A +%t at%on O d%nance.8 In case of :o)man v Geo *e E))%ot I $o. Ltd -12CC. 1K6 D21 the Plaintiff had failed to serve the writ within '2 months and the writ was rendered void. 0e filed an application see!ing the e tension of the validity of the writ. The ?efendants advocate argued that as there was no application to e tend the writ within '2 months then the writ was rendered void. They however conceded that the writ could be e tended after the '2 months by see!ing leave to enlarge time but that such renewal would not be granted if the claim would become statute barred if the renewal was granted. The Court held that there was no rule depriving a judge of his discretion to e tend the time for non5compliance of a procedural requirement and the court has the discretion to e tend the time. The Court however cautioned that there was an accepted practice as laid down in Doy)e v Ka!#man -1FEE. 1 J.6.D E not E to e tend the time for renewing a writ of summons when the claim would8 in the absence of such renewal8 be barred by the .tatute of -imitations.F G o!nds #o t(e e@e c%se o# ?!d%c%a) D%sc et%on %n E@tend%n* t(e ;a)%d%ty o# S!mmons

The .upreme Court Practice '=== Adition Col. ' has at pages 7D to 7$ provided various considerations that the court loo!s at when considering applications for the e tension of the validity of summons. The overriding principle is that the e tension of the validity of summons is not to be granted as of course on an application8 which is necessarily made ex parte. The courts require that good cause or sufficient reason must be demonstrated. 1e shall borrow heavily from the cited pages to illustrate a few instances of what the court considers in applications for the e tension of the validity of summons. Good Reasons #o E@tens%ons a( A clear agreement with the defendant that service of the writ be deferred. b( Impossibility or great difficulty in finding or serving the defendant8 more particularly if he is evading service. 6ad Reasons #o E@tens%ons a( That negotiations are proceeding. In the absence of an actual agreement that service be deferred8 it is both incorrect and dangerous to defer service in the hope that negotiations will succeed8 too often a writ is forgotten until after the limitation period has elapsedG offers may be withdrawn and the plaintiff left without remedy save against his solicitors. b( That there is difficulty in tracing witnesses or obtaining e pert or other evidence. c( Carelessness. .ummons will not normally be renewed so as to deprive the ?efendant of the accrued benefit of a limitation period. &see page 77 which also has e ceptions which are the same as the two grounds cited in E good reasons for e tensions Hcited above(. 1here application for renewal is made after the summons have e pired and after the e piry of a relevant period of limitation the applicant must not only show good reason for the renewal8 but must give a satisfactory e planation for his failure to apply for the renewal before the validity of the summons has e pired. Brom the foregoing it is clear that the court has discretion to entertain an application brought under #rder D= "ule 7 that see!s to enlarge the time to ma!e an application brought under

#rder 7 "ule ' &2(. In all instances the court then has to consider whether there has been a reasonable e planation for the delay and the hardship that may be brought to both sides. S=6STIT=TED SER;I$E Instead of going through the grief of having to e tend the summons8 one should consider the option of simply applying for substituted service under #rder 7 "ule '% &;( of the Civil Procedure "ules. Cery few advocates have discovered that this method need not be e pensive. The reason why most advertisements in the newspapers are e pensive is because we set out the full title of the court case which is about half the cost of the advertisement. This method would be useful if you want the advert to loudly proclaim to the whole world about the e istence of the suit and your client is prepared to foot the bill. #n the other hand the cheaper method8 which in reality costs under /shs. '38333.338 is to simply place the advertisement in the classified advertisement section of the daily newspaper and adopt the following format) No. 01 S=6STIT=DED SER;I$E 6< AD;ERTISEMENT -O.; 1EA0,. ToH A t! Ma *a %ne O# P.O.6o@ 101 33E33 Na% o+% Take not%ce t(at a ")a%nt (as +een #%)ed %n t(e $(%e# Ma*%st ates at Na% o+% %n $%v%) S!%t No.10101 o# 033, %n /(%c( yo! a e named as t(e de#endant. Se v%ce o# s!mmons on yo! (ad +een o de ed +y means o# t(%s adve t%sement. A co"y o# t(e s!mmons and t(e ")a%nt may +e o+ta%ned # om t(e co! t at P.O.6o@ CCF13 33133 Na% o+%. And #! t(e take not%ce t(atA !n)ess yo! ente an a""ea ance /%t(%n 01 daysA t(e case /%)) +e (ea d %n yo! a+sence. Kama! Onyan*o Advocates. The rules actually ma!e it so simple for us to adopt the format for advertisement in the local dailiesI .o the ne t time you have an elusive defendant do not grief when the solution is staring in your face. As a matter of practice8 the minute the defendant cannot be traced8 simply apply for substituted service and

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then obtain your default judgment. 6ou can then have the lu ury of time to trace him and if he has immoveable assets the same can be attached and sold. After all8 you have had the blessings of the court through every stage and no one can fault you for thatI 1. PRELIMINAR< O6?E$TIONS A favourite tool tactically employed when the aim is to derail the hearing of the suit leading to escalation of costs. A preliminary objection consists of a point of law which has been pleaded8 or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit. A amples are an objection to the jurisdiction of the court8 or a plea of limitation8 or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.; A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law8 which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the e ercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and8 on occasion8 confuse the issues. This improper practice should stop.D >e warned5if your preliminary objection is dismissed and the judge condemns you to pay getting up fees and the witness e penses if the hearing had been frustrated by your preliminary objection. Careful thought must be given when raising vague preliminary objections whose intent is shrouded in mystery that cannot be discerned from the pleadings. It is insufficient to say that you will raise a point of law when that point is not apparent from the body of the pleadings or set out precisely in the preliminary objection.7 Avoid raising a preliminary objection which is not part of the pleadings. C. T:E LA'<ER4S ETERNAL SA;ING GRA$E> SE$TION 1 A
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,u!isa >iscuits Co v 1est And ?istributors -td &'=$=( $=% per -aw 4 at page %33 para ?5 Per .ir Charles *ewbold8 P at page %3' para. > in ,u!isa supra. 7 Per "ingera 4 in Agricultural Binance Corporation 9 Ano. v /enya Alliance Insurance Company -td 9 Ano. &2332( ' /-" 2;' at 2;2.

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The general rule is that the inherent powers of the court should not be invo!ed if there is specific rule dealing with the issue at hand. There are however instances when the courts inherent jurisdiction will be invo!ed. The following are summaries of when the inherent powers are invo!ed to aid the litigant. $ The summaries are not e haustive. To stay proceedings where the ends of justice so required or to prevent an abuse of the process of the courtG but where the circumstances of the particular case do not call for such e ercise8 the court will not e ercise this power.% To stay e ecution. The court had inherent power8 ex debito justitiae8 to order a stay of e ecution pending the determination of an application for leave to appeal out of time and subsequent determination of the appeal. : The writer has used this effectively when a record of appeal was struc! out. Another instance is when the stay of e ecution had e pired while the application for stay in the court of appeal had been listed for hearing outside the e pired stay period. 1here a judgment is not regularly obtained the power to set it aside may stem from the courts inherent jurisdiction. A mandatory injunction can only be brought under .. ;A and not #rder ;=.= The inherent powers will be used when lifting the corporate veil at the e ecution stage.'3

D. AN ALLEGATION OF FA$T =NLESS TRA;ERSED IS ADMITTED. #rder $ "ule = &;( of the Civil Procedure "ules provides) ES!+7ect to s!+ !)e -C.A eve y a))e*at%on o# #act made %n a ")a%nt o co!nte c)a%m /(%c( t(e "a ty on /(om %t %s se ved does not %ntend to adm%t s(a)) +e s"ec%#%ca))y t ave sed +y (%m %n (%s de#ence to co!nte c)a%mK and a *ene a) den%a) o# s!c( a))e*at%onsA o a *ene a) statement o# non>adm%ss%on o# t(emA s(a)) not +e a s!##%c%ent t ave se o# t(em.8

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As e tracted from ?!d%c%a) :%nts on $%v%) P oced! e Colume ' by " /uloba '=:D at pages ;75;$. .ir *ewham 1orley 8 C5P in 4asdva /arsan v 0arnam .ingh >hogal &'=7;( 23 AACA %D AT %$. .ee also *ganga v /imani &'=$=( AA $%. The court held that the court had inherent power to grant a stay of e ecution pending an appeal from a refusal to set aside an ex parte decree. : -ucie5.mith 8 Ag C4 in #livia ?a "itta .iqueira A Bacho and another v .iquiera 8 "odrigues and "ibero &'=;;( '7 /-" ;D at ;$. = .ee below on the discussion on injunctions. '3 Infra at page '%.

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>elieve it or not 5 defences have been struc! on this point. In the case of P(a mace!t%ca) Man!#act! %n* $o. v Nove)ty Man!#act! %n* Ltd11 the court held) &As t(e de#ence d%d not s!##%c%ent)y t ave se t(e a))e*at%ons o# #act made +y t(e ")a%nt%## on t(e e*%ste ed t ade ma kA %ts man!#act! e and d%st %+!t%onA t(e e"!tat%on %ts " od!ct en7oyed and t(e manne %n /(%c( %t /as ma ketedA +y d%nt o# O de ;IA !)e 2 -1. and -1. o# t(e $%v%) P oced! e R!)es t(ose a))e*at%ons /e e deemed adm%tted.8 #ne must either admit or deny every material allegation of fact in the pleading of his opponent and he must ma!e it absolutely clear which facts he admits and which he denies. Care must therefore be ta!en to deal specifically with every material allegation of fact in a claim or counterclaim. It is in the power of the party either to admit or to deny each allegation in his opponents plea8 as he thin!s fit. If he decides to deny8 he must do so clearly and e plicitly. Any equivocal ambiguous phrase will be construed into an admission of it. If the judge does not find in the pleading a specific denial of a definite refusal to admit8 there is an end of the matterG the fact stands admitted. ,oreover it loo!s wea! to deny everything in your opponents pleading. It suggests that your have no substantial defence to it.'2 ,. NOTI$E OF 'IT:DRA'AL OR DIS$ONTIN=AN$E OF A S=IT #rder 2D "ule ' provides as follows) &At anyt%me +e#o e t(e sett%n* do/n o# t(e s!%t (ea %n* t(e ")a%nt%## may +y not%ce %n / %t%n* /(o))y d%scont%n!e (%s s!%t a*a%nst a)) o any o# t(e de#endants o may /%t(d a/ any "a t o# (%s c)a%mA and s!c( d%scont%n!ance o /%t(d a/a) s(a)) not +e a de#ence to any s!+seG!ent act%on.8 There is actually an important distinction which may not be a matter of mere terminology8 since it may affect the question of costs or the continuation of a new of action or the ma!ing of a new claim8 between a EdiscontinuanceF and a EwithdrawalF. The term EdiscontinuanceF appears to be directed to the final termination of the whole action or counterclaim8 so that no part of it survives an effective discontinuance8 whereas the term EwithdrawalF appears to be directed to the termination of part only of an action8 namely in action begun by writ8 of a particular claim made in the action or counterclaim8 and in an action begun by originating summons8 of a particular question or claim raised in the summons.';
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&233'(2 AA 72' Od*e s4 P %nc%")es o# P)ead%n* and P act%ce %n $%v%) Act%ons %n t(e :%*( $o! t o# ?!st%ce 2'st Adition '=%7 at pages '2$ to '2: ma!es e cellent reading on this point. '; .ee the .upreme Court Practice '==% Colume ' PA"T ' at pages ;%= para.2'<257<'

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It is attractive for one withdraw a suit simply because an ex parte injunction order was denied and then proceed to immediately file a fresh suit see!ing identical relief before a different court. >e warned this may horribly bac!fire. 0ere is why. In the case of T(e)!7% D y $)eane s Ltd v M!c(% % I 1 Ot(e s 'D the plaintiff had filed and sought an injunction in the high court. After it was declined8 the applicant withdrew the suit and filed a fresh suit in the subordinate court and obtained an injunction. #ne of the serious issues raised was the effect of the withdrawal of the suit and the implication of the endorsement of the withdrawal by the registrar $ days later. The question posed was when the withdrawal too! effect. 4ustice Atyang in an e plosive ruling held that the notice of withdrawal did not ta!e effect from the date of its filing but from the date it was adopted as an order of the court when it was endorsed by the ?eputy "egistrar. E. E9E$=TION OF DE$REES AND ORDERS. An e amination shall be made of some areas of e ecution a decree. "ead the relevant forms in Appendi ? at the bac! of the Civil Procedure "ules as they are standard and should be adopted. ttachment and sale of immovable property "ead the #rder 2' carefully. The summary of the essential steps now follows) a. #btain A* A>.T"ACT of TIT-A from the "egistrar of -ands. #rder 2' "ule '3 specifies production of a certified e tract from the land registries. It is important that this is filed in court together with the e ecution application8 as it will show if the property is encumbered. In the event that it is charged then the decree holder will only be entitled to the surplus in the event of a successful sale. b. After filing of the application above8 the Court will issue a Prohibitory #rder. The Prohibitory #rder must be) i. ii.
'D

"egistered against the Title with the "egistrar of -ands. .erved on the property to be attached.

&2332( 2 /-" %$D.

'D

iii. c(

.erved &if possible( on the judgment5debtor.

Bile your affidavit of service showing compliance with i to iii. In addition8 if the property is already charged8 then the ban! should be served as it has priority to the sale proceeds.

d( -ist the case for ta!ing Accounts and Bi ing Terms and Conditions of .ale. #ne must file a statement of account and ensure that an updated valuation report is available. Ta!e a date for sale at least $3 days away and identify your preferred auctioneer who shall conduct the sale. )*+,*-. ,/E 0E*) O+ *-#O!PO! ,*O- , ,/E E1E#2,*O- 3, .E The directors can be e amined as to what happened to the assets of the company under #rder 2' "ule ;$ &b(. They can no longer see! refuge behind the faJade of the corporate veil if they have deliberately misappropriated the companys assets. #ne ma!es an application see!ing to inspect all boo!s of account and other relevant boo!s such as ban! statements. The directors are summoned and if they fail to appear as! that a warrant of arrest do issue to show cause why they did not appear. #ne can also see! a prayer in the application for the lifting of the corporate veil and have the decree e ecuted against the directors personally. In $o "o ate Ins! ance $o. Ltd v Savema@ Ins! ance 6 oke s Ltd "4 4ustice "ingeraHs &as he then was( holding was summarised at page D2 as follows) &An a"")%cat%on !nde t(e " ov%s%ons o# O de 99IA !)e 1, %s " emat! e and %ncom"etent %# %t seeks t(e e@am%nat%on o# a co "o at%on +eca!se a co "o at%on %s not amena+)e to an o de #o e@am%nat%on. An a"")%cat%on #o e@am%nat%on !nde O de 99IA !)e 1, %s " emat! e and %ncom"etent %# + o!*(t +e#o e a dec ee %s e@t acted. T(e ve%) o# %nco "o at%on may +e )%#ted /(e e %t %s s(o/n t(at t(e com"any /as %nco "o ated /%t( o /as ca y%n* on +!s%ness as no mo e t(an a c)oakA mask o s(amA a dev%ce o st ata*em #o ena+)%n* t(e d% ecto s to (%de t(emse)ves # om t(e eye o# eG!%ty. T(e co "o ate ve%) can +e )%#ted at any sta*eA %nc)!d%n* e@ec!t%onA %n a"" o" %ate

'7

&2332( ' AA D'&CC/(

'7

cases. T(e ve%) o# %nco "o at%on %s not to +e )%#ted me e)y +eca!se t(e com"any (ad no assets o %t %s !na+)e to "ay %ts de+ts and %s t(!s %nso)vent.8 The judge once again reiterated the same point of law on lifting the corporate veil at the e ecution stage in the case of =)t%mate La+o ato %es v Tas(a 6%ose v%ce Ltd1,. 0e cited with approval the Anglish case of G%)#o d Moto $o. v :o ne'% and ?ones v L%"man1F. The judge held that the application for the lifting of the corporate veil should also be grounded on .. ;A of the Civil Procedure Act which preserves the inherent power of the court to ma!e such orders as may be necessary to prevent the abuse of the court process or for the ends of justice. L%m%tat%on B does a dec ee o o de #o ev%ct%on +ecome t%me>+a edL The court of appeal addressed this issue in the case of Ma)ak/en a a" Mas/a% v Pa!) Kos*e%'=. The main issue was whether enforcing a judgment after twelve years was captured by limitation. The decree holder was faced with this objection when attempting to enforce an order for eviction brought '$ years after the order was made. The court considered .ection D &D( of the -imitation of Actions Act8 which provides as follows) &An act%on may not +e + o!*(t !"on a 7!d*ment a#te t(e end o# t/e)ve yea s # om t(e date on /(%c( t(e 7!d*ment /as de)%ve edA o -/(e e t(e 7!d*ment o a s!+seG!ent o de d% ects any "ayment o t(e de)%ve y o# any " o"e ty to +e made at a ce ta%n date o at ec! %n* "e %ods. t(e date o# t(e de#a!)t %n mak%n* t(e "ayment o de)%ve y %n G!est%on and no a ea s o# %nte est %n es"ect o# a 7!d*ment de+t may +e ecove ed a#te t(e e@"% at%on o# s%@ yea s # om t(e date %n /(%c( t(e %nte est +ecame d!e.8 The court approved the dicta in the Anglish cases of Lam+ I Sons v R%de cases that an action to enforce a judgment after the period is statute barred.
03

and Lo!*(e v

Donovan2'which dealt with similar provisions under the relevant Anglish statutes. It was held in both

'$ '%

,ilimani 0CCC. *o. '2:% of 2333 &unreported(. &'=;;( Ch. =;7 ': &'=$2(' 1.C." :;2 '= Civil Appeal *o. 2;3 of 233' &CA Aldoret( also reported in &233D( e/-" 23 &'=D:( 2 A-- A." D32 2' &'=D:( 2 A-- A." ''

'$

The court also followed N7!*!na v N7a!22 the court of appeal in that case held that EactionF in the conte t of section of D &D( of the -imitation of Actions Act is not intended to bear a restricted meaning and therefore embraces all !inds of civil proceedings including e ecution proceedings. Payment o# A!ct%onee s Fees !"on " oc)amat%onMattac(ment> s(o!)d t(ey +e +ased on va)!e o# *oods attac(ed o t(e dec eta) s!mL This is one area that has caused concern when the party paying the auctioneers fees is faced with a colossal fee5note especially when the decretal sum is in the millions. The practice has been for auctioneers to base their fees on the decretal sum and not the value of the goods that were proclaimed. This has lead to unjust enrichment in many instances when the auctioneer had done nothing more than carry out a general proclamation without even stating the value of the goods attached. This point was decided by the court of appeal in the case of Nat%ona) Ind!st %a) $ ed%t 6ank L%m%ted v S.K Nde*/a2;. In this case the auctioneer ta ed his fees based on the decretal sum of /shs. %78%%2873'.73 and not on the value of the attached goods. The court held) The wording of paragraph D of Part II of the Bourth .chedule of the Auctioneers "ules '==% does not say that the percentages stated apply to the decretal amount. It would be unjust to base the fee on attachment on the decretal amount because in some cases8 the value of the attached goods may be many times less than the decretal amount shown in the warrant of attachment and sale. The main object of paragraph D is intended to provide values on the basis of which the auctioneers charges or attachment should be based on the value of the goods attached and not on the decretal sum. It is to be remembered that the auctioneer is to be remunerated for the actual wor! done and not on the basis of what he could have done had he attached goods equivalent in value to the decretal sum.
22 2;

&'=:'( /-" 227 *airobi Civil Appeal *o. '=7 of 233D

'%

F. RE;IE'. #rder DD "ule ' provides for an aggrieved party to review a decree or an order. 1hen the application is filed the applicant fails to e tract the decree or order. An astute adversary will simply have the application dismissed simply because the decree or order has not been e tracted and attached to the application. The court of appeal for Aastern Africa first considered this issue in '=;3 in the case of G!)am(!se%n M. ?%van7% I Ano v E+ a(%m M. ?%van7% I Ano.2D. The Court held at pages DD5D7) &A"a t # om any cons%de at%on /(et(e t(e co! se ado"ted +y t(e )ea ned ?!d*e %n e)at%on to t(e e5 parte o de o# t(e Ft( ?!)y 1213A /as o /as not /e)) #o!ndedA t(e G!est%on eme *es as to t(e " ec%se c(a acte o# t(e * %evanceA /(%c( m!st +e e@"e %enced +y a "e son a"")y%n* #o a ev%e/ o# a 7!d*ment !nde O de 9LII. A "e son a"")y%n* #o a ev%e/ !nde t(at O de m!st +e &a** %eved +y t(e dec ee o o de .8 T(e /o ds &dec ee8 and &o de 8 a e (e e !sed %n t(e sense set o!t %n t(e de#%n%t%ons sect%on 0 o# t(e $%v%) P oced! e O d%nance. Eac( dec ee necessa %)y #o))o/s t(e 7!d*ment !"on /(%c( %t %s * o!nded and %# a "e son %s a** %eved at t(e dec ee (%s a"")%cat%on s(o!)d +e #o a ev%e/ o# t(e 7!d*ment !"on /(%c( %t %s +ased. 6!t %n my o"%n%onA (o/eve a** %eved a "e son may +e at t(at va %o!s e@" ess%ons conta%ned %n t(e 7!d*ment o even at va %o!s O de !)%n*s em+od%ed t(e e%nA !n)ess t(at "e son %s 9LII a""ea +e#o e t(e ?!d*e /(o "assed t(e a** %eved at t(e #o ma) dec ee o t(e #o ma) o de +ased !"on t(e 7!d*ment as a /(o)eA t(at "e son cannot !nde 7!d*ment and a *!e /(et(e t(%s o t(at "assa*e %n t(e 7!d*ment %s tena+)e o

!ntena+)e. T(e ratio decidendi e@" essed %n a 7!d*ment cannot +e ca))ed %n G!est%on %n ev%e/ !n)ess t(e es!)tant dec ee %s a so! ce o# )e*%t%mate * %evance to a "a ty to t(e s!%t. In t(ese " oceed%n*s no es!)tant dec ee on t(e 02t( A!*!st 1213A (ad yet come %nto e@%stence. Indeed no attem"t to d a/ !" any (as as yet +een made. It %s t(e d!ty o# a "a ty /(o /%s(es to a""ea) a*a%nstA o a"")y #o a ev%e/ o#A a dec ee o o de to move t(e $o! t to d a/ !" and %ss!e t(e #o ma) dec ee o o de .8
2D

-aw "eports of /enya '=2=5;3 Col.'2 page D'

':

This case has been followed in the high court case in =(! ! :%*(/ay Deve)o"ment L%m%ted v $ent a) 6ank o# Kenya I 0 Ot(e s.0D "emember the golden rule when applying for review) do not delay and do e tract the decree or order8 which must form part of the application. 2. INSTIT=TING LEGAL PRO$EEDINGS ON 6E:ALF OF $OMPANIES. 1e are regularly instructed by directors of small companies that have serious boardroom battles leading to serious divisions amongst the directors. The need to see! immediate injunctive relief is usually the first instruction that we receive especially when the majority of the directors see! vengeance against a director who has breached his fiduciary duties to the company. In the absence of a resolution instructing your firm to institute legal proceedings against the recalcitrant director never ever ta!e up this brief. 6ou will simply be out of the frying pan into the fire when the defendants advocate applies to stri!e out your suit and have your firm condemned to bear costs of the suit. 6our professional indemnity cover may not even be sufficient to come to your aid8 if at allI The cases on this point are numerous5 L.N En*%nee %n* $onst !ct%on Ltd0,A 6!*e e $o##ee G o/e s Ltd v Se+ad!ka I Ano0EA A##o da+)e :omes A# %ca Ltd v Ian :ende son I 0 Ot(e s0Fs et cetera. This horror scene has been played out in numerous other cases. ?o not be a victim. 13. $:ALLENGES TO AFFIDA;ITS > S:=TTING PANDORA4S 6O9. 1e may all have being victim at one time or another when faced with a challenge to the affidavits that we have filed in court. The decisions on this point are numerous and conflicting. 2=An attempt will be made to highlight some of the technicalities that have arisen with a view to avoiding the altar of judicial destruction when the affidavits are struc! out.

27 2$

,ilimani 0CCC *o. 2= of '==7 &unreported( *airobi Civil Appeal *o. 'D of '==:. 2% &'=%3( A.A 'D% 2: ,ilimani 0CCC *o.72D of 233D &unreported( 2= Charles /anjama has written an e cellent summary of the various decisions on the topic of affidavits in E The >esieged AffidavitF an update by -aw Africa in its series called 0#T B"#, T0A >A*C0. The writer has gleaned most of the highlights from the article.

'=

#rder ': "ule D of the Civil Procedure "ules requires that every affidavit shall state the description8 true place of abode and postal address of the deponent8 and if the deponent is a minor shall state his age. The writer was once faced with a challenge to an affidavit simply because the abode was omitted. ;3

,a!e sure that the affidavit discloses who drew it. This omission has led to the stri!ing out of an affidavit. This omission has been found to offend the provisions of .ection ;7 &'( of the Advocates Act.;'

,a!e sure the deponent states that he has authority to swear the affidavit. ;2Bailure to do so will lead to the affidavit been struc! out on the ground of that the person was not competent to swear the affidavit.

The verifying affidavit must be confined to matters that the plaintiff can depose from his own !nowledge to be correct.;; The jurat must not be on an isolated page as this will lead to the affidavit being struc! out. ?o not date the verifying affidavit prior to dating the plaint. It has been held that dating a verifying affidavit one wee! before plaint was held to render it fatally defective.;D The commissioners e hibit seal must be endorsed on the actual e hibit and not on a cover blan! page. Bailure to comply may lead to the anne tures being e punged. ;7 Any document to be used in conjunction with an affidavit must be e hibited and not anne ed to the affidavit.;$

;3

4ovena AA -td v #nyango 9 #thers &2332( --" 23'$ &CC/(. *yamu 4. held that for an affidavit not to disclose the deponents true place of abode8 or verify the correctness &as opposed to the EtruthF( of the contents of the plaint and failure to depone to authority were fatal defects. 0is lordship cast his view in stone when he held in Pastificio @arafalo v .ecurity and Bire -td &233'( ' AA ':D that the challenges were &to the affidavits( were not irregularities in form capable of being regulariKed under #rder ': rule % because they were substantive irregularities. A violation of statute could not be an irregularity of form. ;' .ee the cases of 4ohann ?istelberbger v 4oushua /irinda ,uindi 9 Ano. 0CCC *o. ,isc. App. *o. '7:% of 233; &unreported(8 Apidi v .habir &233'( --" 7$;7 &0C/( ;2 Commerce >an! -td v Paradiso Court -td &2333( --" 2$:' &CC/( ;; @ulam 9 Ano. v 4irongo &233;( --" 27=2 &CC/(. ;D 4ovenna AA -td v #nyango 9 #thers &2332( --" 23'$ &CC/( ;7 Anna 1angui v Cictoria Commercial >an! -td &2333( --" 2D':. .ee also the case of ?iamond Trust >an! &/( -td v @are &/( -td 9 2 #thers ,ilimani 0CCC *o. 'D%D of 233' &unreported( where the court e punged the affidavit that had its pin! blan! cover pages endorsed with the e hibit stamp instead of the actual e hibits. ;$ #rder D' "ule II &'( of the "ules of the .upreme Court '=:2 edition. "ule = of the #aths and .tatutory ?eclarations "ules provides that all e hibits to affidavits shall be securely sealed thereto under the seal of the Commissioner8 and shall be mar!ed with serial letters of identification.

23

Ansure that the commissioner for oaths has a valid practising certificate lest your entire affidavit or suit is struc! out.;%?o also note that the court of appeal has held that a practicing certificate issued later in the year does not have retrospective effect and that any act done by an advocate prior to its issuance is invalid.;:

1hen ma!ing an application for summary judgment do adopt Borm ;A of Appendi A which sets out the format of the affidavit as follows;=)

NO. 1A AFFIDA;IT -O. 999;A 0. I A555555555o#55555555..make oat( and say as #o))o/sH 1. T(e de#endant-s. 55555555..%s -a e 7o%nt)y. and t !)y %nde+ted to 5555555.%n t(e s!m o# S(5555..#o 5555.and /as -/e e. so %nde+ted at t(e commencement o# t(%s s!%t. T(e "a t%c!)a s o# t(e c)a%m a e set o!t %n t(e ")a%nt #%)ed (e e%n. 0. I ve %)y +e)%eve t(at t(e e %s no de#ence to t(%s s!%t. 1. T(e #acts (e e%n de"osed to a e /%t(%n my o/n kno/)ed*e and I am d!)y a!t(o %sed +y t(e ")a%nt%## to make t(%s a##%dav%t. -St %ke o!t "a a* a"( 1 %# a##%dav%t made +y ")a%nt%##. 11. IN?=N$TIONS >e careful when a filing your injunction application and overloo!ing some of the following issues. 6andatory *n7unction

This aspect has been admirably dealt with in the case of Mo %s and $o. Ltd v Kenya $omme c%a) 6ankD3 .4ustice "ingera &as he then was( held as follows)
;%

In /enya Commercial >an! -td 9 Ano. v /enya 0otels -td Civil Application *o. D3 of 233D the court of appeal struc! out an application because the affidavit had been commissioned by an advocate who did not have a practising certificate. ;: /enya Power and -ighting Company v Chris ,ahinda T<A *yeri Trade Centre Civil Appeal &Appli( 'D: 233D reported in &2337( e/-". ;= ?eposit Protection Bund >oard .uing as -iquidator of Trade >an! -td v .unbeam .upermar!et -imited and 2 #thers ,ilimani 0CCC *o. ;3== '==$ &unreported(. .ee also the court of appeal case of ,wanthi v Imanene &'=:2( /-" ;2; where the court held that failure to strictly comply with the manner of ma!ing the application for summary judgment as prescribed in form ;A was not fatal. It reasoned that the deposition that the defendant was justly and truly indebted to the plaintiff was another way of verifying the plaintiffs belief that there was no defence to the suit and that8 in any case8 the defect of form was saved by the provisions of section %2 of the Interpretation and @eneral Provisions Act as the same did not affect the substance of the affidavit and it was not calculated to mislead. D3 &233;( 2 AA $37 &CC/( at page $3%

2'

&-I.t %s t %te )a/ t(at )a/ t(at %nte )oc!to y mandato y %n7!nct%ons a e not contem")ated +y O de 999I9 o# t(e $%v%) P oced! e R!)es. T(at O de on)y contem")ates %nte )oc!to y " o(%+%t%ve %n7!nct%ons. An a"")%cat%on #o a mandato y %n7!nct%on can on)y +e made "! s!ant to t(e " ov%s%ons o# sect%on 1A o# t(e $%v%) P oced! e Act and t(e " oced! a) mode %n t(at case %s a mot%on on not%ce "! s!ant to O de LA !)e 1 o# t(e $%v%) P oced! e R!)es. T(e ")a%nt%## (e e%n a""ea s to (ave +een (a)# a)%ve to t(e #o e*o%n* #o %ts a"")%cat%on does %nvoke sect%on 1A +!t #a%)ed to ea)%se t(at t(at co!)d on)y +e done %n a mot%on. So %n t(%s a"")%cat%on /(e e t(e ")a%nt%## so!*(t +ot( %nte )oc!to y " o(%+%t%ve and mandato y %n7!nct%ons %t /as %nc!m+ent on (%m to do so %n a mot%on on not%ceA #o !nde o! " oced! a) )a/ %t %s esta+)%s(ed t(at /(e e a matte "a t)y #a))s /%t(%n t(e sco"e o# a s!mmons %n c(am+e s and "a t)y /%t(%n a mot%on on not%ceA t(e )a *e " oced! eA name)y t(e mot%onA %s to +e %nvoked. :av%n* #a%)ed to do soA t(e ")a%nt%##4s a"")%cat%on %s a)so %ncom"etent #o t(%s add%t%ona) eason.8 ,he danger of omitting the prayer for permanent in7unction will leave you in tears.

Lnder #rder ;= rule 2 of the Civil Procedure "ules8 unless an application for a temporary injunction contains a prayer for a permanent injunction in the plaint8 the application is incompetent and the application is ripe for stri!ing out on that point alone. This point was considered by 4ustice "ingera &as he then was( in the cases of Mo %s and $o. Ltd v Kenya $omme c%a) 6ankC1 and K%(a a v 6a c)ays 6ank o# Kenya.D2 The learned judge summarised the position in the latter case when his lordship distinctly elaborated the remedies sought under #rder ;= rules ' and 2. +ailure to serve summons.

D' D2

supra &233'( 2 AA D23 &CC/(

22

Always remember that #rder ;= "ule ; &;( requires that when an ex parte injunction is granted the applicant shall within three days from the date of the order8 serve the order8 the application and the pleading on the party sought to be restrained. .ection 2 of the Civil Procedure Act defines pleading to include8 inter alia8 a petition or summons8 and the statements in writing of the claim or demand of any plaintiff. #rder D "ule ;&7( ma!es it mandatory that every summons shall be prepared by the plaintiff or his advocate and filed with the plaint. *ow the common danger that befalls many advocates is that in their Keal to serve the injunction application8 plaint and ex parte order8 they fail to e peditiously serve the summons. Time passes by and after a year has passed from the institution of the suit the diligent defendants advocate simply applies to have the entire suit dismissed because valid summons had not been served. 6aterial -on8disclosure 8 the bane of the secretive client. 1oe betide the client who either chooses to wal! the path of deceit or spin tales of woe spiced with half5truths and suppression of material facts. @loom and despair awaits you once the deceit is e posed. Ta!e heed the truth shall set you free if you come clean ab initio. The most concise e position on the law pertaining to serious material non5disclosure was adroitly analysed by the late 4ustice 0ewett in the case of ?o(n M! %t! K%*/e I Ano v A*%" -Kenya. L%m%tedC1. The plaintiffs deliberate concealment<suppression of material facts drew the judges wrath and indignation and ordered that the injunction application be dismissed with costs to be ta ed on an advocate5client basis. The judge summarised the position on material non5 disclosure after considering with approval several Anglish authorities on the point. The summary is as follows) a. It is the duty of a party as!ing for an injunction to bring under a notice to the court all facts material to the determination of his right to that injunctionG and it is no e cuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward.DD b. The material facts are those which it is material for the judge to !now in dealing with the application as made) materially is to be decided by the court and not by assessment of the applicant or his legal advisers.
D; DD

,ilimani 0CCC *o. 2;:2<== &unreported( Citing the dicta in the cases of The /ing v @eneral Commissioners for Income Ta &'='%( ' /> D:$ 8and >rin!s ,at. -td v Alcombe 9 #thers &'=::( ' 1-" ';73.

2;

c.

The applicant must ma!e proper inquiries before ma!ing the application. The duty of disclosure therefore applies not only to material facts !nown to the applicant but also to any additional facts which he would have !nown if he had made inquiries.

d.

The e tent of the inquiries which will be held to be proper8 and therefore necessary8 must depend on all the circumstances of the case including &i( the nature of the case which the applicant is ma!ing when he ma!es the applicationG and &ii( the order for which the application is made and the probable effect of the order on the defendant.

e.

If material non5disclosure is established the court will be Eastute to ensure that a plaintiff who obtains &an ex parte injunction( without full disclosure is deprived of any advantage he may have may have derived by that breach of duty.

f.

1hether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without e amination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application.

g.

It is not for every omission that the injunction will be automatically discharged. The court has the discretion nothwithstanding proof of material non5 disclosure which justifies or requires the immediate discharge of the ex parte order8 nevertheless to continue the order8 or to ma!e a new order on terms.

2nderta9ing as to :amages

>y the underta!ing as to damages the party obtaining the order underta!es to abide by any order as to damages which the court may ma!e in case it should afterwards be of the opinion whether the defendant has8 by reason of the order8 sustained any damages which such party ought to pay.D7 The plaintiffs underta!ing as to damages on an order for an injuction remains in force notwithstanding the dismissal or discontinuance of the action8 and if the plaintiff ultimately fails on the merits the defendant is entitled to an inquiry as to the damages sustained by reason of the interlocutory injunction8 unless there are special circumstances. The underta!ing applies8 even if the plaintiff has not been guilty of misrepresentation8 suppression or other default in obtaining
D7

0alsburys -aws of Angland Dth Adition "eissue Colume 2D at paragraph =:2 quoting the case of Tuc!er v *ew >runswic! Trading Co. of -ondon &':=3( DD Ch? 2D= CA.

2D

the injunction8 and is equally enforceable whether the mista!e in granting the injunction was on a point of law or on the facts.D$ $onc)!s%on As pointed out at the outset8 this e position was not meant to be e haustive in pointing out all the areas where blunders or oversights are made. There are numerous other instances where care and caution should be ta!en. The first step is to follow the Civil Procedure Act and the "ules to the letter. The ne t step is to ensure you are up to date with the law. The practice of law is a continuous learning process that does not stop with law school. There is no greater investment than !eeping abreast with topical areas of concern in the legal practice. A))en 'a%yak% G%c(!(% O033,

D$

0alsburys supra at paragraph =:;

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