LAW DEVELOPMENT CENTRE

DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

CIVIL PROCEDURE
Qn1. What is the meaning and purpose of civil procedure?

Civil procedure refers to a body of laws that prescribe the process of enforcing individual civil rights
and it sets out the rules and standards that the courts of law follow when adjudicating civil law suits.

The civil process, rules and standards include; Pleadings, service of process, orders allowed in civil
cases, conduct of trials, process for judgment, pre and post-trial remedies and realization of the
litigation fruits.

Enforcement of civil law is the responsibility of the individual who has been wronged where the
claimant sues a defendant in the civil court.

The purposes of civil procedure includes the following

Civil procedure is one of the avenues that assists court to reach a trustful and just decision since the
miles of procedures are the maidens of justice.

Civil procedure explores the basic steps and documents required in the enforcement of civil
rights

This procedure is meant to ensure orderliness predictability and transparency during civil trials.

The purpose of civil procedure is to remedy the wrong which has been suffered through
Injunction, Attachments and sells, vacant procession Etc.

The procedure promotes transparency through trial whereby it enables the parties to prepare their
cases appropriately well knowing what the law requires.

Qn. 2. Using examples, explain the contents of the plaint and a defence?
According to Black’s law dictionary, a plaint is a prival memorial tendered in an open court of law
before a judicial officer where the party injured sets forth his or her cause of action.

A plaint can be described as a statement in writing of grounds of complaint of law asking for
redress or remedy of grievance. Aplaint is a document that institutes a claim or suit in a court.

There are two types of plaints that is the specially endorced plaint under Order 36 and plaint
under ordinally suit under Order 4

O7r1 of the Civil Procedure Rules provides for the contents of a plaint
• Name of the court of law
 • The name, description and place of residence of the plaintiff with the address of service.
• Name, description and place of residence of the defendant so far as they can be ascertained.
Where the plaintiff or the defendant is a minor, or a person of unsound mind, a statement to
• that effect.
The facts constituting the cause of action and when it arose
• The facts showing that court has jurisdiction.
• The relief which the plaintiff claims
• Where the plaintiff has allowed a set off or relinquished a portion of his or her claim, the
• amount so allowed or relinquished, and a statement to that effect.
It is followed by a list of witnesses to use, authorities, relifs sought.
•

DEFENCE statement of claim admitting or denying each and every one of the facts contained in a
claim. It is taken to court in reply to a claim as a written statement of defence.

O.9r1 of the Civil Procedure Rules provides for the contents of a defence

1. Date of filling

2. Name of the defendant

3. The address of service

4. The defence must respond to all allegations of facts and of law, admissions and
denials.

5. The defendant must show if he or she is to appear in person or through representation by

an advocate

6. It may also contain a counter claim or a set off if any

Qn. 3. (a) Explain the meaning of mediation.

(b) How is mediation done?

(c) What are the advantages of mediation?

(d) What are the challenges which mediators face during mediation?

Rule 8 of Judicature (Commercial Court Division) Mediation Rules 2007, Mediation is

mandatory in all matters before commercial court.
Mediation is an informal and flexible dispute resolution mechanism which involves a neutral third
party, whose intervention facilitates communication and negotiation between the disputing parties to
foster a mutually agreed settlement between them.

Mediation can also be defined as a voluntary private dispute resolution mechanism in which an
impartial third party assists conflicting parties to reach a negotiated settlement.

Mediation process and out-comes are non-binding to the parties however, in civil procedure
mediation is a mandatory phase to any suit instituted.

Q3b The procedure how mediation is done includes the following

In civil procedure suit within 14 days after filling in of the court document is complete, notify the
parties of the mediation commencement by way of notice.

A typical mediation progresses through the following stages;

• Initiate a mediation

Parties may file a request for mediation to begin the process.

• Mediator selection

Before parties begin mediation process, they select a mediator.

• Mediation summary with pleadings
This contains brief facts of the case, documents to be relied upon, and persons mandated to
appear before the mediator. This is submitted by parties.

• Mediation session

During a mediation session, the mediator makes the opening comments, and this introduces the
parties to the mediation process. The parties make then their opening statements in which they
express their facts and feelings as perceived by them.

The mediator helps the parties to refine and finalize their agreement in a proper legal way.

Mediator helps the parties to negotiate and work towards an agreement.

Mediation is strictly between parties and their mediator and lawyers are as much as possible
avoided and it is done in neutral place not in an open court.

When mediation is court next it must strictly be concluded strictly within 60 days but where
there is a hope of solving the matter but 60 days have elapsed before conclusion, parties may
apply to court for extension of mediation time.
 At the end of mediation, if parties have resolved the matter, a settlement agreement is made and
where parties disagree the matter is referred to court for litigation.

Where mediation is court annexed the mediator makes a report to court at the end of the
mediation secession telling court how the mediation session ended and why it ended that
way.

• Settlement
This occurs when parties resolve their disputes.
• Impasse
This occurs when parties fail to resolve their disputes
It is also important to note that both parties should meet the cost of mediation.

Q3c The advantages of mediation include the following

• Flexibility and simplicity of procedure
• Quick decision making due to full involvement of both parties.
• Reduced costs compared to arbitration and litigation.
• Satisfaction or contentment to the disputed parties since it always a win-win situation
• Preservation of good business and personal relationship
• Keeps privacy especially in family and business matters.
• It provides informal or a less confrontational means of dispute resolution.
• Creates room for relief and contentment.

Q3d The challenges which mediators face during mediation include the following
• Limited time
In order for some disputes to be resolved for a win-win situation the resolution may have to be
concluded within 60 days for court annexed mediation. However, when parties fail to agree the
resolution procedure drags on beyond the required time.

• Refusal to accept the out comes

Due to the voluntary nature of mediation, a party may refuse to accept what is termed as the best
resolution and therefore refuse to comply with the mandate of the award since it is non- binding to
the parties.

• Lack of will of the parties towards mediation

Some parties have no willing attitude towards mediation, and once sessions are fixed, they tend to
abscond hence wasting a lot of time without any productive progress.
 • Lack of sensitization to the public
Mediators face a challenge that the public is not aware of the mediation and other alternatives
disputes resolution mechanisms hence they pay less attention to it as they are only aware and used to
the common court litigation.

Qn. 4 Explain the procedural steps that are followed in filling a suit in court?

Section 19 Civil Procedure Act, provides that every suit shall be commenced as prescribed by
rules, however before any other case is instituted a person is required to give a notice of
intention to sue.

The following are the procedural steps of filling a suit;

• Plaint

O4r1 CPR provides that every suit shall be commenced by presenting a plaint to court or to an
officer of court which in case of high court is the registrar
• Accompanying documents

The plaint must be supported by a summary of evidence a list of witness and authorities that the
plaintiff intends to rely on
• Payment of court fees

When paying court fees the required filling fees must be paid in the bank evidence of
payment attached to the plaint

In the case of Katuramu Vs Maringo (1992/1993) HCB 161. It was held that no action is filed
unless fees have been paid.

Under O.7r11(c) a plaint may be struck out where court orders the party who has paid
insufficient fees to pay the balance but such a party fails to comply

4. Summons

O.5r1 Civil Procedure Rules when a suit has been duly instituted summons may be issued to the
defendant ordering him or her to file a defence within 15 days from the date of service of the
plaint with summons
 Such summons must be served to the defendant within 21 days after court issuing them.

This is followed by mediation that provides the basis of whether the case shall proceed to trial
or solved through mediation.

Qn.5 Using examples explain the meaning and importance of cause of action

Cause of action is referred to as facts or a combination of facts that gives an individual or entity the
right to seek a legal remedy against the other.

Cause of action can also be viewed as the set of facts alleged by one party; plaintiff if not
traversed or denied by the defendant, entitles to the plaintiff a remedy.

In AG Vs Gen, Tinyefunza SCCA No.1/1997 cause of action refers to every fact pleaded which if
not traversed will entitle the plaintiff to a judgment against the defendant.
Wambuzi C.J stated that: cause of action means “every fact which if traversed, it would be
necessary for the plaintiff to prove in order to support his or her right to judgment of court.

In other words it is a bundle of facts which if taken with law applicable to them gives the
plaintiff a right to relief against the defendant.

O.7r11 provides that a plaint shall be rejected if it does not disclose a cause of action. Simply having
a grudge on someone does not give rise to a cause of action there must be a right violated.

In auto garage Vs Motokov (1971) three elements must exist for there to be a valid cause of
action.

• A plaintiff enjoyed a right

• The right has been violated
• The defendant is liable

Examples of cause of action

These include; Breach of contract, Tress pass both on land and person, False or Malicious
prosecution, statutory cause of action, Negligence, nuisance, violation of human rights among
others.
The importance of cause of action includes the following;
• Basis of instituting any civil suit
In any civil suit a plaintiff or petitioner must mention or disclose the cause of action if it is to be
instituted as a civil suit.
A cause of action therefore is the reason that a civil suit exist in the first place

• Basis for remedy

A cause of action also provides a basis for determining remedy/relief a court is asked to grant.
Court hence looks at the nature of wrong and the prayer of the plaintiff in order to direct itself on
the possible remedy

• Basis for orderly proceedings

Cause of action has two parts, the legal theory showing the wrong the plaintiff alleges to have
suffered and the remedy. This narrows the scope of court to simply address the wrong and seek
the relevant remedy

• Basis for avoidance of frivolous and vexatious accusation

Elements of cause of action clearly determine that there must have been a right enjoyed by the
plaintiff, this right has been violated and the defendant has violated this right.

Qn. 6a. Explain the meaning of scheduling conference and how it is done?

A scheduling conference is a compulsory pretrial meeting of lawyers and parties at the court to
decide on how the matter should proceed.

O12r1 of the Civil Procedure Rules states that the court shall hold a scheduling conference to sort
out points of agreement and disagreement, the possibility of mediation, arbitration and any other
form of settlement.

Scheduling conference, like mediation is mandatory in that a party cannot opt the same out.
Under the law, a scheduling conference is mandatory meaning that court cannot hear a civil case
unless both sides have carried out a scheduling conference.

In Tororo Co. Ltd Vs Frokina International Ltd, SCCA No. 21 of 2001. It was observed that the
principle objective is for systematic management of suits.
Scheduling conference can be done in court or parties may with leave of court schedule on their
own and file a joint scheduling memorandum in which case the parties and their respective lawyers
meet amongst themselves without the presence of the judge or magistrate. This is intended to save
courts’ time.

Where the parties reach a joint scheduling conference, they or their respective counsels are
supposed to jointly sign the same and file it before court.

Where the parties fail to schedule the case among themselves, then the court directs that they
appear and schedule before court.

In the scheduling conference the parties and their lawyers to the following;

• Each party states the brief summary of their case

• Parties agree on the agreed facts of the case; which facts will require no proof at the trial.
Once a fact has been agreed upon by all the parties, it taken as to exist and therefore requires
no further proof.

• The parties also agree on the issues to be determined by court which issues bind both parties
in that parties are not allowed or at liberty to divert from the issues framed. These are
determined or framed from the disagreed facts and become matters in contention hence the
basis of the trial.

• Parties agree on the documents to be relied upon by court. The documents which are
agreed upon by court are marked as court exhibits. The court has to rely on such
documents in deciding the matter and a party loses the chance of objecting to the
admission of such documents in evidence.

• Each party must state its other documents not agreed upon. These documents not agreed
upon have to be tendered in court during the testimony of witness.

• Parties also agree on the number of witness and their relevancies, whether interpreters are
required among others.

Qn. 6(b) what are the advantages of a scheduling conference?

A scheduling conference saves courts’ time

The court only focuses its attention on the real issues for determination time which would have
been otherwise wasted on proving uncontested facts is saved.

Scheduling conference can help the parties to exploit the alternative dispute resolution. This
happens when after scheduling conference a party realizes that it has no case, may suggest
settling the same through arbitration, mediation, or reconciliation.

The method of scheduling conference paves way for orderly proceedings, the issues are
determined, if a party intends to raise a preliminary point of law (objection) informs court and the
other party that he or she intend s to do the same.

This method of scheduling conference reduces on the element of surprise in trial because facts of
agreement and disagreement, witnesses are already disclosed.

Qn 7 Who has the capacity to sue or be sued?

Parties to a suit must be persons who the law recogonises as having the capacity to sue or be
sued. The general rule is that all parties with legal capacity can sue or be sued.

In RT.COL. Kizza Besigye & others Vs the DPP & Ag constitution petition No. 12 of 2006.

The constitution court reiterated the principle that only parties recognized by law as having
legal existence can sue or be sued.

Since the DPP was not a legal entity but a department of the government that had no
independent legal existence and was not a suable entity.

A LEGAL/ARTIFICIAL PERSON

An entity which has a legal capacity to represent its own interests in its own name before court
of law, to obtain rights or obligation for itself to impose binding obligations to grant privileges
as plaintiff or defendant, it is a status conferred by law and not simply assumable.

All legal persons can sue or be sued and legal persons may include; individuals, Government,
corporate bodies, incorporated companies.

PARTIES TO SUIT

Adult individuals of sound mind

 Adults of sound mind are competent parties and they are competent to institute a civil action or
to be sued.

1. Minors

O.32r1 A minor can sue through a next friend and can be sued through a guardian. A minor
cant in person assert his or her rights in court of laws as a plaintiff or applicant nor make
himself liable as a defendant or respondent for costs.

In hajji Sabiti Matovu Vs Uganda L.M 19 78 HC 129 During the trial it came out that the
third plaintiff was a minor an counsel for defendant applied that suit be taken out of the file.
Under O.32r1 CPR it was held that the proceedings were irregular and could only continue if
the plaint was amended to include the next friend. A plaint by a minor without authority of the
next friend is improper and must be taken off the file but can refiled in accordance with the
law.

2. Incorporated companies

Sec.15 (2) of Companies Act, clarifies that, companies are competent parties that can be sued
or be sued in their corporate names.

A company upon incorporation becomes a legal entity distinct from its shareholders and can
sue or be sued.
• Local government

Sec.6 of local government Act amended confers a legal status on local government; they can
sue or be sued. Local government has independent existence from central government and is
liable for their acts or acts of their servants.

• Statutory corporations
These are bodies created by statute which confers upon them a distinct legal status. In effect they can
sue or be sued in their own corporate name. Examples include; URA, KCCA, CAA, UWA, NWSC.

• Government
Government is a suable entity but suits by or against government are initiated in the name of the
Attorney General Sec 10 of Government proceedings Act and Article 250(2) of the constitution of
Uganda.
Government is liable for acts of its employees committed in the course of the employment.
Government can be sued for breach of contract, torts of its employees, constitution matters, and
matters of violation of human rights

• Government departments
Some government departments are conferred by with corporate status and can sue or be sued in
their corporate names e.g. UNEB, Registrar General, IGG

• Trustees, executers and administrators

O.31 of CPR the board of trustees upon registration acquires a corporate and they can sue or be
sued. Sec.4 Trustees corporation Acts e.g. Board of trustees of Namirembe Diocese

Qn. 8 Explain the procedure for service of summons on the following:

A person /Natural
Service to be on the defendant in person or his/her agent or advocate.
Service can also be affected on adult members of the defendants’ family as provided for under
O.5r Civil Procedure Rule where the defendant can’t be found

•A company
Under O.39r2 Civil Procedure Rules service of a court process on corporation is to be effected
upon a principle officer of a corporation. These include; Directors, General Manager, secretary
to the board etc Augustine Okurut Vs Gerald lwaswa, 1998 HCB 164

•A soldier (UPDF)
O.5r20.CPR. In case the defendant is soldier service may be done to the commanding officer of
the unit where the soldier is deployed together with the copy to be retained by the defendant.

•Prisoner
O.5r19 CPR where the defendant is a prisoner /confined person, the summons shall be delivered
or sent by post or otherwise to the officer in charge of the prison who is also in charge of the
defendant together with the copy to be retained by the prisoner.

•Partnership
Where persons are sued as parties in their name the form summons shall be served upon any or
more of the partners at the principle place of partnership in Uganda or at court direct

•Attorney General
Article 250 of the 1995 constitution of Uganda, all documents required to be served on
government for proposes or in connection with any civil proceedings by or against
 Government should be served to the Attorney General as per Sec. 11 of the
Government proceedings Act.

Service to the Attorney General shall be effected by delivering or sending summons to the
Attorney General or the officers of the government entitled to practice as advocates in connection
to the duties of the Attorney General.

Qn. 9 Explain the meaning and procedure for substituted service.

Substituted service is the service of process upon a defendant in any manner authorized by
statute or rules other than personal service within the court jurisdiction.

Such service can be by affixing a copy of summons in some conspicuous place in the

Court, house if any in which the defendant is known to have last resided or carried out business or
personally worked for gain, by publication, e-mailing, recently by face book among others upon
the orders of court.

This is provided for under O.r18 CPR. The service is effective within the jurisdiction of court and
where the defendant is outside the court jurisdiction, say outside Uganda, service by way of
substituted service is not effective.

In David Ssesanga Vs Green land bank LTD. MSC CIVIL APPEAL (MCA) 406/2001

It was held that substituted service was not effective where the defendant at the time of service was
outside the High court jurisdiction.

PROCEDURE FOR SUBSITUTED SERVICE

This is by chamber summons or Ex-parte supported by affidavit sworn by the person who
attempted and failed to serve the defendant in ordinary manner.

When the plaintiff attempts for at least 3 times to serve summons to the defendant and fails for
reasons, that the defendant may be hiding or any other reasons, the plaintiff may apply to court
which application is supported by an affidavit showing that attempts were made to serve summons
in ordinary way but failed.
Under O,5r18(1) where court is satisfied for any reason that the summons can not to be served in an
ordinary way the court shall order the summons to be served by affixing a copy, publication, e-
mailing etc

O.5r18 (2) substituted service under an order court shall be as effectual as if it has been made on the
defendant personally.

O.5r18.3 where court makes an order for substituted service it shall fix such time for the
appearance of the defendant as the case may require.

Qn 10 Explain the procedure that must be followed in proving serving service of summons.

O.Vr16 CPR provides that whenever summons have been served, the person who effected the
service must file an affidavit of service stating the date and time, manner in which summons
where served, name and address of the person served etc

In MB Auto mobile Vs Kampala bus service (1966) EX 450 Court held that “Failure to record the
name and address of the person to be served renders the affidavit of service incurably defective.

Under O.Vr14 CPR whenever summons are served the person served must sign acknowledgment of
service on the original summons except that if court is satisfied that the defendant or his or her agent
refused to endorse, the court may declare summons to have been duly served.

Where the defendant can’t be found and a copy of summons are fixed on any conspicuous place or
part of his or her house, service shall be proved by returning the original copy of the summons from
which it was issued with a report endorsed on it or annexed to it stating that he or she so affixed the
copy, circumstances in which he or she did so and the name and address of the person if any by
whom the house was identified in whose presence the copy was affixed.

Qn11.a Explain the meaning of default and Ex-parte judgments.

Default judgment is the judgment or court’s decision that is given after the defendant has
deliberately refused to file a defence within the prescribed time basing on the type of the plaint.

If the service of summons was successful acfter an affidavit of service has been produced. The
defendant has to file a defence and appear to court for the purposes of defending himself but if he
fails the court can give an instant judgement called the default judgement.

Exparte judgement is a judgement given after the proceedings have gone on without the
existence and defence of the other party.
It depends on the discretion of the court that tries that case either to give a default judgement or
exparte judgement.

Qn 12 What is the civil jurisdiction of the following courts?

Jurisdiction

This is the power and authority vested in a court or tribunal to try determine a matter arising
from within a given territory or to try a given case or matter.
• Supreme Court.
Article 130 of the 1995 Uganda constitution creates the Supreme Court which presided over by the
Chief Justice.

This court has original civil jurisdiction over all presidential election petitions as amended by
article 104 of 1995.

The Supreme Court has an appellate jurisdiction on all civil appeal arising from court of appeal or
constitution court.

The Supreme Court is the final court of appeal and an appeal lies to the Supreme Court from
such decisions of the Court of Appeal as may be prescribed by law

• Court of appeal
The court of appeal is created under Article 134 of 1995 Uganda constitution. This court has no
original civil jurisdiction.
This court handles appeals from the high court of Uganda.

• Constitutional court

The constitutional court is created under Article 137 of the 1995 Uganda constitution.

This court has original jurisdiction over constitutional matters

In a care of Maseru Musene & others Vs. Attorney General (2005)

• High court
The high court is created under article 138 of the 1995 Uganda constitution.
It is presided over by the principle Justice.
The high court has unlimited civil jurisdiction both Geographical and pecuniary.
It also has appellate jurisdiction from Grade I and II courts
The high court has got powers of judicial review and supervisory role of courts with its
jurisdictions.
It also tries parliamentary electoral petitions

• Chief magistrate court

This is provided for under section 207 (1a) of the Magistrate court Act.
A chief magistrate shall have jurisdiction where the value of the subject matter in dispute does not
exceed five million shillings and shall have unlimited jurisdiction in disputes relating to conversion,
damage to property or trespass.

• Grade I magistrate court

This is provided for under section 207 (1b) of MCA a magistrate grade I shall have jurisdiction
where the value of the subject matter does not exceed two million shillings;
It also has unlimited jurisdiction over matters civil in nature governed by customary law.

• Grade II magistrate court

This is provided for under section 207 (1c) of MCA a magistrate grade II shall have jurisdiction
where the value of the subject matter in dispute does not exceed five hundred thousand shillings.

Qn. 13 Explain the trial process in civil proceedings

After a defence is filed, the file is allocated to the mediator for mediation and if mediation is
conducted finished and it has failed, the matter shall be taken to the trial before a magistrate or
judge with a report of what transpired in mediation. Court then fixes a date for hearing.

At mention both parties appear in court and they present a joint scheduling memorandum done by
them in absence of the judge or court fixed date for scheduling conference for both parties in the
case in presence of the trial magistrate.

Here the parties agree on issues of agreement and disagreement, documents to be relied on,
number of witnesses and mode of proceedings.

After the scheduling conference, the date of hearing is set at trial the plaintiff has the right to
begin the case by adducing his or her evidence as well as summoning evidence.
Examining witness

Plaintiff and his or her own witness shall be examined in chief then cross examined and re-
examined.

After the plaintiff and the witnesses have given all their evidence, the plaintiff closes his or her
case.

The defendant then submits his or her witness and evidence they are also examined in chief cross
examined and re-examined and once the defence and all its witness are done the defendant closes his
or her case.

Final submission

After evidence of all witnesses from both sides has been taken, the parties have a right of address the
judge or magistrate generally on all issues raised during the trial.

The plaintiff has the right to begin in the final submission, the defendant replies and then the
plaintiff rejoins.

After final submission, court fixes a day for judgment. The judgment is supposed to be signed and
dated in open court at the time of pronouncing it.

Court after pronouncing judgment it informs parties if not contented to appeal within 15 days

Qn. 14 Explain the contents of the following

It is a reasoned court decision of the rights and obligations of the parties in the suit
A final verdict or pronouncement of court on a particular matter that was brought before court to be
resolved

Under O.21r4 CPR. The judgment must be in writing with the following contents.
• The suit number
• It must contain brief facts of the case
• Issues for determination
• A summary of relevant evidence produced in court and reasons for accepting or rejecting that
evidence
• The decision taken by court on the case and the reasons for having taken that decision
• It must be written in English, signed, sealed and dated
• It should show the relief granted by court.
• DECREE
This is a formal expression of the rights for the parties with regards to the matters of controversy in a
suit.
Qn. 15 List the items that are liable to attachment a
O. 21r6 of CPR a decree shall agree with a judgment and it must contain the following:
• The number of the suit
• Names and descriptions of the parties involved in a suit
• Specify clearly the relief granted or other determination of the suit
• State by whom or out of what property or in what proportional costs incurred in suit are to be
paid.
• Direct that cost payable to one party be set off to pay the other party and those that are not liable
to attachment

Items liable to attachement

O.23 CPR
• Land
• Goods
• Money
• Bank notes
• Cheques
• Government securities and bonds
• Debts,ml
• Shares in a co-operation

Items exempted from attachement

• Necessary wearing apparatus i.e. cooking vessels, beds and beddings, personal ornaments,
working etc
• Tools of artisans like hoes, slashers, black smith’s tools and where the judgment debtor is an
agriculturalist such implements of husbandry i.e. livestock and agricultural produce not
exceeding the value of stock may not be liable to attachment
• Books of accounts
• A mere right to sue for damages
• Any right to personal services is not attachable e.g. life insurance
• Stipends and gratuity allowed to pay pension
• The salary of a public officer should not be attached beyond 0.5 of the salary
Qn. 16 List the items that must be included in an application for execution of a decree.

Execution is the process of realizing the fruits of judgment by enforcing the decree against the
unsuccessful party.

O.22r7 CPR in relation to application of execution of a decree, the holder applies for execution to
court which passed the decree or to that court to which the decree has been sent.

O.22r8.2 The application for execution of a decree must be in writing, signed and verified by an
applicant or his or her advocate and it must be a table form containing the following:

• Suit number
• Names of the parties
• Date of the decree
• Whether any appeal has been preferred
• Whether any and if any payment or the adjustments of the matter in controversy has been
made between the parties subsequent to the decree.
• The amount with interest if any due upon the decree or other relief granted by the decree
whether passed before or after the date of the decree.
The amount of the cost if any
•
Name of the person against whom execution is sought
•
The mode in which assistance of court is sought
•

17. Explain the modes of execution of a decree

According to Black’s dictionary execution is the authorization to a decree issued from court in which
judgment has been rendered for the purposes of caring out judgment into force and action.

Under o 22 r8.2 the modes of execution include:

• By delivery of any property specifically decree O22 r 32.
• Attachment and sale or by sale without attachment of any property
• By arrest and define in prison of a judgment debtor under (40 PCA)
• By appointment of a receiver o 42 r 1 CPR
• By attachment of n of a if a disc debt/ garnishee proceedings. In the case of sander
Vs municipal council of Nairobi
 Qn18 Explain the grounds and procedure for stay of execution

The grounds for stay of execution are provided for under Order 43 rule 4 (3) of the CPR and
they include the following;

That the substantial loss may result to the party applying for stay of execution unless the
order is made

That the application has been made without unreasonable delay

That the security has been given by the applicant for due performance of the decree or order as
may ultimately be binding upon him/her.

However the court may make an exparte order for stay of execution pending the hearing of the
application

The applications are by motion on notice; an exparte order under stay by high court may be
made on a summons in chambers.

It can be granted automatically by operation of law or conventionally, when the parties in a civil
or criminal case agree that no execution shall occur for a certain period. If a party appeals a
decision any judgment issued by the original court may be stayed until the appeal is resolved.

Qn19 Explain the grounds and procedure for objector proceedings

Objector proceedings to be properly before court, there has to be an attachment of property. The
execution which is being contested and objected to is not an attachment

Therefore proceedings to release the property from attachment are not proper

In the case of Ida Soman Vs Najib Mubiruand Joyce Lubega HCCA234/2005 Justice Kiryabwire
held that in objector applications “the scope of the investigations to be carried under the rules are not
for determining ownership threatened by the parties .One of the parties has to sue to determine the
issue of ownership.

The question to determine is whether at the date of attachment the judgment debtor or objector was
in possession of the property. If the judgment debtor was in possession, the inquiry will proceed no
further. It has also to be determined whether the objector held the property on his/her own account
or in trust for some other person.

Qn 20. (a) What the definition of an appeal?

 An appeal can be defined as the judicial examination of a high court of a discussion of an
inferior court.

An appeal is the process of re-examining by a high court of a judgment an order or

discussion made by a lower court in the suit

20b Does an aggrieved party in civil matter has a right to appeal?

Yes an aggrieved party has a right to appeal.

A right of appeal in civil matter is a Creature of statute in that there must be a law
allowing the party to appeal

In case of Sempabwa Charles and 134 others Vs silver springs hotel (1969) CCA .In this case
it was held that the right to appeal is a statutory one.

Some appeal lies to the appellate court as a right and some with the leave of the trial
court.

Q20 cWhat is the procedure for institution of a civil appeal?

Every appeal commences with notice of appeal which must be filed within 14days from the
date of the decree or order appealed against.

The appellant is supposed to write a letter requesting for the proceedings to be able to
prepare for a memorandum of appeal.

This letter has a legal effect that it freezes time for appeal which starts to run when the
record is communicated to be ready.

Under O.43.r1 CPR an appeal has to be lodged in the high court by filling a
memorandum of appeal.

This has to be done within 30 days from the time when the record of proceeding is ready
according to CPA

The appeal from the order of the registrar is to be lodged within 7 days from the date of the
order.
 O. 43r 10 CPR shows that upon receipt of the memorandum of appeal, the registrar high
court is expected to notify the lower court to avail the file.

The memorandum of the appeal is to be served on the respondent who is supposed to file his or
her Notice of address (reply to the appeal)

The appeal is then heard interparty based on the record of appeal from the lower court. This
means that for exceptional circumstances the appellate court cannot receive new evidence.

During hearing of the appeal, parties are confirmed to the grounds raised in the memorandum of
appeal in that no one is to argue the ground which is not framed in the memorandum of appeal.

Upon hearing an appeal the appellate court may uphold the appeal, set aside the decision of the
lower court or may confirm the decision of the lower court in which they will dismiss the appeal.

Q20d Explain the contents of a memorandum of appeal?

A memorandum of appeal is a set of grounds of upon which a judicial examination is prayed for
and contains the following;
• A concisely and under separately heads ,ground of objection of a decree appealed against
without any argument or narratives under O.43r1(2)
• The memorandum of appeal is to be accompanied by a copy of decree on order appealed
against.

Any memorandum of appeal does not satisfy the requirement above will be incompetent and
will be struck off record.

Q20e What is the time within which an appeal should be lodged?

Sec.79 of the CPA. Is to the effect that an appeal must be lodged in court with in a period of 30
days from the date the decision intended to appeal from.

However, court may a good cause extend the time and where the time was frozen appeal
must be 30 days when the record is ready.
The appeals from the order of the registrar are to be lodged within 7 days from the date the order was
made.

Qn. 21 (a) Define Revision

This is provided for under Sec. 83 of the CPA. It is an act of re-examining proceedings in order
remove a defect or grant a relief a against irregularity or non- exercise of jurisdiction
Revision is done by high court only. It is also a procedure in which High court can revisit the
proceedings of magistrate’s court.

Qn.21 b Which court has a jurisdiction to revise a decision?

Under sec. 115 of CPA revision only applies to the High court

Qn. 21 c What are the grounds of revision?

Under sec. 83 of the CPA the high court may call for records of any case which may be
determined under this act by any magistrate’s court if that court appears to have
• Exercised a jurisdiction which is not vested in it by law
• Failed to exercise a jurisdiction so vested
• Acted in exercise of its jurisdiction illegally or with material irregularity or injustices
• The high court may revise and make such orders as it thinks fit

In CK. Makumbi Vs Ssumane Byamulinga (1968) EA 643 HCT. The law on revision applies to
jurisdiction alone, the irregular exercise, more exercise of it or illegal assumption of it. The
same does not encompass on law of facts in which the question of jurisdiction is not involved.

Qn21d What is the procedure for commencement of revision of revision?

Provided under sec. 83 of the CPA, the procedure for revision is informal whereby the High court
may call for records of any case which has been determined under this act by magistrate court.
The records are called for in an informal way whereby the registrar or relevant court officer writes
to the magistrate in charge of the records to be brought for revision and then the records are placed
before the judge for perusal.
Qn.22 what are the conditions that must be satisfied by the party in order to be granted a
temporary injunction.

Temporary injunction is a court order prohibiting an action by the party to a law suit until there has
been a trial or further court action.

The purpose of a temporary injunction is to maintain a status quo and prevent impair able
damages or preserve the subject matter of litigation until the trial is over.

Temporary injunction is a legal and equitable remedy.

The conditions that must be taken into account include:

• The aim of application is to maintain the status-quo until the determination of the whole
dispute
• The application for an order must ensure that there is a premacie case with probability of
success
• The application for an order must ensure that the applicant will suffer irreparable injuries
which cannot be adequately addressed.
• The application for an order must ensure that the balance of convenience is its favour.

END