KEITH BUSINGYE LAW GUIDE;Civil Procedure Guiding Questions and Answers.

1.0 Keith Busingye Law.

2.0 Organization and hierarchy of courts in Uganda

All courts derive their power from the constitution-Art.129

Ø  Article 129 provides for establishment of courts of judicature which consist of:

a)      The supreme court of Uganda

b)      The court of Appeal

c)      The High court

d)     Such subordinate courts as parliament may by law prescribe

Ø  Under the subordinate category are:

a)      the magistrate courts established under section 3 and 4 of the Magistrates Courts Act Cap 16 which include,

a)      Chief Magistrate

b)      Magistrate Grade I

c)      Magistrate Grade II

b)      the local council courts established by the local council courts Act 13 of 2006

The court Martial and tribunals fall outside the normal hierarchy of courts

2.0.1        Jurisdiction

i)                    Art 29(2) establishes the Supreme Court, the court of appeal and the high court as courts of record

ii)                  The High Court has unlimited jurisdiction in civil matters except in constitutional matters where Art.137 the constitutional court is established specifically to address questions as to interpretation of the constitution.

iii)                The Magistrate courts (Amendment)Act 2007 prescribes the pecuniary jurisdiction of magistrates courts:

·        the chief magistrate handles civil matters whose jurisdiction does not exceed 50

·        25 million for Grade 1

2.1 COMMENCEMENT OF PROCEEDINGS

     Section 19 of the Civil Procedure Act provides that every suit shall be instituted in a manner prescribed by the rules. High Court suits may be commenced by any of the following originating process:

a) Ordinary suit/plaint

b) Originating Summons

c) Notice of Motion

d) Petition

e) Chamber Summons

2.1.1 Ordinary Suit/Plaint

    This is the usual method of commencement where there is a substantial dispute as to the facts.

Ø  Every plaint shall contain the following particulars;

a) the name of the courting which the suit is brought

b)the name, description and place of residence of the plaintiff and an address for service

c)      the name, description and place of residence of the defendant

d)     if the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect

e)      the facts constituting a cause of action and when it arose

f)       the facts showing that the court has jurisdiction

g)      the relief which the plaintiff claims

h)      where the plaintiff allowed a setoff or relinquished a portion of his claim, the amount so allowed or relinquished

i)        a statement of the value of the subject matter of the suit so far as the case admits

2.1.2 Originating Summons

   Under this procedure, a string of questions are usually presented to court for determination. This is provided for under O.37.

Ø  The main advantage of originating summons is that they are speedier than action by way of plaint. In this case;

                    i.  There are no pleadings

                  ii.  There are usually no witnesses

                iii.  Evidence is given on affidavit

                iv.  Normally there are no interlocutory applications such as discovery

2.1.3 Notice of Motion/ Chamber Summons

       This procedure relates to interlocutory applications.

Ø  Applications made by notice of motion include:

a)      Application for judicial review

b)      Application for habeas corpus

c)      For redress of breach of fundamental Human Rights under the Constitution

Ø  The general rule is that where a statute or legislation provides for an application to be made to court but does not specify the form in which it is to be made and the rules do not expressly provide for any special procedure, the application may usually be made by notice of motion. This provided under O.52 r1.

Ø  The major distinction between notice of motion and chamber summons is: 

j)        chamber summons is issued by the authority of court but notice of motion is usually brought by a party seeking some form of relief or remedy from court.

ii)                 chamber summons are heard in chambers while notice of motion will    usually be heard in open court

2.1.4 Petition

    This is the method by which proceedings are commenced as prescribed by statute, statutory instrument or rules. This provided for under O.r3

Ø  Examples of the most common types of petitions include:

a)      Those related to company matters

b)      Matrimonial proceedings

c)      Constitutional matters

d)     Election challenges

2.2 FILING OF COURT PROCESS

      In every High Court jurisdiction or magisterial area, there must be a registry in which the person who wishes to file a case can file the relevant court papers.

2.2.1 Registry

    This is the administrative center for the control of all documents and information required by court for the operation of its documents and information required by court for the operation of its work.

Ø  The main duties of the registry staff are as follows;

ii)               Receive all documents

iii)             Maintain records

iv)             Dispatch and avail information whenever it is needed

v)               Maintain the record through the file cycle of the case

vi)             Prepare under the direction of the registrar cause lists for the session

vii)           Serve summons and notices to litigants

viii)         Monitor the movement of the files allocated to a judge or magistrate

Ø  The filing in the High Court is not so much different from the filing in the Magistrate court. Under O.48 r1 it provides that every suit in the High Court may be instituted at the central office of that court.

Ø  The High Court has five registries where cases are filed depending on the subject matter, these are:

1)      Commercial Division Registry

2)      Civil Division Registry

3)      Family Division Registry

4)      Land Division Registry

5)      Criminal Registry

2.2.2        Fixing cases for hearing

Ø  The practice is that parties to the suit or their advocates should apply dates for hearing their case. This is usually done by taking hearing notices and asking for a date from court

Ø  Alternatively, any party may write to the Registrar (Deputy) requesting for a date, which is later presented to a judge.

2.2.3        Payment of court fees

    Every document filed in court in form of pleading attracts a payment of fees. The amount payable as court fee is determined from the value of the subject matter in case of a plaint and for other documents a fixed fee is charged.

2.3      ISSUE AND SERVICE OF SUMMONS

    Under O.5 r1(1), it is provided that when a suit has been duly instituted, summons may be issued to the defendant:

a)      ordering him to file a defence

b)      ordering him to answer the claim on the day to be there in specified

Ø  O.8 r1(2) provides that when  one is served with summons, he or she must file a defence within fifteen days

Ø  The purpose of summons is to notify the defendant that a suit has been filed, to require him or her to file a defence and also notify the defendant of the consequences of failure to do so.

Ø  O.5 r2, the summons must be accompanied by a copy of the plaint, a summery of evidence, list of witnesses, list of documents and list of authorities.

2.3.1 Service of Summons

Ø  It is the responsibility of each party to prepare, produce and serve his/her pleadings upon the opposite party

Ø  O.5 r10 provides for the fundamental rule of service of summons which is that, service of summons must be personal

Ø  In ordinary pleadings, a party who is dragged to court is issued with summons which is an official order requiring a person to attend court either to answer to a charge or to give evidence

2.3.1.1 Mode of Service of Summons

Ø  O.5 r8 deals with the mode of service, it is by tendering or delivering a duplicate duly signed by a judge or appointed officer and sealed by the court.

Ø  High Court summons are usually signed by a Deputy Registrar or Registrar and in Magistrates courts, by the magistrate.

Ø  O.5 r7(1) deals with transmission of summons for service. The summons are either delivered to a person authorized by court to serve summons who is called a process server, or to an advocate or advocate’s clerk or by post.

Ø  O.5 r14, where  duplicate of the summons is directly delivered and tendered to the defendant personally or to an agent or other person on his or he behalf, they are required to endorse an acknowledgment of service on the original summons

Ø  O.5 r16 provides for the affidavit of service, that is, after the process server has served the summons, he or she is required to annex the affidavit of service.

2.3.1.2 Time of Service

     Service of summons and court process must comply with the time and day of service.

Ø  This is provided for under O. 51 r9, no service of pleadings, notice or summons, other than summons to file a defence can be effected on a Sunday. The same is prohibited on days like public holidays under O.51 r2.

Ø  O.51 r9(2), provides that service effected after the hour of six in the afternoon on any weekday except Saturday which is before the hour of one shall be deemed to have been effected on the following day, in respect to Saturday, it shall be Monday.

Ø  O.5 r16 provides for an affidavit of service that is, whenever summons has been served, the person who effected service must swear an affidavit of service. 

2.3.2 Service upon corporations

    The relevant provision under this is O.29.

Ø  What is meant by corporations is any legal entity not being a natural person and being a creature of statute or incorporation under the Companies Act.

Ø  Service on a corporation may be in the following ways:

a)      On the secretary, or on any director or other principal office of the corporation

b)      By leaving it or sending it by post addressed to the corporation

2.3.2        Service upon a partnership

Ø  A partnership is a special legal creature, service upon it is provided for under O.30 r3, which provides for the different ways it can be effected:

a)      upon any one or more of the partners

b)      at the principal place at which the partnership business is carried on within Uganda upon any person having, at the time of service, the control or management of the partnership business

c)      as court may order

Ø  Under O.30 r3(2), it provides that service shall be deemed good service upon the firm so sued whether all or any of the partners are within or without Uganda.

Ø  An exception to this is where the partnership has been dissolved  to the knowledge of the plaintiff before the institution of the suit, in this case service shall be served upon every person in Uganda whom it is sought to make liable

2.3.3        Service upon counsel

Ø  Under O.3 r4, provides that any process served on an advocate shall be presumed to be duly communicated and made known to the party whom the advocate represents

Ø  Such service shall, unless the court otherwise directs be as effectual for all purposes as if the process had been given to or served on the party in person.

2.3.4        Service on Government

Ø  All documents required to be served on the Government for purpose of or in connection with civil proceedings shall be served on the Attorney General.

(Article 250(2) of the Constitution, Section 11 of Government Proceedings Act)

Ø  Service on the Attorney General shall be effected by delivering or sending the summons to the Attorney General’s Chambers and shall not be complete until there is acknowledgment of service.

(Rule 5 Civil Procedure (Government Proceedings) Rules

Ø  The time that is prescribed for the Government to file a defence is thirty days

(Rule 11 Civil Procedure (Government Proceedings) Rules

Ø  Service on a Member of Parliament can be effected n the same manner an ordinary person is served in civil matters as opposed to criminal matters

2.3.5        Substituted Service

Ø  The general rule is that where the court is satisfied for any reason that summons cannot be served as the ordinary way, the court shall order substituted service in a manner it deems fit.

Ø  Such service can be in a manner as follows;

§  advertisement in newspapers

§  affixing a copy in a conspicuous place in court or part of his house or residence

Ø  The O.5 r18 provides for substituted service as follows;

1)      where court is satisfied that the summons can not be served in the ordinary way

2)      substituted service shall be as effectual as if it had been made on the defendant personally

3)      where court makes an order for substituted service, it shall fix time for the appearance of the defendant as the case may require

Ø  An application for substituted service is normally made by summons in chambers ex parte.

(O.5 r.32

Ø  The affidavit support of such application must include the following;

a)      state the date when the summons was issued,

b)      the occasion on which personal service was attempted

c)      the facts upon which inference of evasion of service are based

d)     the believed address of the defendant

e)      the fact that substituted service is the best method

Ø  After an order is made and complied with, service is deemed to be effective as if it were done personally on the defendant.

(O.5 r18(2))

2.3.6 Service on a Special Category of Defendants

 This includes a number of categories as discussed below

2.3.6.1 Service on defendants in prison

Ø  O.5 r19 provides that in case of such defendant, service shall be delivered or sent by post or otherwise to the officer in charge of the prison for service on the defendant

2.3.6.2 Service on pubic officer and soldier

Ø  O.5 r20(1) provides for the public officers whose summons shall be sent to the head of office in which the defendant is employed, together with  copy to be retained by the defendant

Ø  O.5 r20(2) where the defendant is a soldier, the court shall send the summons to his commanding officer, together with a copy to be retained by the defendant

Ø  The duty of the person to whom the summons is sent under these two rules is set out under O.5 r2;

1)      The person shall be bound to serve it if possible and return it under his signature with written acknowledgement of the defendant

2)      Where from any cause service is impossible, the summons shall be returned to the court with a full statement of the cause and the steps taken to procure service.

2.3.7        Service of summons outside the jurisdiction

Ø  This is provided for under O.5 r22 which provides that such service my be allowed whenever:

            

i)        the whole subject matter of the suit is immovable property situated within the   jurisdiction

ii)                 any act, deed, will, contract, obligation or liability affecting immovable property situate within the jurisdiction is sought to be construed

iii)               any relief is sought against any person domiciled or ordinarily resident within the jurisdiction

iv)               suit is founded on any breach within the jurisdiction

v)                 any injunction is sought to be done within the jurisdiction

vi)               the suit is for the administration of the personal estate of an deceased person who at the time of his death was domiciled within the jurisdiction

vii)             any person out of the jurisdiction is a necessary or proper party to a suit

viii)           the suit is founded on a tort committed within the jurisdiction

2.3.8        Expiry of Summons

Ø  Where summons are issued by court and the person who is supposed to serve fails to serve, within a specified date, such summons shall expire.

Ø  Summons once issued by court are valid for 21 days and they must be returned to court for renewal through an application to extend the time. ( O.5 r1(2))

Ø  There must be a good reason for the delay in service before court can grant renewal for such summons.

   2.4 PARTIES A SUIT

      A party to a suit may be a plaintiff, defendant, applicant or appellant, respondent among others depending on the type of proceedings.

Ø  Normally a party is a person who on the record of the court has commenced the proceedings or has been served with the summons or any other such application or order of court

2.4.1 Capacity to sue or be sued

    The determination of whether a person is capable of suing or be sued is governed by the substantive law.

Ø  While most natural persons may sue or be sued, limitation exists with regard to certain types of natural persons that may not have the capacity, for example:

o   Children

o   Incompetent persons

o   Aliens

o   Convicts

2.4.2 Suits by Minors

These are provided for under O.32

Ø  Minors cannot bring suits of their own accord until they attain age of majority which is 18 or 21 years depending on the jurisdiction

Ø  In such circumstances a minor sues by his or her next friend or defends by his or her guardian ad litem. (O.32 r1)

Ø  A next friend is an officer of the court appointed to look after the interests of an infant in the conduct of proceedings

Ø  A person appointed as next friend may be personally liable for costs if they are awarded against the plaintiff although he has the right of indemnity against the minor.

Ø  However, a guardian ad litem is personally liable for costs only where he has been guilty of negligence or misconduct

Ø  O.32 r8 provides that a next friend cannot retire without consent of the court and it is immaterial that all parties to the action have given their consent upon which they give security for costs incurred during their term of office.

Ø  O.32 r12 provides for the procedure to be followed by a minor plaintiff or applicant on attaining majority age.

2.4.3 Mentally incompetent persons

Ø  They include, idiots and lunatics in addition there is a general term of madness which denoted incapacity of the mind that is complete and permanent and all these are normally compounded under persons of ‘unsound mind’.

Ø  This is provided for under O.32 r15 and just like minors, they may commence their actions through a next friend or defend through a guardian ad litem.

Ø  Where a mentally incompetent person without a representative commences proceedings, an application should be made by a defendant to stay the proceedings until a next friend is appointed

2.4.4 Companies and Statutory persons as parties

Ø  This is generally governed by O.29

Ø  Any company incorporated by an Act of parliament may sue or be sued in its corporate name

Ø  It is usually advisable that before institution of an action involving a company, one must ascertain from the Registrar of companies or from the Act of incorporation the proper and correct name of the company

Ø  Where a company is in liquidation or in receivership, the liquidator/receiver may sue in the name of the company.

Ø  A corporation which has ceased to have any jurstic existence cannot sue or be sued

2.4.5 Government

Ø  All civil proceedings by the state are instituted and prosecuted in accordance with the rules of the respective court and the Government Proceedings Act.

Ø  Any person had the right to sue the Government subject to the Government Proceedings Act

Ø  Section 10 of the Government Proceedings Act provides that civil proceedings against the Government shall be instituted by or against the Attorney General

2.4.6 Representative Parties

These are provided for under O.31

2.4.6.1 Deceased Persons

Ø  A deceased person cannot commence or defend an action, in the case of an estate of a deceased person, administrators or executors become the proper parties.

Ø  O.31 r1 provides that the rules of court provide that the administrators or executors of the estate of a deceased person may sue or be sued on behalf of the estate without joining any of the beneficiaries

Ø  The administrator of an estate of a decease person is appointed by grant of letters of administration while the executor is named in a will and is appointed by court through grant of probate

Ø  O.31 r2 provides that where there is more than one administrator, all must be made parties.

2.4.6.2 Trustees

Ø  A trustee is a person engaged in administrative duties with regard to property entrusted to him for the benefit of others.

Ø  Trustees may be individuals or corporations who have been given power so to act and this may be under a will.

Ø  Where a person is appointed in a dual capacity of an executor and trustee, the estate of the deceased is vested in the executor first and after the fulfillment of his duties as an executor, he thereafter becomes a trustee.

2.4.6.3 Unincorporated Associations

Ø  An association consists of a number of persons voluntarily united together by a common interest in order to promote certain objectives for their mutual benefit.

Ø  Unincorporated associations may include the following;

i)                    clubs

ii)                  trade unions

iii)                employer associations/ general associations

Ø  An association or club that has not obtained corporate or quasi corporate status by statute has no legal existence apart from its members, it is not a legal entity, nor is it an association of persons carrying on business with a common view of making profits

Ø  An unincorporated association is not a legal entity capable of suing or being sued, any proceeding against it is a nullity and not mere irregularity which may be waived by filing the defence.

2.4.6.4 Partnerships

Ø  O.30 r1 provides that partnerships may sue or be sued in the firm’s name or alternatively in the names of the individual partners.

Ø  Whenever there is doubt about the membership of the partnership, it is then advisable to issue court process against such firm in its firm name.

Ø  With leave of court, the judgment of the court is generally enforceable against any other partner within the jurisdiction but a foreign partner may have to be sued individually

2.4.7 Joinder and Substitution of Parties

Ø  This is provided for under O.1 r1

Ø  Subject to the right of the court to order a separate trial for other procedures, the rules of court provide the following grounds for voluntary or mandatory joinder;

1)      Relief in respect of the same or a series of transactions

2)      Common question of fact or law

3)      Leave of court obtained

4)      Joint claims

5)      Joint and several liability

6)      Presence of person promotes administration of justice

7)      Person’s presence is necessary

8)      Doubt against when relief is sought

Ø  A person can be joined as a party in the proceedings by:

     

The defendant after proceeding with leave of court

By the plaintiff after proceeding with leave of court

By court on an application of any party or by intervener, or by court on its own motion

2.4.7.1 Joinder of defendants

Ø  The courts have laid the following general principles with regard to joinder of persons as defendants:

                                i.            Interest for the defendant in the relief, the defendant may, but must not be interested in all the relief sought

                              ii.            A dissolved company, a company that has ceased to exist cannot be sued as a defendant, but a company in liquidation or receivership can be sued

2.4.7.2 Joinder of Interveners

Ø  An intervener is one who on his own application and with leave of court is added to an action pending between others.

Ø  When added the intervener may have the status of a party to an action as a friend of court

Ø  An intervener is normally referred to as an amicus curie or a friend of court who is a person who calls to the attention of court some decision of law but who does not become party to the action

2.4.8 Third Party Proceedings

Ø  Under O.1 r14, third party proceedings is an action by the defendant for contribution or indemnity against a third person or co-defendant

Ø  The objects of third party procedure include;

1)      To prevent multiplicity of actions

2)      To prevent the same issue from being heard twice with a possibility of different results

3)      To have the issue between the defendant and third party resolved in the original action between the defendant and the third party

4)      To have the issue between the defendant and third party decided as soon as possible after the decision in the original action

2.4.8.1 Nature of Third Party Proceedings

Ø  This order applies only to cases where the defendant claims to be entitled to contribution or indemnity against a third party

Ø  A third party proceeding in effect is an independent action with a 3^rd party becoming a defendant.

Ø  Where the main action is settled, a third party proceeding may still continue

Ø  Under the rules of court, a third party is not strictly a defendant against the plaintiff in the original suit, but the rules generally provide that a third party may dispute the liability of the defendant on the original action to the plaintiff

2.4.8.2 Scope of Third Party Proceedings

Ø  A claim for contribution or indemnity may arise out of the following circumstances:

                                i.            An express or implied contract

                              ii.            From a relationship of the parties

                            iii.            Where the right to indemnity exists

                            iv.            When the relationship between the parties is such that either in law or in equity, there is an obligation upon one party to indemnify the other

Ø  The right to indemnity need not be for the claim in the main action, it may be for any separate or severable part in the plaintiff’s claim

2.4.8.3 Limitation on Third Party Proceedings

These may include the following;

1)      Factors in the original suit of 3^rd party proceedings must be related

2)      One cannot attach a 3^rd party claim for contribution or indemnity on to an independent or personal claim that has nothing to do with the original action.

3)      Similar claims, there need not be a similarity in the form of action of the main action and third party

4)      When an amount of claim is not ascertained

5)      Damage in third party claim need not be equivalent to the min action

6)      Cause of action against a third part, there must be a common question between the two actions.

7)      Establishing of liability of parties, the defendant liability to the plaintiff in the main action should be in such a way to be binding upon the third party

2.5 CAUSE OF ACTION

Ø  According to O 7,r1, a plaint must show a cause of action

Ø  In Al Hajj Nasser Ntege Sebagala v AG, a cause of action was defined as every fact which if traversed would be necessary for the plaintiff to prove in order o to support the right judgment of court

Ø  Under O6,R30 the court may strike out any pleading that does not disclose a cause of action

Ø  Under O7, r11 the plaint shall be rejected if it not disclose a cause of action

Ø  According to the case of Auto Garage v Motokov (1971)EA 341,the are 3 essentials to sustain a cause of action;

1.      That the plaintiff enjoyed the right

2.      that the right has been violated

3.      that the defendant is liable

Ø  In determining whether a party discloses a plaint discloses a cause of action, court must look at the plaint and its annextures and nowhere else. See Mikidad Kawesa v AG(1973) ULR 121

Ø  Under O2, r 4 CPR, a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant may jointly unite those causes of action in the same suit.

Ø  Where after consolidation of suits the value exceeds the jurisdiction of the court, such court should not proceed with the trial. See Kiramukutesa v Sebugwawo(1986)HCB1 

2.5.1 Principles of Joinder of causes of action

1. The plaintiff has the option of determining joinder
2. Where there are several causes of action, the court may order separate trials in respect of separate trials in respect of certain claims or order that the trial judge should determine which issues are to be tried by the judge
3. Joinder should not be permitted if the actions cannot be disposed off conveniently in one action or their joinder e be considered too oppressive

Ø  Different plaintiffs may have different causes of action against the same defendant

Ø  Different causes of action may arise out of different causes of action may arise out of the same fact that a party may sue or be sued in different capacities

Ø  The trend of modern jurisprudence is to have all issues between parties joined in one action to diminish  the cost of litigation

2.6 PLEADINGS

Ø  Section 2 of the Civil Procedure Act defines pleadings as, “ any petition or summons, and also includes the statements in writing of the claim or demand of any plaintiff, and of the defendant of any defendant to them, and the reply of the plaintiff to any defence or counter claim of a defence”

Ø  The usual pleadings in action include the following:

a)      Statement of claim

b)      A defence

c)      A reply to the defence

Ø  The plaintiff naturally begins with a plaint presented to court laying his or her claim on the plaint and the defendant put in his of her defence an answer

Ø  Pleadings should be conducted so as to evolve clearly defined issues, definite position of law and fact asserted by one party and denied by the other but which both agree to be the points on which they wish to have court decide in the suit

Ø  The advantages of exchanging pleadings are as follow:

1)     The parties get to know what exactly is in dispute

2)     Save expenses of procuring evidence

3)     Mode trial may be determined from the pleadings

4)     Pleadings help in the financial determination of the issues

Ø  The law compels each party to give his or her opponent a sufficient outline of the case

Ø  After the plaint, each party must do more than state his or her case but must deal with what is presented by the opponent

Ø  A party who wants to contest the opponent’s case must deal with the other party’s case in three ways:

a)      He or she can deny the whole or some of the essential part of the facts

b)      He or she may confess and avoid

c)      A demurrer, this is the pleading of a point of law

Ø  The cardinal rule of pleadings is contained in O.6 r1(1), that is every pleading shall contain a brief statement of the material facts on which the party pleading relies

Ø  There are two essentials of pleadings, that is:

a)      Pleadings should contain facts not law

b)      A party must only prove the material facts

Ø  The party must state his or her case, the plaintiff is not entitled to relief not pleaded in the pleadings and not proved at the trial

2.6.1 Particulars in Pleadings

Ø  The necessity for particulars is due to the need to have precise and concise pleadings

Ø  Particulars help to prevent surprise at the trial by informing the other party of the nature of the case he or she is likely to meet and defend

Ø  The requirement for particulars of pleadings is set out under O.6 r3

2.6.1.1 Further and Better Particulars

Ø  These are provided for under O.6 r4

Ø  This occurs where the other party feels that the opposite part’s pleadings lack the particulars required.

Ø  In such a situation, procedural law provides for methods of seeking clarity from that party.

Ø  This can be done through seeking further and better particulars, discovery of documents or the administration of interrogatories

Ø  Since a party can not amend the other party’s pleadings, he or she can ask for an alteration or clarification in the other party’s pleadings

Ø  Initially the unsatisfied party writes to the other requesting him to furnish him with material facts, failure to do so, the party may apply to court for an order requesting the opposite party to furnish further and better particulars

2.6.2 Departure from Proceedings

Ø  O.6 r7 provides that, no pleading shall raise any new ground of claim or contain any allegation of facts inconsistent with the previous pleadings of the party.

Ø   The rationale is to prevent surprise at trial

Ø  However, there are exceptions, that is, pleadings that are petitions or applications are exempted, and also a pleading can depart by way of amendment

2.6.3 Amendment of Pleadings

Ø  A party may find that his or her pleadings are not clear and may in such a case move court by way of amendment

Ø  Sometimes a need for amendment may arise from the other party adducing a new issue

Ø  The law provides for;

1)     Amendment with leave of court

2)     Amendment without leave of court

2.6.3.1 Amendment with leave of court

Ø  O.6 r19, provides that, the court may at any stage of the proceedings, allows either party to alter or amend his or her pleadings

Ø  The pleadings may be amended in a manner and on such terms as may be just

Ø  The amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties

2.6.3.2 Amendment without leave of court

Ø  The law allows both the plaintiff and the defendant to amend his or her pleadings without leave of court

Ø  O.6 r20 provides for the amendment without leave of court

Ø  O.6 r21 looks at amendment in case of a defendant who has a set up or counter claim

Ø  Apart from the cases specified as instances in which the parties can amend without leave, in all other cases, the parties must seek permission of the court

Ø  After the lapse of time within which pleadings can be amended, a party’s pleadings will be deemed to be closed and documents filed there after will be of no legal effect of consequences 

2.7 LIMITATION OF ACTIONS

A limitation period is a time limit during which actions are to be brought, and thereafter a potential plaintiff is barred from and may no long bring his of her action.

2.7.1 Basic principles of limitation

                     1.Cause of action

                   2.Computation of time. the determination of when time begins to run     depends upon the date on which the cause of action arose

                      3. Under S.30 of interpretation Act. Sundays and holidays are excluded

               4.For time to run there must be competent parties

·         The effect of an action which is statute barred is that once an action

 becomes statute barred, subsequent developments cant revive it.

2.7.2        Running of time and commencement of proceedings

1. Once an action has accrued, time begins to run provided there are competent parties 

2. A general rule, courts will disregard parts of the day in calculating the limitation period

2.7.3        Defences to limitation

Under O 7, R6 CPR, where the suit is instituted after the expiration of the limitation time, the plaint shall show grounds upon which exemption from the law is claimed

1.      Disability. Under S. 21 Limitation Act

Ø  Under S.1(3) CPA, one is deemed to be under disability when he or she is an infant or is unsound mind

Ø  A plaintiff who suffers from disability sues through a next friend. O 32, r2

Ø  A defendant under disability defends his or her suit through guardian ad litem. O32, r3 CPR

2.      Acknowledgement by the defendant. This under S. 22 Limitation Act 

3.      Part payment. It is provided for under S.22 Limitation Act . See Scilendra Overseas ltd v. the government of Sri Lanka(1977)1K.L.R

4.      Fraud. S 25  of the Limitation Act.

5.      Concealment. When the defendant acted dishonestly an unconscionably. See Shaw v Shaw(1954)2QB 429

6.      Mistake

7.      Negotiations. This does not stop time from running.

2.7.4        Limitation against the government and scheduled corporations

                                       

1.      Under section 3 of the Civil Procedure and Limitation(Misc. Provisions)Act, the limitation period against the government , a local authority or a scheduled corporation in tort actions is 2 years

2.      Limitation period for actions under contract against the government is 3 years.