Litigation in Kenya refers to the process of resolving disputes through the court system. It involves bringing a legal action before a court of law to seek relief or remedy for a particular issue. Litigation can take various forms, including civil litigation, criminal litigation, commercial litigation, and constitutional litigation. It is governed by various laws and regulations, including the Kenyan Constitution, statutes, and the Rules of Court.
Here is an A-Z guide to litigation in Kenya, covering some of the most important rules, processes, and procedures.
A – Action: An action refers to a legal proceeding initiated by a party seeking relief from a court. In Kenya, an action can be commenced by filing a plaint or petition depending on the court.
B – Burden of proof: In civil cases, the burden of proof is on the party bringing the action to prove their case on a balance of probabilities. In criminal cases, the prosecution has the burden of proof to prove their case beyond a reasonable doubt.
C – Court fees: Court fees are the fees payable to the court for filing and processing various documents. Court fees vary depending on the type of case and the court in which it is filed.
D – Discovery: Discovery refers to the process of obtaining and exchanging information between parties prior to trial. It is governed by the Civil Procedure Rules.
E – Evidence: Evidence is any material presented to the court in support of a party’s case. Evidence can be in the form of documents, witness testimony, or physical objects.
F – Forum shopping: Forum shopping refers to the practice of choosing a court or jurisdiction that is perceived to be more favorable to one’s case. It is discouraged in Kenya.
G – Garnishee order: A garnishee order is a court order directing a third party (usually an employer or bank) to pay money owed to a judgment debtor to a judgment creditor.
H – Hearing: A hearing is a court proceeding in which evidence is presented and arguments are made before a judge or magistrate.
I – Interlocutory application: An interlocutory application is an application made during the course of a trial or other legal proceeding, usually seeking an interim order or direction.
J – Judgment: A judgment is the final decision of a court in a case. It may be a final judgment disposing of the entire case, or an interlocutory judgment disposing of a particular issue.
K – Kenyan Constitution: The Kenyan Constitution is the supreme law of Kenya and provides the framework for the country’s legal system.
L – Locus Standi: Locus standi is a Latin term meaning the right or capacity to bring an action in court. It refers to the legal standing of a party to bring a case.
M – Mediation: Mediation is a form of alternative dispute resolution in which a neutral third party (the mediator) assists the parties in reaching a settlement.
N – Notice of motion: A notice of motion is a document used to commence proceedings in certain types of cases, such as applications for judicial review or for interim injunctions.
O – Order: An order is a formal written decision of a court or tribunal, directing a party to do or refrain from doing something.
P – Pleadings: Pleadings are the documents filed by parties in a case setting out their claims, defenses, and counterclaims.
Q – Quashing: Quashing refers to the setting aside of a decision or order by a court, usually on the grounds of procedural irregularity, illegality or irrationality.
R – Rules of Court: The Rules of Court are the procedural rules governing court proceedings in Kenya.
S – Service: Service refers to the process of delivering documents to the other parties in a case.
T – Trial: A trial is a court proceeding in which evidence is presented and arguments are made before a judge or magistrate to determine the issues in dispute.
U – Undertaking: An undertaking is a promise by a party to the court to do or refrain from doing something, usually given in exchange for a court order.
V – Vexatious litigant: A vexatious litigant is a person who persistently and without reasonable grounds brings legal proceedings, causing unnecessary expense and inconvenience to the other parties involved. In Kenya, the court may order that a person be declared a vexatious litigant and prevent them from bringing any further legal proceedings without leave of the court.
W – Writ of attachment: A writ of attachment is a court order authorizing the seizure of property belonging to a judgment debtor in order to satisfy a judgment debt.
X – N/A
Y – Youthful offender: A youthful offender is a person who is under the age of 18 and has been charged with a criminal offense. In Kenya, the Children Act provides for the handling of cases involving youthful offenders.
Z – Zoning: Zoning refers to the regulation of land use in a particular area. In Kenya, zoning regulations are usually enacted by county governments and are enforced through the courts.
It is important to note that litigation is a complex process, and this guide should not be considered comprehensive. It is always advisable to seek the advice of a qualified lawyer for guidance on specific legal issues.