Key Considerations Before Instituting a Civil Suit in Kenya

Filing a civil suit in Kenya is a legal process that requires careful evaluation of several factors before proceeding. Instituting a suit without proper due diligence can result in wasted resources, delays, or even an unsuccessful claim. It is crucial to assess the case’s viability based on Kenyan laws, procedural requirements, and the likelihood of a favorable outcome.

This article explores the essential factors to consider before instituting a civil claim in Kenya, referencing relevant statutes and case law.

1. Merits of the Case

The first and most critical factor to consider is whether the case has legal merit. This involves assessing whether the claim is supported by facts and law. Under Kenyan law, a plaintiff must demonstrate that they have a valid cause of action, which is a set of facts that give rise to a legal right to sue.

• Cause of Action: A cause of action arises when there is a breach of a legal right or duty. For instance, in contract law, a breach of contract gives rise to a cause of action. In tort law, negligence or defamation may form the basis of a claim. The plaintiff must prove that the defendant’s actions or omissions caused harm or loss. The Civil Procedure Act (Cap. 21) and various substantive laws, such as the Law of Contract Act (Cap. 23) and the Employment Act (No. 11 of 2007), provide legal grounds for different types of claims.
• Burden of Proof: In civil cases, the burden of proof lies on the plaintiff, who must prove their case on a balance of probabilities. This means that the court must be satisfied that it is more likely than not that the plaintiff’s claims are true. This standard is lower than the “beyond reasonable doubt” standard in criminal cases but still requires substantial evidence.

If a claim lacks a legal foundation, it is likely to be struck out as frivolous.

2. Legal Standing and Capacity (Locus Standi)

Before filing a civil suit, it is crucial to determine whether the plaintiff has the legal standing and capacity to sue. According to the Civil Procedure Act (Cap. 21), a person must have sufficient interest in the matter to bring a claim. Legal capacity refers to the ability of a person to enter into legal relations and be subject to legal obligations. Minors (persons under the age of 18 years) and people of unsound mind are deemed to lack the requisite legal capacity.  Without locus standi, a case may be dismissed at the preliminary stage. Indeed, Courts have repeatedly stated that a litigant must demonstrate a direct interest in the matter unless bringing a claim in the public interest.

Legal Framework on Locus Standi in Kenya

• Article 22(1) of the Constitution of Kenya, 2010 gives individuals the right to institute proceedings when their rights or fundamental freedoms have been violated or are under threat.
• Article 258 of the Constitution expands this right, allowing any person to institute court proceedings in the public interest, even if they are not directly affected.

However, outside constitutional petitions and public interest litigation, a claimant must show a direct interest in the subject matter of the dispute.

Instances Where Locus Standi May Be an Issue

1. Personal Representatives in Estate Matters – Under the Law of Succession Act (Cap. 160), only a legally appointed administrator or executor has the capacity to sue on behalf of a deceased person’s estate.
2. Company Litigation – Under the Companies Act 2015, a company is a separate legal entity and must sue or be sued in its own name. Shareholders generally cannot sue on behalf of the company unless under derivative action (where directors have acted unlawfully).
3. Land Disputes – A person must have a legally recognized interest in land to sue. Under the Land Act, of 2012, a tenant, licensee, or person with beneficial interest may have standing, but a third party without legal rights cannot claim ownership.
4. Contractual Claims – Only parties to a contract (or those with a legally recognized interest) can sue for breach. This is governed by the principle of privity of contract, which states that only parties to a contract can enforce its terms.

3. Jurisdiction

Jurisdiction is the authority of a court to hear and decide a case. It is essential to file the suit in the appropriate court that has jurisdiction over the subject matter and the parties involved. The Civil Procedure Act outlines the jurisdiction of various courts in Kenya. For instance, the High Court has unlimited original jurisdiction in civil matters, while the Magistrates’ Courts have limited jurisdiction based on the pecuniary/ value of the claim. The Magistrates’ Courts Act, 2015 defines the pecuniary limits of Magistrates’ Courts:

• Chief Magistrate’s Court – Ksh. 20 million
• Senior Principal Magistrate’s Court – Ksh. 15 million
• Principal Magistrate’s Court – Ksh. 10 million
• Senior Resident Magistrate’s Court – Ksh. 7 million
• Resident Magistrate’s Court – Ksh. 5 million

The Employment and Labour Relations Court Act (No. 20 of 2011) establishes the Employment and Labour Relations Court (ELRC), which has exclusive original and appellate jurisdiction over employment and labour-related disputes.

The Environment and Land Court Act (No. 19 of 2011) establishes the Environment and Land Court (ELC). The Court have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution relating to environment and land.

The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR affirmed that jurisdiction is granted by the law, from the Constitution on the Statute, and cannot be conferred by the parties’ consent or Courts.

4. Limitation Periods

Different types of claims must be filed within specified time limits, as provided under the Limitation of Actions Act (Cap. 22). If a claim is filed outside the limitation period, it may be dismissed unless an extension is granted in exceptional circumstances.

Key limitation periods include:

• Contractual claims – 6 years from the date of the breach
• Tort claims (e.g., negligence, defamation, trespass) – 3 years from the date the cause of action arose.
• Personal injury claims – 3 years from the date of the accident
• Land claims – 12 years from the date the right of action accrued
• Recovery of arrears of rent – 6 years from the date the rent fell due.

Ensuring the claim is filed within the prescribed limitation period is crucial to avoid dismissal.

5. Availability of Alternative Dispute Resolution (ADR) Mechanisms

The Constitution of Kenya, 2010 (Article 159(2)(c)) encourages the use of alternative dispute resolution (ADR), including mediation, arbitration, and reconciliation, to settle disputes outside the formal court system. The Arbitration Act 1995 provides a legal framework for arbitration proceedings.

Some contracts contain arbitration clauses that require disputes to be resolved through arbitration rather than litigation. In Nyutu Agrovet Limited v Airtel Networks Kenya Limited & Another [2019] eKLR, the Supreme Court upheld the finality of arbitration awards, emphasizing the importance of respecting arbitration agreements.

Before instituting a civil suit, parties should consider whether ADR mechanisms could provide a more efficient and cost-effective resolution.

6. Doctrine of Exhaustion

The doctrine of exhaustion is a fundamental principle in Kenyan law that requires parties to exhaust all available alternative dispute-resolution mechanisms before approaching the courts. This doctrine is particularly relevant in cases where a contract or governing law provides a specific mechanism for resolving disputes.

Section 51 of the Tax Procedures Act, 2015 establishes a clear dispute resolution mechanism for tax disputes, requiring taxpayers to exhaust administrative remedies before approaching the courts.

Tax disputes in Kenya provide a clear example of the doctrine of exhaustion in action. The law prescribes a specific process that taxpayers must follow before filing a case in court.

1. Complaint to the Commissioner: A taxpayer dissatisfied with a tax decision must first complain to the Commissioner of the Kenya Revenue Authority (KRA). The Commissioner is required to review the decision and provide a response within a specified period.
2. Appeal to the Tax Appeals Tribunal: If the taxpayer is dissatisfied with the Commissioner’s decision, they can appeal to the Tax Appeals Tribunal. The Tribunal is an independent body established under the Tax Appeals Tribunal Act, 2013, to hear and determine tax disputes.
3. Appeal to the High Court: If either party is dissatisfied with the decision of the Tax Appeals Tribunal, they can appeal to the High Court. The High Court’s decision can further be appealed to the Court of Appeal and, ultimately, the Supreme Court.

The doctrine of exhaustion also applies to contractual disputes where the parties have agreed to a specific dispute resolution mechanism. For example, many contracts include clauses requiring parties to resolve disputes through negotiation, mediation, or arbitration before approaching the courts.

• Arbitration Clauses: Section 10 of the Arbitration Act, CAP 49 provides that a court shall refer parties to arbitration if there is a valid arbitration agreement unless the agreement is null and void, inoperative, or incapable of being performed.
• Anne Mumbi Hinga v. Victoria Njoki Gathara[2009] eKLR: The court of appeal held that where parties have agreed to resolve disputes through arbitration, they must exhaust this process before seeking judicial intervention. The court emphasized that arbitration clauses are binding and enforceable.

7. Strength of Evidence

A claim must be supported by credible evidence, including documentary proof, witness testimony, and expert reports where necessary. The Evidence Act (Cap. 80) sets out the rules on admissibility and burden of proof.

Under Section 107 of the Evidence Act, the burden of proof lies on the party making the claim. Plaintiffs must gather all relevant documents, witness statements, and other forms of evidence to support their claim. Before filing a suit, claimants should gather and organize all necessary evidence to build a strong case.

8. Costs and Fees

Filing a civil suit involves various costs, including court fees (set by the Judiciary Fees Schedule), legal fees, and other incidental expenses. It is important to assess whether the potential benefits of the suit outweigh the costs involved. The Civil Procedure Act provides guidelines on the assessment and award of costs. Under Section 27 of the Civil Procedure Act, costs are awarded at the discretion of the court, meaning that a losing party may be required to pay the other party’s legal costs.

9. Remedies Sought

A party must consider whether the remedies they seek are available under Kenyan law. Remedies in civil suits may include:

• Damages (compensatory, punitive, nominal, or special)
• Injunctions (temporary or permanent)
• Specific performance (forcing a party to fulfil a contractual obligation)
• Declaratory orders (confirming legal rights or status)

In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the court established the principles for granting an injunction, emphasizing the need to demonstrate a prima facie case, risk of irreparable harm, and balance of convenience.

If the remedies sought are not available or practical, litigation may not be the best option.

10. Likelihood of Enforcement of Judgment

Even if a court rules in favor of a claimant, enforcement of a judgment can be challenging if the defendant lacks assets or refuses to comply. The Civil Procedure Act provides mechanisms such as:

• Attachment of property
• Garnishee orders (directing third parties, such as banks, to pay debts)
• Committal for contempt of court

Before filing a suit, a claimant should assess whether the defendant has the means to satisfy a judgment.

11. Impact on Relationships

 Litigation can strain relationships, especially in cases involving family members, business partners, or close associates. It is important to consider the potential impact on relationships and explore whether the dispute can be resolved amicably without resorting to court action.

12. Legal Representation

The quality of legal representation can significantly influence the outcome of a case. It is advisable to engage a competent and experienced advocate who is well-versed in the relevant area of law.

Conclusion

Before instituting a civil suit in Kenya, it is essential to evaluate the legal basis of the claim, the court’s jurisdiction, limitation periods, ADR options, the strength of evidence, financial costs, available remedies, and the likelihood of enforcing a judgment.

A well-informed decision will save time and resources and improve the chances of a successful outcome. Seeking legal advice from qualified advocates can help ensure that all these factors are properly considered before proceeding with litigation.

For further guidance, feel free to contact Njaga & Co. Advocates for professional legal assistance.

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