Civil Litigation

Civil litigation is the process of resolving disputes between private parties — individuals, companies, and other entities — through the court system. Unlike criminal proceedings, which are brought by the state to punish offences against the public, civil proceedings are brought by one party against another to enforce a right, recover a loss, or obtain a remedy. In Kenya, civil litigation is governed by the Civil Procedure Act (Cap 21), the Civil Procedure Rules, 2010, and the Evidence Act (Cap 80), with proceedings conducted before the Small Claims Court, the Magistrates' Courts, and the High Court, depending on the value and nature of the claim.

This area covers the full range of civil disputes. Advocates handle breach of contract claims — where one party has failed to perform their obligations under a contract, and the other party seeks damages or specific performance. Advocates act in debt recovery proceedings — where a creditor seeks to recover an unpaid debt, together with interest and costs. Advocates handle property disputes — including disputes over ownership, possession, and boundaries. Advocates act in tort claims — including negligence, nuisance, trespass, defamation, and conversion.

The litigation process begins with pre-action correspondence. Advocates write to the opposing party, setting out the client's claim, the legal basis, and the remedy sought, and giving the opposing party an opportunity to respond. This stage is critical: it often leads to a negotiated settlement, and it establishes the record that will be before the court if proceedings become necessary. Advocates approach pre-action correspondence strategically — firm enough to convey seriousness, but constructive enough to preserve the possibility of settlement.

If proceedings are necessary, they prepare and file the pleadings — the plaint (which sets out the claim), the statement of defence (which sets out the response), and any counterclaims or third-party proceedings. Advocates handle interlocutory applications — applications made before the trial, such as applications for injunctions, security for costs, discovery of documents, and summary judgment. These applications can be decisive: an injunction can preserve the status quo pending trial, and summary judgment can dispose of a claim without the need for a full trial.

At trial, they present the client's case — examining witnesses, cross-examining the opposing party's witnesses, introducing documentary and real evidence, and making oral submissions to the court. The work also covers the management of expert evidence — the use of expert witnesses in areas such as valuation, accounting, engineering, and medicine — and in the conduct of trials that turn on complex technical or financial issues.

After judgment, they handle the enforcement of decrees — the process of converting a court judgment into actual recovery, through attachment and sale of the judgment debtor's property, garnishee orders against the debtor's bank accounts, and other execution mechanisms. Advocates also handle the assessment of costs and the taxation of bills of costs, ensuring that the client recovers the litigation costs to which they are entitled.

Throughout the process, they provide realistic, honest advice about the prospects of success, the likely costs, and the expected timeline. Advocates do not pursue hopeless cases, and they do not encourage clients to litigate when a negotiated settlement would serve them better. Advocates see litigation as a tool — sometimes the only tool — for achieving the client's commercial objectives, and they use it strategically and judiciously.