Video summary

Class G Civil Litigation Makeup 10 April 2026

Main summary

Key takeaways

Educational

Main ideas / lessons

1) Class recap: “Interested party” (3-part test)

The court uses a three-part test (based on the court’s inherent discretion) when deciding whether to allow someone to become an interested party in a case. The test is:

  • Direct legal right affected: Whether the person has a legal right that is directly affected by the outcome.
  • Useful information/position: Whether the person holds information or a position that would assist the court in determining the matter.
  • Aligned representation: Whether the person represents a class of persons whose interests align with one side of the dispute.

Note: The decision on participation scope is ultimately under the court’s inherent discretion.

2) Oral exam / practice technique (class guidance)

The instructor emphasizes:

  • Use the questions as an “oral test.”
  • Remember the difference between fail vs pass—mistakes affect your outcome, not the instructor’s.
  • Try speaking rather than waiting.
  • Don’t overthink: answer logically and from definitions.
  • Participation rules during class: if you want to answer, unmute and (ideally) turn on camera.

3) Civil Procedure distinctions: Order 1 rule 9 vs Order 1 rule 15

The class asked for the difference between:

  • Order 1 rule 9: relates to misjoinder and non-joinder
    • Misjoinder: a person is incorrectly included in the proceedings.
    • Non-joinder: a person who should be included is left out.
  • Order 1 rule 15: relates to notice to third and subsequent parties (not original parties, but later affected/included parties).

4) Remedies for misjoinder / non-joinder

Correction of wrong parties is done by amendment—seeking leave of court to amend/remove/add the correct party.

5) Interpleader: concept, purpose, and types

Scenario (bank holding disputed money)

  • A bank holds 4 million in a depositor’s account.
  • Two claimants (e.g., brother and spouse) both claim the money and threaten to sue the bank.
  • The bank has no personal interest in who wins; it wants to avoid being sued twice and has the court determine the rightful claimant.

Purpose of interpleader (stakeholder remedy)

A remedy for a person holding money/property with no personal claim, facing conflicting demands from two or more persons. The holder asks the court to determine who is entitled, then pays according to the court’s direction.

Types of interpleader in Kenya (as stated in the video)

  1. Stakeholder interpleader / originating interpleader

    • Used when the holder of the money/property is not a party to existing litigation.
    • The holder comes before being sued.
    • Application is made under Order 34 rule 1 by originating summons.
    • The holder seeks permission to:
      • deposit the money into court or provide security, and
      • have the competing claimants litigate their rights.

  2. Sheriff’s interpleader / execution interpleader

    • Used where property has been attached under a decree during execution.
    • A third party claims the attached property is theirs.
    • The sheriff cannot determine the claim, so the party seeks court directions under Order 34 within the context of execution proceedings by a non-judgment debtor.

6) Commencing interpleader proceedings (Order 34 rule 1)

How to commence interpleader:

  • Under Order 34 rule 1, the application is made by:
    • Originating summons if there is no pending suit, or
    • a summons in the suit if there is already a pending suit.

Correction made by the instructor: a chamber summons is a summons within a suit, so you should not use it when there is no pending suit.

7) Supporting affidavit vs verifying affidavit (and later affidavit practice)

The instructor taught the distinction as follows:

  • Supporting affidavit
    • Supports an application and provides evidence for the application.
  • Verifying affidavit
    • Verifies the contents of a pleading (commonly a plaint/petition) that it accompanies.

Petition practice references (“Mutunga rules”)

The instructor referred to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (“Mutunga rules”), including:

  • Rule 11: documents to be annexed
    • A petition may be supported by an affidavit, and documents should be annexed where relied upon.

Class lesson outcome: petition practice can reduce technical barriers (accessibility).

8) What affidavit to file after a replying affidavit

The class concluded the affidavit sequence:

  • Reply to a supporting affidavit → replying affidavit
  • Response after a replying affidavit → supplementary affidavit, but only with leave of the court

Instructor’s caution: don’t file an incorrect affidavit form—avoid filing a further “wrong” affidavit when responding to a replying affidavit. Use the correct supplementary affidavit (with leave).

Methodology / instructions (detailed bullet format)

A) If a person wants to become an “interested party” (3-part test)

  • Assess whether they have a legal right directly affected by the outcome.
  • Assess whether they hold information/position that assists the court.
  • Assess whether they represent a class of persons whose interests align with one side.
  • Note: participation is determined under the court’s inherent discretion.

B) If parties are incorrectly joined (misjoinder / non-joinder)

  • Misjoinder = wrongly included party.
  • Non-joinder = necessary party left out.
  • Remedy: apply for amendment and seek leave of court to correct the parties.
  • Practical consequence mentioned: if the wrong party already entered appearance/retained counsel, the court may consider costs.

C) How to commence stakeholder interpleader under Order 34 rule 1

  • Use Order 34.
  • If no suit exists:
    • File originating summons (with supporting documentation).
  • If a pending suit exists:
    • File a summons in the suit (not originating summons; not “chamber summons” as a substitute).
  • Ensure the application/summons:
    • identifies competing claimants,
    • describes disputed property/fund, and
    • is supported by a supporting affidavit.
  • Typical relief sought:
    • permission for the holder to deposit money into court or provide security, and
    • directions requiring claimants to litigate entitlement.

D) Affidavit sequence (as taught in the session)

  • Supporting affidavit supports the application/petition.
  • If a replying affidavit is served:
    • respond with a supplementary affidavit only with leave of court.
  • Do not file the wrong affidavit form (avoid using an improper “further affidavit” in response to a replying affidavit).

Speakers / sources featured

Speakers / participants

  • Unidentified instructor/professor
  • Joseph Muru
  • Titus Emojel
  • Deborah Maria
  • Titus Karibu
  • Vera
  • Mooney Jack / Mo
  • Daniel Kashm.
  • Felix Karibu
  • Bridget
  • John Karibu
  • Laurita Manga
  • Eugene Ghana
  • Kelly
  • Alvin Jenga
  • Aub
  • Apollo Karumba
  • Lucas Kivoy / Lucas Karibu
  • Robert Murangiri
  • Emojel
  • Maria
  • Titus (multiple references)

Sources (laws/rules explicitly referenced)

  • Civil Procedure Rules
    • Order 1 rule 9 (misjoinder / non-joinder)
    • Order 1 rule 15 (notice to third/subsequent parties)
    • Order 34 rule 1 (interpleader procedure: originating summons vs summons in suit)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules
    • “Mutunga rules”
    • Rule 11 (documents to be annexed to petition/supporting affidavit)
  • Order 14 (opposition to application in the High Court), including Order 14 rule 3 for when a supplementary affidavit may be filed with leave (as stated in the video)

Original video