Class G Civil Litigation Makeup 27 Mar 2026

Main ideas / concepts covered

Technical setup and pacing

• The session begins late due to technical challenges with sharing slides.
• The instructor decides to continue without slides when necessary, asking participants to zoom and/or present properly.
• Timing is adjusted:
  • The session runs from 5 to 8 because a prior week included a national holiday.
  • Next Friday is Good Friday, so that class will not run.

Class protocols (court-style virtual conduct)

• Camera: always off unless the instructor asks you to switch it on or you’re addressing the class.
• Microphone: muted unless you’re addressing.
• No voice without camera: the instructor explains that if they can’t see your face, they may not be able to hear you; you may be required to turn your camera on before responding.
• Participation: raise your hand; use emojis to express yourself.
• Starting time rule: the instructor will proceed if participants are not present by the usual start time.
• Dress code: “court/professional” appearance (no t-shirts or unusual clothing).
• Questions and disagreements:
  • no wrong questions;
  • if unclear, stop and ask;
  • if disagreeing, say so.
• If asked a question and unsure: silence is acceptable only when the instructor requests it.

Purpose of the unit

• The instructor frames the goal as producing advocates who can perform under pressure, not students who only memorize procedure.
• Focus is on courtroom readiness in virtual settings: confidence, clarity, pacing, and composure.

Four performance principles to internalize

1. Confidence
   • Pace your speech; chin up; feel “certain” rather than nervous.
2. No “fears”
   • Eliminate them; ensure every word “earns its place.”
3. Pace your speech
   • Slow down; use silence for effect.
4. Chin up / look at the camera
   • Treat the virtual space as a courtroom.

Bridge from last session

• Recap of overriding objectives and principles (e.g., section 1A, section 1B; Article 159 of the Constitution; sanctions for breach).
• Key next question after identifying jurisdiction, cause of action, limitation, and obligations:
  • “Who do you sue?” and “Who sues you?”
• Getting parties wrong can undo otherwise correct work.

Interactive scenario: transport accident

Hypothetical facts

• The client runs a transport company.
• A pedestrian is knocked down by a bus driven by a contractor (not an employee).
• The bus is registered to a finance company that leased it to the transport company.
• The pedestrian wants to sue: Who are the parties?

Student suggestions (examples)

• Pedestrian as plaintiff
• Finance company as defendant
• Contractor driver as defendant
• Transport company as defendant (or possibly an interested party)

Teaching point

• Answers may be “partly right” and “not completely right”—this is why the topic matters.
• For each party, students must be able to cite the statute supporting inclusion/exclusion.

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Methodology / detailed instruction list (substantive legal framework)

A. Definition: “Party to a suit”

A party to a suit is any person formally before the court in litigation, either:

• the one who initiates the case (plaintiff), or
• the one brought in to answer the case (defendant), including the concept of interested parties.

B. Primary statutory authority

• Order 1 of the Civil Procedure Rules is presented as the main statutory authority for the session’s party-joining rules.

C. Permissive joinder of plaintiffs (Order 1 rule 1) — how to read it

Core rule (as explained)

• All persons may be joined as plaintiffs in one suit if the right to relief:
  • arises from the same act / transaction, or
  • arises from a connected series of acts / transactions.

Three key “jumps out” from the rule

1. Relief must arise from the same act/transaction/connected series
   • “Series of transactions” can exist when acts are linked by time, purpose, or legal effect.
   • A “course of dealing” over months between the same parties can constitute a series.
   • Not allowed: manufacturing connection through “creative drafting.”
   • The link must be real and demonstrable on the pleadings.
2. Right to relief is alleged, not proved (at pleading stage)
   • At the plaint-drafting stage, it is alleged.
   • Proof happens later (e.g., at judgment).
3. Claims can be joined / several / in the alternative
   • Used to explain flexibility in pleading against multiple parties.

D. “In the alternative” (how it is used when joining parties)

Students are guided to interpret “in the alternative” as:

• suing A and B such that one is liable, and
• telling the court that the plaintiff is not yet sure which party’s liability applies.

Key framing:

• “Alternative joinder” is not uncertainty about facts.
• It is presented as precision in pleading—asking the court to determine liability among parties.

Transport example explanation

• If liability among contractor, transport company, and finance company is not clear (e.g., issues like vicarious liability and vehicle ownership/registration),
• the plaintiff may plead liability as either one party or another (in the alternative).

E. Why the topic matters (consequences of wrong parties)

The instructor lists four major consequences of getting parties wrong:

1. Wrong party → no cause of action
   • Claim fails on its face.
2. Limitation problem
   • If the correct defendant is added after limitation has run, the court may not save the claim.
   • Order 1 rule 10 is referenced as enabling adding parties, but limitation still matters.
3. Judgment binding problem / necessary parties
   • A judgment binds only parties before the court.
   • If a necessary party is omitted, the order may be ineffective.
4. Costs
   • Suing the wrong person may expose the claimant to an adverse costs order.
   • Courts are not sympathetic without a credible basis for including parties.

F. “Plaintiff” as the initiator (terminology)

The instructor distinguishes names based on the originating process:

• Plains → plaintiff
• Petitions → petitioner
• Originating summons → applicant
• Other applications (e.g., notice of motion / chamber summons) → applicant

Teaching emphasis:

• Terminology must match the pleading instrument; don’t write “petitioner” when drafting a plaint.

G. Three simultaneous requirements for a plaintiff (capacity + standing + cause of action)

1. Legal capacity
   • The plaintiff must be a person with legal capacity to sue:
     • natural persons (typically above 18),
     • juristic persons (companies, partnerships, LLPs, etc., as described),
     • government entities under the correct enabling framework,
     • representative capacity (acting through another person).
   • Minors lack capacity and must sue through a next friend (promised for later session).
2. Locus / standing (legal interest in the dispute)
   • Not every aggrieved person has standing.
   • Interest must be direct, proximate, and legally recognizable.
3. Cause of action
   • Must exist and must have accrued/crystallized:
     • breach requires breach to have occurred,
     • statutory remedies require the trigger event to have occurred.

H. Interactive clarification: can capacity + standing exist but no cause of action?

The instructor asks yes or no; students offer examples:

• Minor / next friend situations are raised (as part of discussion), though the specific focus is “cause of action” being missing.
• Statute of limitation passed: plaintiff has interest, but cannot maintain the claim because time has run.
• No valid written contract yet (or no valid contract basis), despite an alleged agreement.
• Premature filing before breach/default occurs.

I. “Premature suit” vs “jurisdiction”

A doctrinal correction is emphasized:

• Jurisdiction is conferred by Constitution/statute and does not “evaporate” just because the claim is weak/premature.
• A missing/premature cause of action may lead to the suit being struck out (procedural consequence), not a loss of jurisdiction.

J. Categories of plaintiffs in Kenyan civil litigation (as described)

The instructor outlines four categories:

1. Natural persons (above 18) suing in their own name.
2. Corporate bodies
   • Companies and corporate suing through authorized officers/directors.
   • Partnerships suing through partners (or firm/individual partners as described).
   • LLPs described as juristic persons.
   • Incorporated associations: ordinarily no separate legal personality; sue through officers.
   • Mention of enabling statutes that can confer capacity on particular classes (example referenced in a trade unions/labor relations context).
3. Government bodies
   • National government sued through the Attorney General (Government Proceedings Act framing).
   • County governments treated as body corporate with capacity to sue/be sued in their own name (County Governments Act framing).
4. Representative capacity
   • suing as administrator/executor/trustee/next friend or other representative roles.
   • The capacity must appear on the face of the pleadings (otherwise a problem).

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Speakers / sources featured (as named in subtitles)

Main speaker (instructor)

• David Onsar (referenced consistently as the teacher)

Other participants (students / discussants)

• Vera
• Mimo
• Douglas Mongoya
• Daniel (surname not consistently readable)
• Chibet Nelly
• Kawira
• Oipo Jima
• Mary Kahiga
• Marori Deborah Maria
• Kubo Kito
• Dickens
• Samuel Gonella
• Paul Jack Mooney
• Alvin Machoka
• Deakans / Deans (appears as “deakans deakans”)
• Gonella Samuel (appears again—likely the same person as Samuel Gonella)
• Gwi
• Alex (handle appears next to a raised hand)
• Onyang

Legal sources / case citations mentioned

• Order 1 of the Civil Procedure Rules
• Order 1 rule 10 (adding parties)
• Section 1A and Section 1B (overriding objectives)
• Article 159 of the Constitution
• Government Proceedings Act (Attorney General framing)
• County Governments Act (county government body corporate framing)
• Lois Wanji Romero and three others v John Migui (proposition about prematurity quoted)
• MV Lilioness (jurisdiction discussion referenced)