Civil Litigation Key Concepts

• Civil litigation involves taking instructions, obtaining a legal opinion, deciding if it is best to litigate, considering pre-litigation factors, and sending a demand letter.

Overview of Civil Litigation

• Litigation typically settles issues in courts and tribunals, where civil litigation is any litigation that isn't criminal.
• A party typically seeks favorable orders against another
• The defendant seeks to avoid being compelled to do something against their will, such as paying a debt or being restrained by an injunction
• The major difference between civil and criminal litigation is that civil litigation doesn't involve punishment and is more process-oriented
• A claimant has no obligation to litigate, even with a good case.
• A defendant has no obligation to defend, but faces bearing the potential burden of the orders sought.
• A defendant may voluntarily concede to the prayers sought by the claimant.
• Before final determination, a claimant can withdraw the suit, potentially subject to paying costs to the defendant.
• Court leave may be required for withdrawal
• Rights to litigate can be extinguished by the statute due to limitation of actions regarding torts and contracts.
• The Limitation of Actions Act Cap 22 governs limitations in Kenya
• Section 90 of the Employment Act No. 11 of 2007, applies to employment cases.

Advocate-Client Relationship

• An advocate-client relationship begins with establishing a retainer
• "Client" includes anyone who retains or employs an advocate on behalf of another, or in any other capacity, and who is liable to pay the advocate's costs, according to Section 2 of the Advocates Act.

Establishment of a Retainer

• Retainer is analogous with employment, engagement or instruction
• A retainer forms the basis of the advocate-client relationship; it doesn't require being in writing and can be implied by conduct
• Payment alone may not constitute a retainer
• An advocate was paid Kshs. 110,000/-, which the client disputed as payment for legal fees in Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] eKLR and the court of appeal held that this alone couldn't be relied upon to establish the relationship
• The advocate bears the burden to prove the existence of a retainer.
• In Nderitu & Partners Advocates V Mamuka Valuers (Management) Ltd [2006] eKLR, the court held that whoever issues instructions is liable to pay, regardless on whose behalf the instructions are given.
• Retainers should be put writing, the exact instruction and scope of work should be defined and at least a deposit should be paid

Client Interview

• A meeting with the client is often required after establishing a retainer
• The client interview is important to gain mutual understanding and confidence
• The quality of future relationships depends on the first interview
• Tips for client interviews include being relaxed, sincere & professional, managing the interview flow, listening actively and assuring confidentiality.
• Relevant client information, other parties involved, the legal subject, the client's goals, previous advice and the work by both lawyer & client should be gathered during the interview
• Interviews can be divided into 3 stages namely:
• Enabling the client to tell their story with minimal interruption.
• A more active role by the lawyer to fill any gaps, ambiguities by questioning the client.
• Providing advice or outlining a plan of action and ensuring the client's agreement.

Structure of Interview

• Greeting, seating, and introductions mark stage one
• The problem summary for review marks stage two
• Stating advice and plan to action with agreement, marks stage three

Legal Opinion

• Giving a legal opinion involves facts already established when taking instructions.
• It's essential to understand the law via research and identifying the subject & relevant areas of law.
• Sources of law include :
  • The Constitution of Kenya
  • The Laws of Kenya
  • Case law
  • Common law
  • Customary law
  • Commentaries by authoritative writers
• Drafting an opinion requires FIRAC (Facts, Issue, Rule, Application, Conclusion)
• The language needs may be simple, avoiding legal jargon, with minimal statutory and case citations.

Pre-Litigation Preliminary Considerations

• Preliminary pre-litigation considerations include:
  • Cause of action
  • Limitation of actions
  • Feasibility of a lawsuit
  • Ethical considerations both before and after filing suit.

Cause of Action

• A cause of action, as defined in DT Dobie & Co (K) Ltd V Muchina, [1982] KLR, is "an act on the part of the defendant causing the plaintiff's complaint."
• In Susan Rokih v Joyce Kandie & 6 others [2018] eKLR, a reasonable cause of action is defined as one with some chance of success, not one guaranteed to succeed.

Limitation of Actions

• The main statute is the Limitations of Actions Act
• Actions for torts are limited to 3 years
• An action to recover any penalty or forfeiture by virtue of a written law may not be brought after the end of two years from the date which the cause of action accrued
• Actions to recover land are according to section 7
• Actions to recover rent arrears are according to section 8
• Action to recover the property of a deceased person is according to section 21
• Extension of time section is according to section 22
• Limitation at section 27 (1) eg material damage claims Emmanuel Kidaho Ruhengeri v Sadry Dhala [2017] eKLR
• The Employment Act limits to three years
• Traditional judicial review is under Order 53 CPR
• Justus Ogada Agalo vs The Managing Director Kenya Railways Corporation (2016) eKLR relates to the interest in respect of a judgement.

Feasibility of a Lawsuit

• A lawsuit may not be practical, even if there is a time-barred cause of action.
• Litigation can be time & resource intensive, so it should be an advocate's accepted practice to see if being practiced
• Consider if damages were really suffered in, e.g., defamation suits

Feasibility Checklist

• Ensure the correct parties are involved, taking into consideration the treatment of persons of unsound mind and minors
• Identify the right court or tribunal per jurisdiction
• Determine the appropriate nature of proceedings and the approach to the court
• Ascertain is there a cause of action
• Ascertain if a limitation statute extinguishes the cause of action.

Ethical Considerations Before Filing Suit

• LSK(Law Society of Kenya standards) Professional Practice and Ethical Conduct codes apply in Kenya
• An Advocate is charged to be competent, diligent in the law, or face professional misconduct
• Professional misconduct that can have implications include :
  • Undercutting or unjustifiably high fees
  • Conflict of interest
  • Inappropriate use of social media
• Advocates shall maintain the highest standards of honesty and integrity, by also safeguarding client confidentiality
• The Advocate shall discharge client duty during court and non-contentious matters through fair and honorable means.

Ethical Considerations After Filing Suit

• Misappropriating client funds or converting them without express authority is professional misconduct.
• Maintain honesty and integrity with parties involved, as well as the public.

Demand Letter

• Functions as a letter before action or a notice of intention to sue that is the starting point of litigation.
• It tells the potential defendant and asks for a chance to resolve the issue and save costs.
• Issuing a demand letter may not be necessary if it prejudices your case, such as if the potential defendant may destroy evidence, per Stanley Kaunga Nkarichia v Meru Teachers College & another [2016] eKLR

Demand Letter Format

• Should contain the writer's letterhead, file number, recipient's details, the date, and mode of delivery
• It should contain a salutation, subject line, body, and a signing off
• It should be addressed to the potential defendant, or their lawyer
• It should be clear on the subject, such as, "Eg Demand for Kshs. 2,000,000/- owed to Mapesa Mingi.".
• The mandate as the client's Advocate should be established
• Next, write accurate facts that are brief and relevant
• Set compliance timelines and note the consequences of noncompliance
• It should not be rude, should be firm, grammatical punctuation marks should be checked.

Response to Demand Letter

• It should follow the same basic outline.
• The basis of the response needs to be established in the first paragraph
• State reasons for complying with demand and negotiating time to pay
• Refusal to deny everything and/or a "Without Prejudice" note, can be included
• Millicent Wambui v. Nairobi Botanica Gardening Limited [2013] eKLR covers these letters

Explore the core concepts of civil litigation including dispute resolution, preliminary demands, advocate engagement, and limitation of actions. Understand the roles of plaintiffs and defendants, the impact of legal precedents, and ethical considerations in legal practice.