Civil Litigation Procedure

Stages of Civil Litigation

• There are five stages in civil litigation: from issuing a writ of summons to application for direction, trial and judgment, execution, appeal from Circuit Court to the Court of Appeal, and appeal from the Court of Appeal to the Supreme Court.
• Only the first and third stages will be discussed here.

Stage One: Pre-trial Hearings

• The High Court (Civil Procedure) Rules, 2004 (CI 47) regulate the procedure for civil litigation.
• The rules apply to the High Court and Circuit Court, mutatis mutandis, except that no proceedings shall be nullified if they are not applied.

Forms of Proceedings

• Civil proceedings can be initiated by a writ of summons, petition, or originating notice of motion.
• The writ of summons is the basic document for initiating civil proceedings.

The Writ of Summons

• The writ of summons announces to the defendant that a legal proceeding has been started against them and a file has been opened in the file records.
• The writ announces the date the defendant has to appear in court or respond in writing to the court or opposing party or parties.
• A statement of claim is required to be filed by the plaintiff who files a writ of summons.
• The writ must contain an endorsement stating the nature of the claim or relief or remedy sought.
• The writ is valid for one year and must be served within one year.
• A good reason must be shown for delay of service before the court will exercise its remedy of extending the writ.

Service of Writ

• A writ must be served personally on the opposing party to satisfy the audi alteram partem principle.
• Exceptions to personal service include:
  • Defendant is a lunatic or infant or is detained
  • Defendant is a company or corporation, partnership firm, or government department
  • Maritime actions
  • Actions for the recovery of land where no person appears to be in possession
  • Where action is against a stool or a skin or head of family
• If the writ cannot be served after three or more attempts, the court may make an order for substituted service.
• Substituted service may take the form of serving the defendant through a registered letter, posting the writ on a notice board, or advertising in the gazette or a national newspaper.

Service of Writ Outside Jurisdiction

• An ex parte application supported by an affidavit may be made for service of writ outside jurisdiction.
• Leave may be granted for service outside jurisdiction if an act, deed, will, or contract affecting immovable property within the jurisdiction is sought to be construed, rectified, or set aside or enforced in the action.
• Service is done through the Judicial Secretary, Ministry of Foreign Affairs, Embassies, or Representative of the country.
• Proof of service is obtained through the same channel.

Entry of Appearance

• The defendant is required to enter appearance within 8 days after service by filing a Notice of Appearance.