NAME: NTHIGA BRIAN BUNDI

ADMISSION: 24ZAD109487

CIVIL PROCEDURE 1 CAT 2

Civil procedure I

Assignment 26th March 2025

Convener: Mr Washington Ombis

Instructions

Attempt all the questions

To be submitted in hard copy during the next lesson ( 2nd April 2025)

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QUESTIONS

1. Draft a sample pre – trial questionnaire with at least 15 checklists.(15 Marks)

PRE TRIAL QUESTIONARE (Order 11, rule 2)

QUESTION ANSWER

(TICK ONE)

1. Identify the relevant track for the case YES NO

2. Have you or your advocate made contact with the

other party of parties in these proceedings with a

view to settling the case or to narrow down the issues YES NO

3. Have given full disclosure of documents to the other party

or parties YES NO

4. If not within what period can disclosure be given? YES NO

5. Is there need for inspection of any documents or

copies thereof and is so how soon can you do the

inspection? YES NO

6. Is there need to serve interrogatories and if so have you

specified the necessary interrogatories. YES NO

7. If defendant, have you answered the interrogatories by

attaching the questionnaire and affidavit with the answer? YES NO

8. Have you filed and exchanged all witness ‘statements? YES NO

9. Have you identified any issues which require a

written report of an expert? YES NO

10. Have you agreed on a single expert to prepare joint report? YES NO

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11. If the answer to question 10 is in the negative do you

require directions relating to the payment of the

expert’s fee and expenses? YES NO

12. In which disciplines do you require an expert? YES NO

13. Have the experts agreed on their respective reports? If not

have they held without prejudice discussions in order to

narrow down the issues with a summary of the reasons for any

disagreements? YES NO

14. Have you filed and served an updated schedule of loss and

damage including future loss and if

defendant, have you filed and served a counter schedule YES NO

15. Have you filed this questionnaire together with the answer

including the experts’ joint statement of issues including

witness statements? YES NO

16. Have you considered whether oral evidence of any witness

can be dispensed with? YES NO

2. What is a Case Management Checklist? (5 Marks)

The court (and occasionally the parties) use a case management checklist to ensure that
all administrative and procedural obligations are met in a methodical manner prior to
trial. It often includes pleading confirmation, document disclosure dates, witness list
submissions, and pre-trial conferences or directions. By ensuring that procedural
conditions are met, the checklist speeds up the case, reducing delays and promoting court
efficiency.

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3. What is the Purpose of a Case Management Conference Under Order 11 Rule 3?
(5 Marks)

Under Order 11 Rule 3, a Case Management Conference is intended to promote

settlement, ensure that all procedural requirements are fulfilled, and proactively manage
the litigation process in order to facilitate the timely and efficient resolution of cases. To
be more precise, the conference:

⦁ expedites the disposition of cases:

To ensure that cases are resolved quickly and without unnecessary delays, the conference
requires that parties follow important procedural rules (such as Order 3 Rule 2 and Order
7 Rule 5).

⦁ Improves case management.

It provides a platform for the judicial officer to monitor and control the case's progress.
This includes evaluating case management order proposals and setting specific due dates
for pre-trial tasks.

⦁ Promotes settlement possibilities:

The conference actively investigates the possibility of resolving conflicts outside of

court. The court can encourage early resolution through negotiation or alternative
dispute resolution (ADR) by speaking with both parties about the issues.

⦁ Reduces costs and delays:

The conference helps to reduce overall litigation costs and delays by ensuring that the
case is proceeding on schedule and that the parties are carrying out their responsibilities.

⦁ Combining ADR (alternative dispute resolution):

Understanding the benefits of alternative dispute resolution (ADR), the conference

integrates ADR procedures into the civil court system, resulting in a structured settlement
process that may avoid a full trial.

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4. What is a Case Management Order Under Order 11 Rule 4 of the Civil Procedure
Rules 2010? (3 Marks)

A case management order under Order 11 Rule 4 is an order issued by the court after a
case management conference. It directs the parties on the steps they must take to prepare
the case for trial. This order may include instructions on:

⦁ Disclosure of Documents: The scope and timeline for document exchange.

⦁ Submission of Witness Statements: Deadlines for filing statements and affidavits.

⦁ Scheduling of Hearings: Setting dates for future hearings or trial dates.

⦁ Pre-Trial Directions: Specific procedural directions to ensure that the case is

narrowed down to the key issues for trial. The objective is to ensure that all
matters are in order so that the trial proceeds efficiently and fairly.

5. What is the Principal Purpose of Pre-Trial Directions Under the Civil Procedure
Rules 2010? (5 Marks)

⦁ The principal purpose of pre-trial directions is to ensure that both parties are
adequately prepared for trial by:

⦁ Narrowing the Issues: Clearly defining the matters in dispute so that the trial
focuses only on the relevant issues.

⦁ Facilitating Disclosure: Ensuring that all relevant documents and evidence have
been exchanged between the parties.

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 ⦁ Streamlining the Proceedings: Setting a timetable for the completion of pre-trial
activities (e.g., witness statements, expert reports).

⦁ Promoting Settlement: Encouraging the parties to resolve some or all of the issues
before trial, thus reducing the trial’s duration and cost

⦁ Ensuring Fairness: Providing a structured framework that helps avoid surprises

during the trial, ensuring both parties have equal opportunity to present their case.

6. Which Courts in Kenya Do Not Require Case Management Conferencing? (5

Marks)

Formal case management conferences are required in Kenya's higher courts, such as the
High Court, where complex and substantive cases necessitate detailed pre-trial
instructions and schedules. Lower courts, such as Magistrates' Courts, which handle
small claims and other minor civil disputes, use a streamlined procedure designed to
expedite the resolution of less complex cases. These lower courts typically handle cases
through scheduled hearings and routine administrative listings rather than holding formal
case management conferences. This simplified method ensures that the rigorous
procedures of the higher courts are reserved for cases requiring more thorough judicial
review by reducing procedural formalities and facilitating faster dispute resolution.

7. Discuss at Least 7 Consequences of Failure to Appear in Court. (14 Marks)

Failure to appear in court can have significant adverse consequences for a party,
including:

⦁ Default decision:

If one party does not appear, the court may rule in favor of the other party, effectively
resolving the case without the absent party's input.

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 ⦁ Court Contempt:

If an absent party violates a court order, they may be held in contempt and face fines,
penalties, or other consequences.

⦁ Missed Chance to File a Claim or Defense:

The party's case may be weakened as a result of being denied the opportunity to present
their arguments, supporting documentation, and legal defenses.

⦁ Negative Inference:

The court may interpret a party's absence negatively as an admission that the party is
avoiding responsibility or does not have a good defense.

⦁ Higher Expenses:

The absence may result in additional legal expenses, such as rescheduling fees and
additional motions filed by the opposing party.

⦁ Procedural delay:

The absence of an appearance may cause delays in the case's resolution, extending
uncertainty and potentially increasing the total cost and time required to do so.

⦁ Reputational harm:

Nonattendance can have a negative impact on a party's credibility and reputation, both in
court and in future legal or commercial interactions.

⦁ Arrest warrants (in cases of persistent non-appearance) and negative consequences

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 for any related legal matters or appeals are additional possible outcomes.

8. Illustratively Differentiate Between a Hearing and a Mention. (5 Marks)

⦁ Hearing:

A hearing is a formal court proceeding in which witnesses are questioned, evidence is

presented, and substantive arguments about the case's merits are advanced. During a
hearing, the court may make decisions or rule on the issues raised.

Hearings are typically held over a longer period of time and include a detailed
presentation and discussion of the case.

⦁ Outcome-oriented:

Decisions made at hearings may result in the resolution of disputes, the award of
compensation, or other substantial relief.

Example:

In a breach of contract dispute, a hearing may involve the plaintiff calling several
witnesses to testify about the terms of the contract and the losses incurred, while the
defendant presents counter-evidence. The judge then reviews the detailed evidence and
arguments before making a ruling on whether the contract was breached and what
compensation, if any, should be awarded.

⦁ Mention:

Procedural:

In general, a mention is a brief court appearance during which the case is recorded for
administrative purposes. Its primary applications include scheduling, attendance
verification, and handling procedural matters.

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Brief and Administrative:

Mentions are typically brief and do not include a detailed explanation of the supporting
data or a compelling case.

Non-Decision-Making:

During a mention, the case's progress is primarily tracked; no final decisions are made on
its merits.

Example:

In the same contract dispute, a mention might occur a few weeks before the hearing.
During the mention, the judge confirms that all parties have filed the necessary
documents, sets the timetable for the upcoming hearing, and checks if there are any
preliminary matters to address, without discussing the substantive issues of the case.