- The Magistrates' Courts have pecuniary jurisdiction to hear and determine civil cases which do not exceed Sh20 million.
- Pecuniary jurisdiction is a system for allocating cases according to their financial value, enabling courts to distribute resources effectively.
Image: FILE
Imagine a situation where a someone else, say a private citizen or private company claims that the land that you are settling in is theirs.
They have the documents to show for it, but so do you.
You try to negotiate and put a case that their documents of ownership are fake.
They are however not open to this and maintain that you are on their land.
So you decide to settle the matter in court. How do you go about it then?
I sat down with legal advisors Laura Nekesa and George Oiye and they unpacked steps to follow.
Write a demand letter
A demand letter is a formal document that is used to notify the other party and request them for a resolution before you take legal action.
In it, state the recommended resolution or action you need to take and set a reasonable deadline for response.
Go on and tell them of the consequences that you will take if they fail to take the steps you are seeking.
Make sure that your lawyer reads it before you send it, or writes it for you.
Know where to file the case
This can be dictated by the monetary value.
The Magistrates' Courts have pecuniary jurisdiction to hear and determine civil cases which do not exceed Sh20 million.
Pecuniary jurisdiction is a system for allocating cases according to their financial value, enabling courts to distribute resources effectively.
This means if your land's value exceeds the said amount, you will have to file your case at the Environment and Land Court, which has the same standing as that of the High Court.
It can also be at the Land Disputes Tribunal.
Other issues to consider include the location of the subject matter of the case and the residency of the parties. Filing a case in the wrong court can lead to dismissal of the case.
File the suit
At this stage, you submit the completed documents to the court registry.
This is alongside the filing fee.
The parties in a civil case are the plaintiff and the defendant.
The plaintiff in this case is you who has taken the case to court.
"After filing the case, the court will issue the defendants with the summons to enter an appearance. That simply means that they are supposed to show which advocates will show up and who will take the conduct of the matter when it goes to court," Nekesa says.
This is filed together with the defence and any other accompanying documents.
Court proceedings begin
Pre-trial
The court then issues dates for pre-trial to ensure that parties have filed and responded to submissions, that they complied and that they have witnesses ready.
"Basically, it is like an in-house check. Is everything done as required?" she explained.
After this, the court gives another date to confirm compliance to pre-trial after which an hearing date is set.
Trial
Here, the plaintiff, since the case is theirs, calls their witnesses first.
The defendant's advocate is then given the stand to cross-examine them.
This is to ask them questions on the evidence they have produced in court.
When the witnesses are exhausted, the defendant calls their witnesses and the process is repeated.
Judgment
This happens after the hearing has been completed and the magistrate or judge has determined the verdict.
The court can either rule in your favour or in that of the defendant, according to the evidence presented before it.
If either party is aggrieved by the judgment, they are at liberty to appeal.
Image: SHARON MWENDE
Disclaimers
Oiye notes that it is important to remember that each court has its procedures, even under the different courts in the civil division.
"Each court has its procedure. The main branches would be criminal and civil. But under civil, a family court has different procedures and the same applies to ELC and Employment and Labour Relations Court," he says.
"All these procedures are in the acts that give these courts their powers. Like in the family court, in matters touching on divorce, some regulations guide them like in matrimonial proceedings rules under the marriage act."
Costs of a case
According to Nekesa, the costs of a case are not standard.
"It depends on the case, the subject matter and the pleadings the parties filed. It is case to case not standard," she said.
In a case where the subject matter is land, the cost of the case will be determined by the cost of the land.
This is apart from paying your advocates' fees and the cost of filing a case.
Ideally, a civil case is much more expensive than a criminal case but this will also depend on the time taken before it is completed.
There is however no exchange of money between parties in a criminal case.
In civil, the costs are awarded by the party.
It is important to always pray for awards or for the defendant/respondent to pay the costs of a suit during filing.
"It is the court that determines who pays the cost depending on who won the case and who lost it. At that point, the costs are tabulated by the other party on what they used during the period of the trial," Nekesa says.
The tabulation is in a document called the bill of costs.
After the tabulation, it is sent to the defendants who look through it and can either contend and pay, or challenge it.
The challenge happens through written submissions which can be responded to, by the plaintiff.
Costs are paid at court rates.
Risks attached in a legal dispute
When the plaintiff wins the case and is granted the number of damages they plead for, the defendants are in a risky position.
They can however apply to stay the execution of the orders.
"When you file, the court requires that you pay security for cost. This is just to say even though the defendant wants to appeal, in the event they lose it, the plaintiff will not be at a loss," she says.
The money is deposited in an account to which advocates of both parties have access.
How long can a case take
The period of a case depends on several issues.
"It is on a case-to-case basis, the weight of one case cannot be the weight of another. One case might have 10 parties another only two," Nekesa says.
In the former, it will take longer as all parties have to be presented and cross-examined compared to the one with two parties.
Another barrier will be backlogs. This means that the court will also give dates which are not crowded.
This will mean that the period can run in terms of months to years.
Judicial reviews, which deal with matters of constitution, take shorter periods.
In some cases, say employment-related or in case of breaches of one's rights, the petitioner or plaintiff can file for a certificate of urgency.
This is to compel the court to give the orders sought as the consequences otherwise are major - This is to say if the orders are not granted now, it won't matter later.
These are filed in civil cases mostly and in criminal, for harbeas corpus.
A harbeas corpus is a recourse in law where an application is made requesting the court to order that a person being detained, usually by police or prison officials, be produced in court to determine whether their detention is lawful.