Suppose you’re at your local mall and you’ve parked in the basement. You’re on your way to your car; you’ve got some takeout in one hand and a heap of shopping in the other. The floor’s all wet because there’s a pipe that’s burst. You don’t see any signs that say ‘Caution, wet floor’. You continue on your merry way until your shoe decides this is your time: you slip, you fall, you hit your head and dislocate your knee. Not only are you in an immeasurable amount of pain, you’ve lost most of your shopping in the process and nobody knows what’s happened to the fried chicken you swore you were carrying. Your spouse meets you at the hospital and says these magic words: ‘We should sue.’ You’re probably concussed but the idea of suing feels even more painful. The process seems like a headache that you can’t possibly navigate. You’re thinking ‘There’s not enough paracetamol in the world’.
Take a moment. Civil litigation might look complicated at first, but it’s all about the process…think of it like following a recipe. You have to walk through it step by step:
1. Meeting With a Lawyer
You’ve taken your spouse’s advice and sought the counsel of a lawyer at KSM Advocates. First, they conduct an initial client interview and establish the who, what, where, when, why and how of it all. In other words, they listen to your story, review your hospital reports and anything else that may be relevant to the case at hand. Once they collect all their ingredients, they review the information and advise you on your best way forward. The lawyer is going to answer the following questions: do you actually have a case? Is this something you can take someone to court over? Do we have enough evidence? Is the suit time barred? Who exactly should we sue: the mall? The maintenance company? Both? Usually, they’ll suggest sending a demand letter to the person you’re suing. If the letter goes unanswered, you can go ahead and file the suit.
2. Drafting the Suit
This involves drafting the relevant pleadings. A pleading is a written document filed with a court by parties to a civil suit. Broadly, they include a plaint, a statement of claim, a statement of defense or other specific allegations encompassed in a formal written document. Pleadings are important because they enumerate the issues to be adjudicated, they tell the court why the action is being brought to court in the first place. Additionally, supporting affidavits, witness statements and lists of documents are prepared and attached to the pleadings. Your arguments are brought out on paper: what happened, who is responsible and what you wish the court to do about it. You are essentially submitting yourself to the court and asking them to intervene, to remedy a wrong committed against you.
3. File the Suit
Once the pleadings are ready, your lawyers will consult you and if all is in order, they will signal that it’s go time. The documents are filed in court, filing fees are paid and you’re assigned a case number. This is great news: your dispute is now officially a legal matter.
4. Take Summons and Serve the Summons
The court will then issue a summons. This is essentially a formal confirmation alerting the defendant to the fact that they are being sued. When we speak of ‘serving’ a summons, we mean delivering this news to the defendant. Unfortunate for them but fortunate for you. It is a central tenet in our court system that summons must always be served properly. Proof of service is crucial: if the defendant was served defectively or if they never received the summons, your case stalls and cannot proceed.
5. Parties Enter Appearance
Once the summons is served, the next step requires the defendant to enter appearance. This means that the defendant acknowledges they are aware of the case and intend to proceed. Choosing to ignore a summons is a bold move and a total disregard of the court’s authority. If a defendant does this, it could lead to a default judgement in your favour.
6. Filing the Defense
This is the defendant’s turn to rehash their side of the story. They might admit some of your claims, deny a few or totally reject the entire substance of your pleadings. This is their opportunity to explain why they’re not responsible for your injury or loss of property.
7. Amend the Pleadings
Suppose new facts emerge and they’re material to your case. The law in Kenya makes it possible for pleadings to be amended. Names can be corrected, claims refined and additional parties added. Courts will generally appreciate disputes according to their substance, not technical oversights or typos.
8. Pretrial case conferencing
Before trial begins, the court supervises a pre-trial conference to manage the case. Think of it like a dress rehearsal: the main cast is assembled; they know their roles and what is expected of them. The judge will clarify issues, schedule timelines and ensure all the necessary documents and witnesses are ready. The parties or their advocates meet in a bid to organize the case and eliminate the risk of unnecessary surprises so the trial runs smoothly and efficiently. Its purpose is to ensure that no party turns up on the hearing date claiming “We don’t have this document…we weren’t aware of…”
9. Trial
This is the moment everyone has been waiting for. Your case finally makes it to trial. Your witnesses testify and are examined, your documents are presented and the judge listens to everyone’s arguments.
10. Submissions
Once all the evidence is in and the witnesses have said their piece, each side gets one last chance to persuade the court to decide in their favour. Our cake is almost done baking at this point and your lawyer will be tying everything together, reminding the court of the following: this is the evidence we presented, this is the law that applies, and this is why it all points to a win for our side. The timer is almost about to go off: your submissions may be oral, written, or both depending on the court’s directions.
11. Judgement
After both sides have been heard and all the evidence assessed, the court will issue a judgement. Simply speaking, the court will deliver its decision through a judgement outlining who wins, who loses and who pays as a result. Remember that these decisions are not arrived at lightly: the judge will examine every detail and decide accordingly based on the merits of the case at hand.
