CIVIL LITIGATION:

PRE-TRIAL PRELIMINARY CONSIDERATIONS

OUTLINE
Determining the Existence of a Cause of Action
Limitations
Feasibility of the Law Suit
Turning Down a Case
Ethical Consideration in Accepting a Case
Ethical Consideration after Accepting a Case
1. Determining the Existence of
a Cause of Action
 Not all issue determined in a client interview
are resolved through litigation process
 A legal right must exist
 This legally recognized right to relief is
known as a cause of action
 Cause of action.
1. Facts sufficient to support a valid suit….
2. The legal theory upon which a lawsuit
(“action”) is based
 In the pleadings this will include:
a) the pertinent facts distinct in each situation;
b) the particulars (if any) which relate to the
actions of the defendant; and
c) The reaction of the plaintiff in relation to the
acts of the defendant that caused the plaintiff
to incur a loss or to be damaged.
Example
 Suppose that Juma rides his motorcycle
negligently and fails to stop at a stop sign. He is
hit by Somi, who is driving in accordance with all
traffic laws, in a careful and prudent manner.
Juma is the only one injured in the accident. Can
Juma recover his damages from Somi?
 In determining whether a cause of action exists,
you must examine both the law and the facts in
the case.
 First, you must determine what general area of
substantive law applies to the case.
 Second, the general substantive law area of law
must be narrowed and a more specific topic
identified.
 Then you can examine that specific area and
determine what factors or elements must be
present before a cause of action is created
Example: Kombo Case
Seven months ago June Kombo was injured in an
automobile-bus collision. The accident occurred
when the brakes on the bus failed, resulting in
the driver’s inability to stop for a red light. The
bus, in which Kombo was a passenger, was hit
broadside by a car entering the intersection at
the green light. The bus was owned and
operated by the city.
However, all maintenance on the bus was
performed by Allied Auto Repair, a private
company under contract with the city to
maintain and repair all city buses. Kombo has
requested that your firm represent her in a
personal injury lawsuit for injuries she sustained
in the accident. Your pupil-master has requested
that you do some preliminary research to
determine whether this lawsuit should be
accepted and, if so, whether any immediate
action must be undertaken
The Kombo case is controlled by the substantive
law of torts. More specifically, it is covered by the
tort of negligence.
• A review of the tort of negligence reveals that for
one to have a cause of action, the following
elements must be shown:
1. The defendant must have a duty of due care
toward the victim
2. That duty must have been breached (by a
careless act)
3. The defendant’s careless act must be the actual
cause of the damages.
4. The defendant’s careless act must be the
proximate cause of the damages (i.e., the
damages must be foreseeable).
5. Damages must have been sustained.

 Once the elements of a cause of action have

been ascertained, the final step in determining
whether a cause of action exists in a particular
case is to review the case itself to see if facts
exist that support each of the elements.
• In determining whether Kombo has a cause of
action in negligence against Allied Auto Repair,
the analysis might go as follows:
1. An auto repair company owes a duty of care to
all users of vehicles that it maintains or repairs.
Because Kombo was a passenger on the bus,
Allied owed her a duty of due care.
2. If the bus has been properly maintained, the
brakes would not have failed. Thus, there is
some evidence of the breach of the duty owed
to the users of that bus.
3. If the brakes had not failed, the accident would
not have happened. Allied’s failure to properly
maintain the brakes is, therefore, the actual
cause of Kombo’s injuries
4. Kombo’s injuries were a foreseeable
consequence of Allied’s actions. This establishes
proximate or legal causation.
5. Kombo has sustained injuries and incurred
expenses, thus establishing damages.

 Because each of the elements of the cause of

action is supported by facts, the conclusion is
that Kombo does have a cause of action against
Allied Auto repair for negligence.
 Identifying the elements of a cause of action is
important in the litigation process for various
reasons.
 Most important is that each of the elements
must be proven at trial for the plaintiff to prevail.
 That is, to win a case the advocate must present
evidence that supports each element of the
cause of action
 The initial pleadings must also allege facts that
support each element of the cause of action.
 Knowing the elements of a cause of action in a
particular case is essential to any litigation
lawyer in undertaking pre-trial preparation.
 Understanding what you must prove at trial
enables you to gather appropriate evidence and
conduct relevant discovery.
 It also equips you to prepare pleadings that
comply with legal requirements and to review
the opponents pleadings for legal deficiencies.
2. Limitations
Statute of Limitations
 Unless a case is filed within the appropriate time
the statute of limitations may preclude the
institution of such suit regardless of the merits of
the case.
 Only the court’s discretion can be invoked to
revive such a case, with sufficient cause shown to
explain delay
 See Barclays Bank of Kenya v. Kepha Nyabera and
189 others and 2 others [2007] eKLR; E.M.S v.
Emirates Airlines [2012] eKLR
How Calculated?
 The time limitations are usually easily calculated.
 For example, a plaintiff might have three years
from the date of the accident in which to file an
action for personal injuries.
 Because the date of the accident is easily
determined from the police reports and
witnesses, the statute of limitations is calculated
with no difficulty
 However, in some cases, time limitations are not
easily determined.
 For example, in professional malpractice cases or
in fraud cases, the statute of limitations might
start to run not from the date of the malpractice
or fraudulent act, but from the date that the
plaintiff discovers or should have discovered the
malpractice or fraud.
 Sometimes this is years after the defendant’s
wrongdoing.
 This kind of statute of limitations often presents
numerous legal and factual questions, and
proving the date on which the plaintiff discovered
or ought to have discovered the wrongdoing
becomes an important part of the trial process.
Calculating the statute of
limitations
 In calculating the statute of limitations you do not
count the first day, but you count the last day.
 Thus if you are filing a lawsuit for injuries from an
automobile accident and the accident happens on
Monday, January 28, 2013, you begin counting on
January 29, 2013.
 Assuming that you have a three year statute of
limitations, it would run out on Thursday, January
28, 2016, and your complaint would have to be
filed by that date.
 However, if that day is a court holiday, you would
have until the next working day to file your
complaint.
Limitations of Actions
 This is provided for in the Limitation of Actions Act
(Cap. 22, Laws of Kenya).
 Section 4 sets out that an action founded on tort
may not be brought after the end of three years
from the date on which the cause of action accrued
and actions based on contract cannot be brought
after six years such as actions founded on
enforcement of a recognisance, actions to recover a
sum recoverable by virtue of written laws and
actions to claim an equitable relief.
 Actions founded on libel and slander may not be
brought upon expiry of 12 months from such date.
 In cases where a tortfeasor claims against another
tortfeasor under Section 5 of the Limitation of
Actions Act (the right to recover contributions in
respect of any damages from another tortfeasor)
such an action shall not be brought after the end of
two years from the date on which that right accrued
to the first tortfeasor.
 Proceedings founded on tort shall be brought
against the national and county governments prior
to the expiry of 12 months from the date on which
the cause of action accrued.
 Proceedings founded on contract shall be brought
against these government s prior to the lapse of
three years from the date on which the cause of
action accrued.
 Where land is concerned, the limitation period is
12 years as provided for in Section 7 of the
Limitation Act.
 In fraud cases, under Section 26 of the Limitation
Act, the limitation period can be extended in
cases of fraud or mistake and the limitation
period does not begin to run until the plaintiff
discovers the fraud or mistake.
 Under Section 90, the limitation period for
employment disputes is three years, except for
actions concerning negligence, for which the
limitation period is one year from the date that
the negligence or default complained of ceased.
 The bar of limitation must be raised by a party to
a suit as a defence to a claim or a counterclaim.
 In Abdullahi Ibrahim Ahmed (Suing as The
Personal Representative of The Estate Of Anisa
Sheikh Hassan (Deceased)) v. Lem Lem Teklue
Muzolo [2013] eKLR Coram: Nambuye, G.B.M.
Kariuki & Ouko JJ.A. was of the view that the
issue of limitation must be specifically pleaded
before a court can make a decision on it.
Tolling the statute of limitations
 Some events will sometimes toll or extend the statute
of limitations.
 When a statute is tolled, the time stops running.
 The most common reason a statute of limitations is
tolled is that the plaintiff is a minor.
 The statute is tolled during the minority of the plaintiff
and begins to run once the minor reaches the age of
majority
 Do not assume, however, that the statute of
limitations is always tolled during a child’s minority.
You must check the appropriate statutory law
 Article 143(2) precludes an incumbent president
from facing a civil suit for any acts or omissions in
exercise of their power during their incumbency.
 According to sub-article (3) the time for a civil
suit against an incumbent president shall be
tolled and time will only start running out when
they leave office.
Claim Statute
 Most of the civil suits are guided by the Civil procedure
Rules, 2010.
 This rules require that a written claim be presented to the
defendant before a lawsuit can be filed.
 Some statutes, for example the Government Proceedings
Act Cap 40 require that a 30 day notice be given to the
Government (s.13A(1); (See Kenya Bus Services Ltd &
another v Minister for Transport & 2 others [2012] eKLR)
 Naturally, there are time limits in the notice of claim.
 They require that the prospective defendant be notified
that a claim is pending, who is making the claim, what the
claim is for and the amount of the claim. The party then has
the opportunity to pay the claim before any lawsuit is filed.
The Doctrine of Laches
 Equitable cases (cases in which the plaintiff is
asking for something other than money
damages) are governed by another limitation
known as laches.
 Laches is an equitable principle that prevents
lawsuits from being filed when, in fairness to the
defendant, too much time has elapsed, even
though the statute of limitations has not expired.
 For example, suppose Njeri and Ouma sign a
written contract in which Ouma agrees to sell
his house to Njeri for 3.5million. For various
reasons, Ouma changes his mind and refuses to
complete the sale. Rather than sue on the
contract, Njeri finds another house for the same
price and takes no immediate legal action
against Ouma. Three years later, however, after
a surge in the real estate market, Njeri decides
to do something. Ouma’s house is now worth
15million, and Njeri assumes she can purchase
the house for the contract price of 3.5million,
and can immediately sell it and make a large
profit. She therefore sues Ouma for specific
performance of the agreement. Assuming the
statute of limitation is six years.
 Technically , the complaint could have been
filed within the indicative time duration of
limitation. However, with regard to fairness
and equity, Njeri waited too long to file her
action.
 Thus laches could prevents her from
prevailing in her action
 Remember laches applies only in equitable cases.
 If Njeri sued Ouma for money damages for breach
of contract, and the appropriate statute of
limitations had not expired, then fairness and
equity will not be a bar.
 Njeri’s claim for damages would be the difference
between the contract price and the fair market
value of the house at the time the contract was to
be performed and not at the date that the action
was filed.
Tickler Systems
 Missing a statute of limitations can result in a
malpractice claim against the law firm.
 See Glencore Grain Limited v. T.S.S. Grain Millers
Limited [2012] eKLR
 Therefore, most litigation firms have calendar or
tracking systems to remind them of these or other
important dates.
 These calendaring systems are known as tickler
systems.
 This involves documenting the case files for bring
ups, when the matter is for filing or as a notice of
any other issues to be attended to on the file.
3. Feasibility of the Lawsuit
 Even though you may determine that a case has
merit you may nevertheless decide that the
lawsuit is not practical.
 Litigation takes a great deal of time and can cost
a great deal of money, not only in advocate fees,
but in disbursement costs.
 Before an advocate accepts a case, he should
always review it to see if it is practical. The
matter may be beyond their scope of knowledge.
 See Joseph Wanjohi Njau v. Benson Maina Kabau
[2013] eKLR.
4. Turning Down a Case
 If an advocate decides not to accept a case, he
must clearly communicate this to the concerned
individual.
 This should be done in writing so that there is a
record of the fact.
 In turning down a case, an advocate must
exercise care in stating an opinion regarding the
merits of the case to the individual.
 It is also advisable to warn the person about any
possible statute of limitations.
Mr. Mlalamishi
21 City Square
Nairobi County

Dear Mr. Mlalamishi

Thank you for considering us regarding your

dispute with ABC Corporation. As I explained to
you on telephone, our law firm is presently unable
to represent you in this matter. Please note that
our inability to accept your case is not a reflection
or comment on the merits of your case.
If you wish to pursue this matter you should
consult other legal advice. If you decide to do so,
you should act as soon as possible.
As we have previously explained to you, the
statute of limitations in this kind of cases is three
years from the date of injury. If you have not filed
a lawsuit within that time you will be prevented
from doing so.

Thanking you for considering us.

Regards.
5. Ethical Considerations in
accepting a Case
 This is based on the Rules of Professional Conduct
and involves:
 Competency to handle the case.
The advocate should not accept a case if he does
not possess the ability, knowledge, or time to
handle it.
 See Joseph Wanjohi Njau v. Benson Maina Kabau
[2013] eKLR
 The advocate can also not ignore the case once he
has accepted it.
 Frivolous claims
 Lawsuits that have no merit should not be
pursued.
 If the advocate handles a frivolous case, he risks
being sued himself by the defendant in the action,
in addition to subjecting himself to disciplinary
proceedings by the Disciplinary Tribunal
 Conflict of Interest
 Conflict of interest usually arises when a firm is
asked to sue a party whom it currently
represents or previously represented in another
case (although not always)
 See Oriental Commercial Bank Limited v. Central
Bank of Kenya [2012] eKLR; King Woollen Mills &
Anor v Kaplan & Stratton Advocates (1990 – 1994)
EA 244; Uhuru Highway Development Ltd v.
Central Bank of Kenya (2002) 2 EA 654; and
Halsburys Laws of England, 3rd Edn. Vol. 3
paragraph 67
 The conflict of interest is directed to whether the
matter currently handled is in congruence and
directly detrimental to the interests of the client
or former client in the erstwhile matter.
 A conflict is determined by whom the firm
represents, rather than by whom any particular
advocate in the firm represents.
6. Ethical Considerations
after Accepting a Case
 Communication with the Client
 Lawyers owe a duty to their clients to keep them
advised about the status of their cases.
 Failure of lawyers to do this is the basis of one of
the most common complaints against advocates.
 You should establish some procedure for
regularly advising the client about the status of
their action.
 Communication with the opposing party
 It is unethical for an advocate to personally
contact an opposing party who is represented by
their own advocate.
 However, if the opposing party is not represented
by counsel, communication is allowed.
 Confidentiality
 Communication between a client and an advocate
is confidential.
 The advocate is prohibited from disclosing any
information revealed to him by his client
 The right of the client is also upheld under Chapter
4, the Bill of Rights
– Article 31(d) which states that every person has
a right to privacy, which includes the right not to
have the privacy of their communications
infringed.
 Honesty
 An advocate must never knowingly make a false
representation about a case to a court or other
tribunal.
 In addition to honesty with the court, advocates
should always be honest in their dealings with
other advocates
 Advocate fees
 The fees should not be unreasonable or
unconscionable
 Fee arrangement, including any additional
expenses, should be clearly explained to the client.
 The litigation fee can be either set at a flat fee, or
fixed sum, to handle the case or in a hourly billing,
where the client is charged a fixed amount for
each hour the law firm spends on the case.
 There can also be a contingent fee, a common
arrangement in personal injury cases.
 In the contingent fee agreement the advocate
takes a percentage of whatever recovery is
obtained.
 If no recovery is made, the advocate receives no
fee.
 Contingent fees have been allowed on the theory
that they permit people to pursue cases they could
not afford otherwise.
 A fee is the compensation that an advocate receives for
his time and efforts in a case.
 However, it is not the only expense incurred during a
litigation process.
 Courts require filing fees to process documents, process
servers have to be paid to serve papers.
 These are out-of-pocket expenses known as
disbursement costs.
 Most advocates require their clients to pay the costs of
the suit in addition to the fee charged.
 Even if the case is handled on contingent fee basis. Here
the advocate can advance the requisite fees and expect
a reimbursement in addition to his fee when the case is
settled. This should be made clear to the client.
 Written Fee Agreements
 The fee agreement between the client and the
advocate should always be in writing and signed
by the client.
 The fee agreement is usually included in a
document referred to as a retainer agreement.
 Fee Sharing
 Generally, an advocate cannot share a fee in a case
with a non-lawyer. (s.37, cap16)

 Property of Client – Trust Accounts

 See Kamau John Kinyanjui v. R [2010] eKLR
 An advocate cannot commingle his own assets or
property with property belonging to a client.
 The advocate should have a trust account into
which they deposit all money belonging to their
clients
 In litigation, trust accounts are utilized for two
main purposes – advances by the client and
settlement or satisfaction of judgments
 In the latter case the settlement cheque is
primarily the property of the client, however, the
advocate has lien against the settlement .
 But he cannot put it into his personal account. It
can only go to the trust account.
Review Questions
 What is a cause of action?
 What is the importance of cause of action to the litigation
process?
 What are the various types of limitations of filing a lawsuit?
 What is a tickler system and why is it important in a litigation
law firm?
 What practical considerations must be reviewed prior to
accepting a case?
 What is the proper procedure for turning down a case?
 What are the various ethical standards that control an
advocate’s decision to accept a case?
 What are the ethical responsibilities governing
law firms that handle litigation?
Group Exercises
 Review the cases for interview and come up
with the causes of action in each to be
presented by the Firms interviewed.
 Review the case of Kombo and research on the
potential causes of action that may exist against
Allied Auto repair, the city, the bus driver, and
the driver of the other vehicle involved in the
collision. Prepare an interoffice memorandum
explaining your conclusions.
• During your client interview with June Kombo,
assume that she asks you the following questions.
How would you respond?
1. Do you think I have a good case?
2. How long will this case take if it has to go to trial?
3. Based on your experience, what is my case worth?
 Determine the cause of action in the following:
 Caleb and Luta enter into a written agreement
whereby Caleb agrees to purchase Luta’s house.
Prior to signing the agreement, Caleb asked Luta
about the condition of the roof, Luta tells Caleb
that the roof is in good repair. In fact, Luta
recently had a roof inspection done and was told
that the roof was in terrible condition and should
be replaced immediately. Shortly after Caleb
moves into the premises, a storm occurs and the
roof leaks in several places.
 Edward buys a pre-assembled student desk for
his son. When an overhead light goes out in his
son’s room, Edward stands on the desk to reach
the light. The desk collapses and Edward is
injured.