THE PLAINT IN GENERAL

The plaint is the pleading in which the plaintiff states the basis of the lawsuit.
Generally the plaint does the following:
(1) Identifies the plaintiffs and defendants in the lawsuit, and describes their status and
capacity to sue and be sued
(2) Describes the factual basis for the lawsuit
(3) Makes a request or demand for some relief from the court.
(4) Contains a statement showing that the court in which it is filed has the proper
jurisdiction and venue.
1. The caption the part of the plaint that identifies the court in which the plaint is filed,
the names of the plaintiffs and defendants, the title of the document and track (see
Figure 5-1).
The choice of the case track is determined by the parties from either small track, fast
track or multi-track.(O.3 r.1)
Format
REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO.

OF 2013

(FAST TRACK)
JOHN WHITE HEAD..PLAINTIFF
-VERSUSKEY NORTH HEAR.......DEFENDANT
PLAINT
Figure 5-1 The court, designation of the parties, title of document and track
2. The body a description of the parties, factual basis for the lawsuit, and a description of
the loss or damages incurred.
3. The prayer a request for some relief or remedy from the court.
4. Statements showing proper jurisdiction and venue.
5. The subscription and verification the signature of the advocate filing the document, the
date, and plaintiffs statement (verifying affidavit), under penalty of perjury, that the
contents of the plaint are true

 Before you begin to draft any plaint you should analyze your case, determine the
purpose of your pleading and outline the general content of your document.
Specifically you should know:
(i)

Who will be named as parties and how they will be named

(ii)

The type of claims or causes of action that will be included in the plaint

(iii)

The type of relief you are demanding

(iv)

How you will show that jurisdiction and venue are proper

(v)

Only when you have done this preliminary analysis should you begin to actually draft
a plaint.

(vi)

Real Party in Interest

(vii)

The plaintiff in any lawsuit should be the one who is entitled to the relief sought in the
plaint.

(viii)

This is known as the real party in interest.

(ix)

However, at times a special relationship exists that creates a different situation. For
example, an executor may wish to sue on behalf of an estate, or a trustee may sue on
behalf of a trust, or a collection agency may wish to sue on a debt assigned to it for
collection.

Parties to the lawsuit

Status of a party refers to the type of entity that describes the party.
Most commonly a party to a lawsuit will be an individual, a corporation, a partnership
or other unincorporated business, or a governmental agency.
The status of the party will usually be described both in the caption and in a separate
allegation within the body of the plaint.
Status
Therefore:
PARADISE FOUND, INC....DEFENDANT
In addition, within the body of the plaint you would include a paragraph describing
the status, such as the following:
The Defendant, PARADISE FOUND, INC., is and was at all times herein mentioned
a corporation duly registered and existing under the Companies Act, Cap 486 Laws of Kenya
You also need to make certain that the parties named in the plaint have capacity, or
the legal right, to sue, or be sued.
Children and incompetents do not have the capacity to pursue their own lawsuits.

 Unless a general guardian has been appointed, the court will appoint a special person,
referred to as a guardian ad litem, to pursue the case on behalf of the minor or
incompetent.
Capacity
Even the parents of a child cannot file a lawsuit on their childs behalf unless they
have been appointed as guardians by the court.
A guardian ad litem is usually appointed at the request of the parent or guardian.
The person wishing to be appointed files a motion or a petition with the court prior to
filing any lawsuit, asking to be named as guardian ad litem.
The following is an example of how parties would be designated in such a case.

MARY MWASUDI, a minor, by

friend...PLAINTIFF

GEORGE

MWASUDI,

her

next

of

Vs

DEF CORPORATIONDEFENDANT
Although children or incompetents cannot sue in their own names, they can generally
be named as defendants in the plaint.
However, after they are served with the plaint they may be entitled to have a guardian
appointed to represent their interests.
A corporation and other entities
A corporation is a person for legal purposes, including lawsuits. As such it has
capacity to sue and be sued in the corporate name. However, exceptions do occur. If
the corporation fails to act like a corporation not holding meetings, failing to keep
corporate assets separate from personal assets, etc., and - then the individuals behind
the corporation can be sued individually (piercing the corporate veil)
The directors, officers, or shareholders of a corporation will also be named
individually as defendants if they have personally done something wrong.
An unincorporated association, such as a partnership, does not have legal existence,
separate and apart from the partners.
It is proper, therefore, for such an organization to sue and be sued in the name of its
members.
When suing a partnership or other unincorporated business entity, it is common to list
both the partners names and the business name:

ABOUD ALI and MANSOUD ALI, a partnership, T/A HEARTH & HOMES REAL
ESTATE CO., DEFENDANTS
There are limits which regulate the circumstances under which a governmental entity
can be sued.
Even when a statute permits the government to be sued, the law requires that claims
be filed with a governmental agency before actually filing suit.
Governmental Agencies
In such a case it will be necessary to allege in the body of the plaint that this has been
done. (O.1 r.11)
Parties using fictitious names If a plaintiff uses a fictitious name in his business, a
lawsuit that he files related to that business should identify the plaintiff by his proper
name.
If he wishes, the plaintiff may indicate that he is doing business under another name.
Special Problems with parties
The plaintiff would then be identified as follows:

MARTIN KACHUMBARI,
.PLAINTIFF

ALIASA.K.A..T/A

KACHUMBARI

DINER

When the defendant is doing business under a fictitious name, the true name of the
party may be unknown to you when you are preparing the plaint.
You can undertake the requisite due diligence but you may be unable to gather
accurate information.
It is therefore necessary to identify the defendant in the plaint by the fictitious name.
In such a case, when the true name of the defendant or defendants is determined, the
plaint can generally be amended.
Order 1, rule 9, Civil Procedure Rules, 2010
This term refers to defendants whose very identity is unknown.
Fictitiously named defendants are commonly named in plaints to cover a situation in
which a new defendant is discovered after the statute of limitations has run.
In such a case the advocate argues that the plaint was filed against the newly
discovered defendant within the statute of limitations, he was just referred to by an
incorrect name.
The advocate then tries to amend the plaint to correct the name.
Fictitious Defendants

 The Civil Procedure Rules allow plaintiffs to name a newly discovered defendant
even after the statute of limitations has run as long as the new party had received
notice that the lawsuit has been filed within the time allowed for service, would not be
unduly prejudiced, and knew that but for a mistake, he or she would have been named
as a party in the original suit.
In such a case, the date of filing against the new party relates back to the original
filing date.
Order 1, rules 7, 9, 10(2) Civil Procedure Rules, 2010
Joinder that is allowed but not required is known as permissive joinder; and joinder
that is required is known as compulsory joinder.
The rules regarding permissive joinder, joinder of parties that is allowed but not
required, are usually very liberal.
Joining Multiple Parties
Parties are permitted to be joined together in a plaint as plaintiffs or defendants as
long as there is some common question of law or fact and the claim arises out of the
same occurrence or series of occurrences. (O.1 r.1 & 3)
Generally, if the court cannot resolve the matter without the presence of a party, then
joinder of the party is required. (O.1 r.10(2))
For example, suppose that title to a certain piece of real property is in question, and
four different individuals are claiming ownership.
If one of those parties files a lawsuit to determine ownership (known as quiet title
action), he would have to name the other three claimants as defendants.
The court could not determine ownership unless all four parties were before the court.
When parties are required to be joined in the lawsuit, they are sometimes referred to
as indispensable parties
Even when it appears that joinder of certain parties is essential to the case, if
jurisdiction over one of the parties is impossible to obtain, the court may allow the
matter to proceed without that party being named.
At times the number of potential plaintiffs in an action becomes too numerous to be
practical.
When this happens, a representative suit can result.
A representative suit occurs when one or more parties who share a claim with a
multitude of others file a lawsuit in their own names and also claim to represent
numerous others in a similar situation.
Representative Suits
To maintain a representative suit, the party filing the lawsuit must usually get
permission from the court to proceed with the action.

 If the court grants permission, it will also direct that all members of that class being
represented get notice of the action. Order 1, rule 8(1)
Generally, the court also orders that all class members who can be identified should
get individual notice, where practicable.
Included in the notice to all potential members of the class is usually an explanation
that any potential class member can request in writing that he or she be excluded from
the class.
If a member does not request exclusion, that class member will be bound by any
judgment in the case.(Order 1, rule 8(2))
The Constitution guarantees the right to institute court proceedings claiming that a
right or fundamental freedom in the Bill of Rights has been denied, violated or
infringed, or is threatened. (Art.22(1))
Further, it guarantees the right to institute those proceedings on behalf of a group or
class of persons(Art.22(2)(b)) and in the interest of the public. (Art.22(2)(c))
Self reflection
The plaint in any action must contain some allegation showing that the lawsuit is
being filed in the proper court.
The jurisdiction of the courts is either territorial or pecuniary.
Territorial jurisdiction refers to the area to which the jurisdiction of the court extends.
Pecuniary jurisdiction relates to the maximum monetary value for the cases which the
court is going to entertain.
Jurisdiction and venue
Generally, a claim must be instituted in the court of the lowest grade competent to
hear it.
However, where a case involves an important point of law, it may be instituted in a
court other than that of the lowest grade. (s.11)
Suits involving immovable property must be instituted in the courts within the local
limits whose jurisdiction the property is situated. (s.12)
In cases of personal injuries, breaches of contracts or statutory obligations they should
be instituted where the cause of action arose or where the defendant resides or works
for gain.(s.14)
Where there is more than one defendant, the suit may be filed in a court in whose
jurisdiction one of the defendants resides or works.(s.15)
When reviewing the facts that are alleged in the plaint, the defendants advocate and
the court should be able to tell that there is a legal basis for the lawsuit, even though
the legal basis need not be expressly stated in the plaint.

 The plaint must contain sufficient facts to put the defendant on notice as to why he is
being sued, this is known as notice pleading.
Claim or cause of action
The use of more detailed allegations in a plaint may have an effect on later discovery
and disclosure rights and obligations and should be carefully considered.
Facts and not legal theories should be alleged. For example,
Plaint for Specific Performance of Contract to Convey Land
On or about December 1, 2011, plaintiff and defendant entered into an agreement in
writing a copy of which is hereto annexed as Exhibit A
In accord with the provisions of the said agreement plaintiff tendered to the defendant
the purchase price and requested a conveyance of the land, but defendant refused to
accept the tender and refused to make the conveyance.
Plaintiff now offers to pay the purchase price
Wherefore plaintiff demands
(1) The defendant be required specifically to perform said agreement,
(2) Damages in the sum of one hundred thousand shillings, and
(3) That if specific performance is not granted plaintiff have judgment against defendant
in the sum of ________shillings.
(4) A plaint may contain any number of causes of action or counts.
(5) Whenever a cause of action arises out of the same general factual situation, the rules
of pleading usually allow them to be joined in the same plaint.
Handling multiple claims
As a general rule, if the claims provide different remedies or are proven by different
facts or evidence in the case, they should probably be separated into distinct causes of
action.
However, because the rules of pleading are so liberal, if two or more claims were
combined into one cause of action, the court would either allow the pleading to stand
as written or allow it to be amended.
A question arises when a plaint contains two inconsistent causes of action.
For example, consider the following situation:
Brian signs a contract with Dave to buy a house for Kshs.2 million.
Before the time for the deal to close, Dave informs Brian that he has changed his
mind and will not sell.
As of the date of sale, the value of the house has increased to Kshs.2.2million.

 Brian now has a choice.

Does he want the house, or should he make Dave pay for any damages that he
incurred because he did not get the house (the damages being the difference the
purchase price and the fair market value at the time and place of sale).
If he gets the house at the original contract price, he will not have incurred the loss of
profit in the house.
Therefore, asking both for specific performance of the contract and for damages
because it was not performed is inconsistent.
The rules of pleading usually allow the plaintiff to allege causes of action that are
inconsistent.
However, the plaintiff will not get a judgment on both of them.
Multiple plaintiffs they should be joined within the same cause of action if they have
a joint claim or if they are suing for the same thing.
For example, where Paul & Margaret Mbugua, husband and wife are suing for the
same thing, i.e., the damages that they sustained in buying a non-existent plot.
They are not each suing for half of the damages. They are suing together for the total
damages. Therefore they should be joined in the same cause of action.
Handling multiple parties
When the plaintiffs are suing for something different, however, their claims should be
in separate causes of action.
For example, suppose that James and Bertha Menge, husband and wife, are both
injured in the same automobile accident and wish to sue the driver of the other
vehicle.
In such a case they are suing for different things.
He is suing for his injuries, and she is suing for her injuries. This would therefore
have two separate causes of action. However, the two causes of action would be in
one plaint.
When there is some common factual or legal basis among the various causes of
action, they can be joined in one plaint.
Every plaint filed in an action contains a demand for relief from the court, often called
a prayer.
Courts have the power two different types of relief, money damages and equitable
relief.
Money damage usually means the award of money to the plaintiff as compensation
for some loss.

 Equitable relief, involves the court ordering the defendant to do something or to stop
doing something.
Demand for Relief
These damages are known as compensatory damages as they compensate the
plaintiffs for a loss they have sustained.
They may be referred by other names depending on the kind of suit, for example in
personal injury suits they may be known as special damages out of pocket expense,
e.g., doctors bills, loss of earnings, or general damages - pain and suffering, loss of
use of a limb or disfigurement caused by a scar.
Money damages
Sometimes the money damages would be in form of punitive or exemplary
damages.
These are meant to punish the defendant and are awarded only when the defendant
has committed some extremely offensive act.
In the course of the suit, the parties will inevitably incur substantial expenses, or
costs.
These can include filing fees, process server fees, deposition fees, and expert witness
fees.
Costs are not included in compiling the plaintiffs damages.
If the plaintiff wins the lawsuit, he will generally be awarded certain costs in addition
to the actual damages.
However, should the defendant win the case, he will be awarded his costs from the
plaintiff.
One element that is usually not included in the list of recoverable costs (unless the
lawsuit is based on a contract that specifically provides for the payment thereof) are
the advocates fees.
Parties are expected to pay their own advocates fees.
Some legal disputes cannot be settled by an award of money damages.
For example, suppose Max sells Fred his business.
As part of the sales agreement, Max agrees not to open a competing business within a
50km radius for a period of two years.
However, two months after the sale, Max opens a competing business across the street
from Fred.
As a result, Freds business income substantially decreases. Although the money
damages might compensate Fred for his past loss, if Max continues in business Fred
will continue to lose money.

Equitable relief
Fred would therefore prefer that the court order Max to close down his competing
business.
Such an order would be known as equitable relief.
A plaint may combine a request for equitable relief and money damages.
Some of the more common types of equitable relief are:
Specific performance, rescission, restitution, declaratory relief, quiet title and
injunction.
In most courts, substantial time elapses between the filing of a plaint and the actual
trial in that case.
When injunctive relief is the primary object of a suit, the plaintiff often requests some
immediate provisional remedy from the court as soon as a plaint is filed.
Provisional remedies usually include a temporary restraining order, which usually
compels the defendant to stop certain conduct immediately.
Provisional remedies
This order will remain in effect for a very short time, usually until a hearing can be
scheduled in court.
This hearing is for arguments from either side in support or against the temporary
restraining ordeer to remain in effect until the main trial or to be removed.
Should the court decide to keep the restraining order in effect, it will issue a
preliminary injunction, an order remains in effect until the trial, at which time the
injunction would become permanent if the plaintiff proves his case.
SAMPLE
REPUBLIC OF KENYA
IN THE.MAGISTRATE/HIGH COURT AT..
CIVIL CASE NO.. OF 2016

ABCD EFG.PLAINTIFF
VERSUS
HIJK LMN.DEFENDANT

PLAINT

SMALL CLAIMS/FAST TRACK /MULTI-TRACK

1. The plaintiff is (description). his/her/its address for service for purposes of this
suit shall be c/o..
2. The defendant is a (description)..
On or about the"On or about July 11, 1994, Defendant drove his

vehicle negligently and without due care on or about the corner of

Sunset and Vine Streets..."

on or about

1. adverb approximately, in the general time frame, in the immediate vicinity of, in the
neighborrood of, more or less, somewhere about
2. The plaintiff further avers.
3. Despite demand and notice of intention to sue having been given the defendant has
failed, neglected and or refused to make good the plaintiffs claim thereby rendering
the institution of this suit inevitable.
4. The plaintiff avers that there is no other suit pending and there have been no previous
proceedings in any court between the plaintiff and the defendant over the same subject
matter.
5. The cause of action arose within Nairobi within the jurisdiction of this court.
REASONS WHEREFORE the plaintiff prays for judgment against the defendant for:a)
b) Costs of the suit
c) Interests of a & b
d) Any other relief this honorable court may be deemed fit to grant in the circumstances
herein.
Dated at Nairobi this
day of
2015
XXX THE PLAINTIFF
DRAWN AND FILED BY:ABCD
TO BE SERVED UPON
HGI