A Further Affidavit is Permissible

Frequently, especially in applications for summary judgment under Order 35 Rule 1 of the Civil Procedure Rules, the need to add to the supporting affidavit arises. At those times, depending on whether or not the Respondent has filled a reply, a supplementary affidavit or a further affidavit is what is undoubtedly needed. The question is when you need leave to file the same and when to file without.

Recently, a Defendant in a case I was handling raised the ground of inferiority of the goods supplied whose liquidated value we were seeking a summary judgment. It happened that we filed the motion for summary judgment on the same day with the Defence and therefore we could not reasonably cater for it in the supporting affidavit. We thus filled a further affidavit to traverse the claim of inferiority for the purpose of the summary application. Replying to the defence was open to us but not very appealing as to do so would have created the impression that the Defence on record had triable issues when what we were urging in the summary application was that it was a sham.

Whether the court may receive more than one affidavit

The Defendant's counsel raised an objection to the further affidavit arguing that we had not sought leave of the court to file it. The court was therefore called upon to decide the issue raised by the objection, viz. whether more affidavits than one may be received by the Court under Order XXXV rule 1 (2) of Civil Procedure Rules.

For generality, I think the same question can be asked of the Order L Rule 3 of the Civil Procedure Rules. This is the omnibus rule on adducing affidavit evidence in civil applications in Kenya. The general issue would thus become: whether more affidavits than one may be received by the court in applications under the Civil Procedure Rules

The law on the number of Affidavits in Motions

Generally, Order L Rule 3 permits one to adduce evidence by an affidavit in any motion before the court. On summary judgments, Order XXXV Rule 1(2) provides for adduction of evidence to support an application for summary judgment under the rule. The sub-rule (2) states that:

"The application shall be made by motion supported by an affidavit either of the Plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed."

Without more, the literal meaning of the above rules of procedure that that only 'an affidavit' meaning a single affidavit is permitted. Importantly, nothing in the rules prohibit expressly or by implication filling of more than one affidavit i.e. a further or supplemental affidavit. But the literal meaning alluded to above is clearly not the law for reasons that are easy to render apparent.

For starters, Order L Rule 16(2) permits filing of a supplementary affidavit with leave of the court. On the face of this sub-rule, it applies where the Respondent has already filed a reply and the Applicant would wish to respond. So that, whenever the replying affidavit or grounds of opposition in response to an application raise issues that deserve to be responded to, the proper way to go would be to seek the court's leave to file a supplementary affidavit. Leave will be granted unless the Respondent shows that it stands to be prejudiced in a way that cannot be compensated.

But the again there does not seem to be a bar against the court receiving more than one affidavit. This is especially the case where the Respondent is yet to enter a reply to a motion. For support the foregoing contention, I have in mind the qualification afforded by section 3 (4) of the Interpretation and General Provisions Act, Cap. 2 Laws of Kenya.

Elevate not rules of court procedure to a fetish

Here, it is important to bear in mind two things. First is the view of Rawal, J concerning Cap. 2 of the Law of Kenya in Dilshad Hassanali Manji-v-Hassanali Vasanji Manji Nrb (Law Courts) HCCC No. 8 of 2005. She stated that the Interpretation and General Provision Act is a special statute to provide the guidance to the courts on the interpretation of other statutory provisions.

The second and last thing to note is the court's attitude to rules of procedure and the need not to elevate them to a fetish. Osiemo J in Panian Ole Mutua & 3 Others-v-Registered Group Representatives Kimana Tikondo Group Ranch Civil Case 522 of 2006 expressed this approach he stated:

"The rules of procedure are meant to facilitate the administration of justice in a fair, orderly and predictable manner, not to fetter or choke it."

A singular in written law imply a plural

Turning to the provisions of the Interpretation and General Provisions Act on the matter at hand, section 3(4) makes it the law that in statutes the singular for stands for the plural. The effect then is the where the rules of procedure read 'affidavit' the same should also be taken to stand for 'affidavits' as well. The Section 3(4) of Cap. 2 states:

"3(4) In every written law, except where a contrary intention appears, words and expressions in the singular include the plural and words and expressions in the plural include the singular."

We then turn to apply this to Order L Rule 3 and Order XXXV Rule 1(2). The latter, for the record, states that:

"The application shall be made by motion supported by an affidavit either of the Plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed."

The effect of the combination of the above two provisions of the law is that the singular 'affidavit' in Rule 1(2) does not imply that one cannot file several affidavits as there is nothing expressly prohibiting that. There is also no denying that Civil Procedure Rules are 'written law' and therefore section 3(4) of Cap. 2 above apply to them with equal force. Written law is defined in section 3(1) of the Interpretation and General Provisions Act:

"written law" means—

(a) an Act of Parliament for the time being in force;

(b) an applied law; or

(c) any subsidiary legislation for the time being in force;

Case where more than one affidavit were held proper

In Surgipharm Ltd-v-Aksher Pharmacy Ltd & Another [2004] eKLR a further affidavit filed without leave in support of a summary application was under objection. The issue before the court was the one under scrutiny here. That is, whether more affidavits than one may be received by the Court under Order XXXV rule 1 (2) of Civil Procedure Rules.

The counsel objecting to the further affidavit cited the rule 1(2) for his submission that since the rule provided for an affidavit, there could be no room for supplemental or further affidavit once an application has been filed. The object of the submission was to persuade the court to reject the Plaintiff's further Affidavit.

The court concluded that the Counsel could not be right in his submission. It cited the provisions of section 3(4) of the Interpretation and General Provisions Act (Cap. 2 Laws of Kenya) as the reason for the conclusion. The court held that there was no contrary intention in Order XXXV rule 1(2) as to the number of affidavits the Plaintiff or for that matter the Defendant in reply thereto may file. The court thus rejected the contention by the Defendant's counsel objecting the further affidavit.

Conclusion

In a nutshell, a party does not need leave to file nor is there a limitation on the number of further affidavit(s) or supplemental affidavit(s) whether under Rule 1(2) of Order 35 or Order L Rule 3. But where a reply to the application has been filed, it seems that leave to file a supplementary affidavit may be needed. If anything prudence dictates that leave be obtained to avoid unnecessary delay and having the client's application challenged on a matter that could have easily been avoided.

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Paul Musyimi is a Freelance Legal Research Consultant based in Kenya. Lawyers may contact him for legal research solutions at pmusyimi@gmail.com

A brief Introduction to Exemplary Damages

By  PAUL N. MUSYIMI

Introduction

This article is prompted by the not-so-easy-to-explain inclination, very frequent with advocates who rely on precedents in drafting, of praying for orders for exemplary damages in virtually every suit. Recently, I encountered exemplary damages in a suit for compensation on ground of redundancy and unfair dismissal, as one of the prayers for exemplary damages against the Defendant. The Defendant had allegedly failed to give proper notice to the Plaintiffs' trade union and the government of their eminent dismissal of redundancy. On that ground, and in a suit whose cause of action was breach of express and implied terms of an employment contract, the Plaintiff sought exemplary damages ostensibly to punish the Plaintiff and forewarn other like-minded employers against flouting the regulations on pre-redundancy criteria in Kenya.

Definition of exemplary damages

Exemplary damages are damages which are punitive in nature and generally intended to teach the defendant that tort does not pay. They are awarded in addition to compensatory damages. Thus the plaintiff receives a windfall over and above his true loss. It has been said that the distinction between aggravated and exemplary damages that aggravated damages are awarded for the conduct that shocks the plaintiff and exemplary damages are awarded for conduct that shocks the court.

Conditions for award of exemplary damages

As per Halsbury's Laws of England 4^th Edition Volume 12 Para. 1190 at page 474, exemplary damages may only be awarded in actions for torts. Exemplary damages may not be awarded in actions for breach of contracts as was held in Kenny-v-Preen [1962] 3 All ER 814, CA.

Where exemplary damages provided for by statute

At one time it was believed that exemplary damages could be awarded in any case where the defendant had behaved outrageously. However, in Rookes v Barnard [1964] AC 1129; [1964] 1 ALL ER 367, the House of Lords held that except where is specifically authorized by a statute exemplary damages should only be awarded in two categories of cases.

Against oppressive, arbitrary or unconstitutional action by government servant

One, in case of a tort occasioned by oppressive, arbitrary or unconstitutional action by servant of the government. In Cassell & Co. Ltd v Broome [1972] AC 1027; [1972] 1 All ER 801, the House of Lords applied the approach in Rookes v Barnard where Lord Reid said that this category did not extend to oppressive action by a private corporation or individual.

For tort calculated by Defendant to yield profit

The second case in which exemplary damages may be available is where the defendant has calculated by him to make a profit for himself by committing the tort even after paying compensatory damage. In Cassell & Co Ltd v. Broome (supra), the court was of the view that the damages came into this category. The defendant published a book which made defamatory statements about the plaintiff. The book was published in the face of threats by the plaintiff that he would bring a libel action against the defendants. The plaintiff was awarded 15,000 pounds compensatory damages and 25,000 exemplary damages. It was held that the plaintiff was entitled to exemplary damages because the defendant had calculated that it was worth running the risk of the book being held to be libelous because of the profits which they thought they would make from the sales of the book and the attendant publicity. But it should be noted that the mere fact that a tort is committed with the intention of making a profit is not sufficient of itself to bring the case within this category. There must be some evidence that the defendant decided that there was a profit to be made out of the wrongdoing.

Scarcity of case law on exemplary damages in Kenya

There are few direct cases in Kenyan jurisprudence dealing with exemplary damages. To be specific, only two local reported cases make mention of exemplary damages. In the case of Gitau-v-Attorney General [1990] KLR 13, the learned judge found that the actions of two police officers who wrongfully assaulted, battered and falsely imprisoned the Plaintiff were oppressive, arbitrary and unconstitutional and therefore fell in the first category of the instances where exemplary damages may be awarded. That it is, the police officer's actions were oppressive, arbitrary and unconstitutional action by the servants of the Government and therefore warranted an award of exemplary damages. The court awarded Kshs. 10,000 as exemplary damages over and above the awarded general damages of Kshs. 25,000.

In Biwott-v-Mbuguss & Another (No. 2) [2002] 1 KLR 321, a defamation/libel suit, exemplary damages had been sought as an alternative to aggravated damages. It appears the Plaintiff's counsel in the case chose to prefer/insist on aggravated damages in his submissions which were eventually awarded.

Conclusion

There is no doubt exemplary damages are strict remedy be sought only in those rare occasions when the settled conditions for its award are met. The following are the key points to remember when dealing with award or prayer for exemplary damages. Firstly, the cause of action must be a tort claim (remember exemplary damages are only applicable in tort and never in claims for breach of contract). Secondly, exemplary damages will be granted upon proof of oppressive, arbitrary and unconstitutional action by a servant of the Government but a private corporation. In addition, exemplary damages are also awarded where it is shown that the plaintiff had calculated to gain profit through the tort. Lastly, exemplary damages will be be readily awarded where they are expressly provided for by a statute. 

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Paul Ndore Musyimi is a Freelance Legal Research Consultant based in Kenya. Lawyers may contact him for legal research solutions at pmusyimi@gmail.com

How to register Trade Marks in Kenya

By Paul Musyimi

 

Trade marks in Kenya are registered with the Kenya Industrial Property Institute (KIPI). KIPI is the registrar of trade marks in Kenya.

 

It is open to a person intending to register a trademark to do it himself or use a registered agent. However, foreign applicants, whether individuals or companies, can only register trade marks through registered agents.

 

The procedure for registering a trade mark is as follows.

 

1.                  Search

 

You contact a search to find out whether the trademark is registrable or not and also whether there exists in the records a trademark which could be confused with the intended trade mark.

 

2.                  Application for registration

 

Once the search is successful, an application is made to KIPI accompanied by seven (7) representations of the mark. The application should be accompanied by address of the applicant.

 

3.                  Examination

 

There are three stages in examination of a Trade Mark. First is the formal examination which occurs upon presentation of the application. This involves close checking to find out whether the right documents are filed, whether the forms included are properly filled, and the required fees is appropriately paid. Then a search may be done where one had not been carried out at the preliminary stage. Lastly, a substantive examination of the proposed mark is undertaken to determine whether the mark is distinctive enough for registration. Incidentally, a trade mark is a distinctive mark that identifies one business, product or services from another of its kind.

 

4.                  Advertisement

 

If the examiner finds no grounds to refuse a trade mark application, then the trade mark is advertised in the Industrial Property Journal or Kenya gazette to allow any interested party an opportunity to raise objections to the pending application prior to registration.

 

5.                  Opposition

 

Any aggrieved party with valid grounds may oppose the registration of a trade mark advertised in the Kenya Gazette. An opposition must be made within 60 days of the publication date by filing a statement of opposition. The Registrar makes a ruling on the fate of the process after hearing both parties. Any party dissatisfied with the ruling may file an appeal to the High Court of Kenya.

 

6.                  Registration

 

If there is no opposition to the trade mark after the statutory 60 days period from the date of advertisement, or if an opposition has been decided in the applicants favour, the application will be registered and the Institute will issue a Certificate of Registration and enter the registration in the Trade Marks Register.

 

7.                  Policing of Trade marks

 

It is upon the owner of the trade mark to monitor the market and to institute legal proceedings in case of infringement of a registered trademark. Infringement may involve using the mark without permission or using a deceptively similar trademark likely to cause confusion.

 

 

8.         Assignments

 

A trade mark is a form of property, although intangible, and usually entails considerable value acquired through goodwill. It can be sold, given or otherwise transferred to another party through a transaction referred to as an assignment. A Registered trade mark is assignable and transmissible either in connection with the goodwill of a business or not. This has to be done in conjunction with the trade marks office which only comes in to record and effect the changes of the transaction in its register.

 

9.        Licenses

A person other than the proprietor of a trade mark may be registered as a registered user thereof in respect of all or any of the goods in respect of which it is registered or in respect of services with the provision of which he is connected in the course of business (otherwise than as a defensive trade mark) and either with or without conditions or restrictions.

 

10.        Applicable Fees

The applicable fees for registration of trade marks may change from time to time and thus its best to consult KIPI for a quotation. The applicable fees listed below are merely meant to be a guide on the votes under which fees is payable. The current rates may be different. Also, different fees apply in the case of applications by foreign individuals and companies.

(a)                Search fees & preliminary advice………...Kshs, 2,000/=

(b)               Application Fee per Trade mark……….....Kshs, 3,000/=

(c)                Registration Fees (if accepted)…………....Kshs, 1.500/=

(d)               Advertisement Fees (Gazette)………….....Kshs, 3,000/= (Minimum)

(e)                Amendment of Application…………….....Kshs, 800/=

11.         Period of protection

A trade mark registration is valid for ten (10) years from the date of application and the registrar will notify the owner within six months of the imminent expiry of the concerned trademark. The owner is entitled to renew the trade mark every ten years.

12.        Registering Trade Marks Abroad

The foregoing procedure secures the trade mark in the Kenyan market only. In other words, it accords protection in Kenya only. If one is selling goods or offering services in other countries, he/she should consider registering the trademark in each of those countries.

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Paul Musyimi is a Freelance Legal Research Consultant based in Kenya. Lawyers may contact him for legal research solutions at pmusyimi@gmail.com

Tips on Getting to the Top of the In-house Heap

By Peter Scott

 

 

Disillusioned with private practice? Want to get off the treadmill of having to record ever more chargeable hours?

 

Want a life? Then why not move in-house and leave all that frustration behind!

 

It’s a temptation that’s been luring law firms’ beleaguered masses for nearly a generation now.

 

Even though the grass is always proverbially greener in the other guy’s yard, you will need to appreciate, before you make the jump, that there is a huge “culture” gap between being in a professional partnership and being part of a corporate environment.

 

If, as a lawyer in a partnership, you still cannot accept being told what to do by those who manage the firm, how are you going to survive in a corporate hierarchy where everyone knows their position in the pecking order? To successfully make that transformation from law firm to law department, you will have to understand and accept the notion of accountability, and swallow a certain subservience, as the price of your progress up the slippery corporate ladder.

 

Be clear as to you goals before you make your move. Ask yourself, “What do I really want to be – a technical lawyer or a top decision-making manager?” In-house life is all about ambition and determination to get to the top because, as a mere technician, you are unlikely to get very far.

 

Do not be misled into thinking that life in-house will be easy. Many corporate counsel actually work longer and harder, and under more stress, than their counterparts in private practice because corporations are intensely value-driven organizations.

 

Due Diligence

 

Above all, carefully choose your company. Big is not necessarily beautiful. So:

 

·         Given recent events in the corporate world, check out the company and, in particular, its auditors and accounting practices. As an in-house lawyer, you can all too easily become very close to the epicentre of the not-so-kosher action.   

·         Avoid new technology companies.

·         Check out the fate of your predecessors in the law department.

·         Find out how long the head of legal has to go before retirement. You could be waiting a very long time and with no guarantee that you will ever step into his or her shoes.

·         Evaluate the career paths that exist for lawyers within the company. You will be hired to carry out a specific function and there may be no possibility of advancement. Find out if any lawyers have made it to senior management positions in the past. It could be a career dead end for you.

 

Adapt to Survive

 

Having decided that this is what you really want to do, and having then made the jump, you will quickly need to adapt to the particular culture of your company and become a fully integrated member of the corporate team. Do not allow yourself to remain aloof and to develop a reputation internally as “one of those lawyers who think they’re above it all.”

 

Corporations can be very political, so start by developing a political nose and take your time to ascertain where in the company the power really resides. Then make sure you keep close to it. Always look after the people who really matter and give them the service they demand, and more.

 

Take steps to make yourself nearly indispensable, and always the first person they call when they have a problem. In this way, you can become a part of the very hub of decision-making in the company.

 

Dealing with external lawyers

Take a hard look at the company’s external legal advisors and make sure you are getting best value out of them. Companies are performance-driven and value-driven, and you will be judged on how well you and they perform. So:

 

• Do not favor your former firm out of emotional ties or friendships if they cannot perform to your exacting standards. Make sure your external lawyers never fail to perform because it is you who will be held responsible.

 

• Carry out a review of your external lawyers from time to time to keep them on their toes. Only retain those firms that have shown they can consistently perform to your satisfaction. But be careful not to make enemies when dealing with those external firms who may have long-established relationships with, and the ear of, the people who matter in your company.

 

• Demand open-book accounting and total transparency from your external law firms when it comes to fees and fee structures so you obtain best value every time.

 

Value for the company’s money

There is one additional area in which you should tread carefully. In this economic climate, many companies are looking to cut costs, and that includes reviewing the cost effectiveness of their internal legal resource. Make sure as an in-house counsel that you and your legal team provide the company value for its money. Otherwise, you’re on thin ice.

 

What companies look for

The in-house lawyers who are most likely to prove their worth in today’s corporate climate are the ones who add value, time and time again, by dispensing wisdom, experience, and common sense, particularly at the strategic level. This is what many companies are really looking for and those who succeed in this are usually the ones who rise to the top.

 

Editor’s Note: Peter Scott is a solicitor and a Director of Horwath Consulting in London. He advises law firms from the United States, United Kingdom, and elsewhere on strategic, management, and implementation issues. The article was adapted from his website: http://www.peterscottconsult.co.uk