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ORDER OF PROCEEDINGS



The place and mode of trial is usually determined by type of trial and proceedings.  If you make an application by summons, then you will be heard in Chambers. 

Procedure 1 – where defendant elects not to call evidence

The Plaintiff or advocate makes an opening speech referred to sometimes as an opening statement.  After that the plaintiff witnesses are called, examined cross examined and re-examined.  After that the plaintiff or his advocate sums up the case by making a closing speech.  After that the Defendant states their case and makes a closing speech.

Procedure 2 – Defence elects to call evidence

Advocates for the plaintiff makes an opening statement, the plaintiff witnesses are called, examined, cross-examined and re-examined.  After that the defendant’s counsel makes an opening statement.  After that the defendant’s witnesses are called, examined, cross examined and re examined.  After the Plaintiff or his advocate sums up the case by making the closing speech.  Thereafter the defendant sums up the case and makes a closing speech also.   The Defendant can reply to the plaintiff’s closing.  The reply only covers new ground.

In cases where there are many defendants and many plaintiffs the same procedure will apply but if the defendants are represented separately, then the counsels will separately make their submissions separately by order of appearance.  Cross examination of witness will also follow the order in which they proceed.  Co plaintiffs will normally be represented by the same counsel.

Who has the right to begin the case? 

ORDER 18 Rule 1 and 2 the  plaintiff  shall  have  the  right  to  begin  unless  the  court otherwise orders—
(1) On  the day  fixed  for  the hearing of  the  suit, or on any other day  to which  the  hearing  is  adjourned,  the  party  having  the  right  to begin  shall  state  his  case  and  produce  his  evidence  in  support  of  the issues which he is bound to prove.
(2)  The  other  party  shall  then  state  his  case  and  produce  his evidence,  and may  then  address  the  court  generally  on  the  case. The party beginning may then reply.
(3) After  the party beginning has produced his evidence  then,  if the  other  party  has  not  produced  and  announces  that  he  does  not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he  cites  a  case  or  cases  the  party  beginning  shall  have  the  right  to address the court at the conclusion of the address of the other party forthe purpose of observing on the case or cases cited.
(4)  The  court  may  in  its  discretion  limit  the  time  allowed  for addresses by the parties or their advocates.

Where there is a dispute as to who should begin, the court should give directions but ordinarily the court will direct the party who has most issues to prove to begin.  The rule is he who alleges must prove. 

Where the defendant has the right to begin, the procedure will be the same as if it was the Plaintiff beginning.  Where in the process of making final submissions to the court, where people cite authorities which had not been referred to earlier the court will give the other party time to look at the authorities being cited, the purpose is to be fair.

OPENING STATEMENT

What should it contain

It is usually a brief outline of either the defendant’s or the plaintiff’s case, usually it will state the facts simply.  They will be telling the court the witness that they intend to call and will be giving a preview of what they intend to prove.  Usually this is an introduction to the entire trial and it is important that it is interesting, logical, believable and in a narrative form.   Usually it is not necessary for the Judge to record the opening speeches unless one raises a point of law.  It is important that a note should be made in the court record that an opening speech was made.  an opening speech must not contain evidence.  It should just be limited to a statement of basic facts that the parties intend to prove or rely on as defence.

After you make the opening statements, you move on to examination in chief.


EXAMINATION OF WITNESSES

 Examination in Chief

When you call a witness there are 3 stages
1.    Examination in chief
2.    Cross Examination
3.    Re examination

Examination in Chief

The object of examination in chief is to elicit facts that are favourable to the case of the party calling the witness.  In other words the exam in chief is when you question your first witness.  Sometimes the plaintiffs themselves.  Normally they will be giving evidence that will be favourable to their case.  It is governed by two rules
(a)          The witness cannot be asked leading questions – these are questions that suggest the answer expected of that person.  For example you cannot ask Was your business running into financial difficulties last year?  You should ask what was the financial position of your business last year?  The art of knowing whether a question is leading is learnt with experience.
(b)          The examination must not be conducted in an attacking manner.  Usually at cross examination you can attack but you cannot do that to your own witness.  If your witness turns hostile, you can ask the court to declare the witness a hostile witness and once the court does that, you can then attack the witness.

When a witness is declared hostile
(i)                    You will be allowed to impeach the creditability of that witness;
(ii)                  You can ask leading questions
(iii)                 You can ask them questions that touch on their truthfulness and even their past character and previous convictions. 
(iv)                 You can also be able to examine on certain issues by leave of the judge e.g. you can question the hostile witness on statements they made previously which is inconsistent with their present testimony.   This can help to show that the witne3ss is giving conflicting evidence which the court is allowed to resolve when they are taking the evidence into account. 
You must take witness statements.  If they give evidence inconsistent with the statement that they signed, you can impeach their credibility and produce the witness statement.

CROSS EXAMINATION

There are 3 aims of cross examination

1.         To elicit further facts which are favourable to the cross examining party;
2.         To test and if possible cast doubt on the evidence given by the witness in chief;
3.         To impeach the credibility of the witness.

Cross examination – the scope is wide one is allowed to ask leading questions, question a witness on previous testimony, it is not restricted in any way.  A good Advocate will never forget the virtue of courtesy.

RE EXAMINATION

Once you have examined your witness in chief, the other side cross-examines your witness.  The re examination is a kind of retrieval process.   This is when you try to heal the wounds that were opened up in cross examination.  Most important, re-examination is strictly restricted to matters that arose at cross examination.  The court also has powers to ask a witness questions for the purpose of clarifying points.


SUBMISSION OF NO CASE TO ANSWER

The defendant may make a defence of no case to answer after the submission by the plaintiff.  The Judge must decide whether there is any evidence that would justify putting the defendants on their defence.  Usually if the submission of no case to answer is not upheld, the case continues.  If the court says that there is no case to answer, that ruling can be challenged on Appeal.

TAKING DOWN EVIDENCE

Usually evidence of witnesses is taken orally in open court under the direction of a Magistrate or Judge, it is normally written down in narrative form i.e. not question and answer form but where there is special reason, the evidence may be in question and answer form.  The rule is that the court may on its motion taken down a particular question verbatim and the answer verbatim.  Order 18 rule 2  gives the court the power to determine the mode of production of evidence and also provides for limitation of time addresses by the parties (submissions) while rule 4 introduces the use of technology in recording evidence.

Where either party objects to a question and the court allows it, then the court should record the question, the answer and the objection and the name of the person raising the objection and if they make a ruling they must also record the ruling of the objection raised.   Tact is required as you may find that.   Sometimes if you object too much you can irritate the Judge.  Object only for important things.

In the course of taking evidence, the court may also record remarks made by witnesses while under examination and normally after taking down the evidence the judge will sign that evidence.  The courts can also record remarks and demeanour of a witness.

Evidence de bene esse – Order 18 Rule 9 provides that the witness can apply for taking of evidence before trial.  It is by chamber summons and anytime before institution of a suit.  The purpose of this evidence is to allow the witness to testify before departure i.e. if they are dying.  The evidence is taken in the normal way and then signed and forms part of the evidence in that suit,  there must be an need for the evidence to be taken.   It is designed to preserve evidence before a witness departs or dies.

Affidavit Evidence Order 19 – an affidavit which based on information and does not state the sources of that information or based on belief and does not state the basis of belief then it is defective.  In respect of interlocutory applications parties may be allowed to state matters based on information provided the sources are stated and those based on belief provided the grounds of belief are stated.  Article by Pheroze Nowrojee on the Defective Affidavit.  

Life Insurance Corporation of India v Panesa [1967] EA 614
Riddles Barger v Robson [1955] EA 375
CaspairLtd v Harry Candy [1962] EA 414
Camille v Merali [1966] EA 411
Mayers vs Akira Ranch [1974] EA 169

PROSECUTION & ADJOURNMENT OF SUITS

Public policy documents that business of the court should be conducted expeditiously.  It is of great importance and in the interest of justice that action should be brought to trial and finalised with minimum delay. Since no adjournment is contemplated once the memorandum under Order 11 rule 7(4)(1) is signed , Order 17 Rule 1 requires that hearing of cases should be on a day to day basis until all witnesses have testified. Standing over matters generally or “SOG” is no longer allowed. However this is not always possible and that is why the court may adjourn a hearing on its own motion or upon application by either of the parties where good course is shown. court when granting an adjournment, if at all, must fix a date for further action in court.  

Habib V Rajput  the plaintiff case came up for hearing, the advocates applied for adjournment on the grounds that their client was absent for some unexplained reasons.  The respondent opposed saying that his witnesses were already in court and had come from very far away and it was costing a few thousand shillings to keep them there per day.  Was the plaintiff’s reason good cause to adjourn.  The court ruled that no sufficient cause was shown and the application for adjournment was dismissed.

Since the Court is  in control of the proceedings, the provisions by the parties to apply for dismissal for want of prosecution nolonger exists and failure to comply with directions given under this order may lead to dismissal of the suit.


CLOSING SPEECH

You are telling the court that you have presented your evidence, that you have proved that so and so is liable and you will also be telling the court that this is the law and if applied to the facts of your case then the law should support your prayers.  You will be telling the court of past decisions that support your case.  You will reconcile the facts, the law and past decisions that support your case.  You make your case in the closing statements.

Facts √† Law   √†Applicable authorities

The court has to reach a decision.

 
 
 

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