INTRODUCTION
It is crucial to draft pleadings in court that are persuasive, short, and simple. Pleadings ought to speak for themselves. As a litigant, one must be wary of the laws applicable and procedure of different courts so as to avoid embarrassment and dismissal of their cases simply because of poor drafting skills.
In the case of James Ndung’u Kero v Chief Land Registrar, Director Of Survey & Attorney General (Environment & Land Case E046 of 2021) [2022] KEELC 1446 (KLR), the learned Justice F. Nyagaka J rendered his ruling stating the importance of properly drafted pleadings and the need to follow the requisite procedure in enjoining interested parties. In particular, the court laid out the purpose of and the proper manner in which grounds of opposition and a supporting affidavit should be drafted.
This case involved a land dispute where the plaintiff despite being the owner of the land the defendants were on the verge of evicting him yet that parcel of land was his matrimonial home. The plaintiff prayed to be declared the bona fide owner of the parcel of land.
Upon consideration by the court the following orders were made:
- Some pleadings and actions of some parties were so bad that it pained the court when going through them and it wished that they were never filed or done respectively. The court was utterly disappointed that a qualified lawyer was drafting pleadings in a manner calling for academic reform in all Kenyan law schools.
- The grounds of the application filed in court were not clear for the court to understand. This pained the court to take more time to identify the prayers that would be granted if so.
- The supporting evidence in the affidavit of the plaintiff was improper. The language used was a mix of first and third person and the facts were dissimilar. This became another grave concern for the court to understand the facts of the case. The introductory paragraph fell short on who exactly is the plaintiff in that case.
- The affidavit was incurably defective in form, not even article 159 (2)(d) of the Constitution could cure it. The court attempted to breathe as much oxygen into it, using the oxygen principle, so as to look at the merits of the application.
- The prayer that sought for the applicant to be declared as the bona fide (good faith) registered owner of the land was couched in the manner of a final prayer warranting a final order. The plaintiff prayed for final orders to be declared as the registered owner of the parcel of land before the case was heard and determined.
- In order to be enjoined as an interested party in a case one must adequately satisfy that there is sufficient reason to be part of that case It is therefore not a matter of right. You have to show what prejudice or loss you will suffer if you are not a party.
- Some of the grounds of opposition were not grounds of opposition properly so called, they too set out explanations of facts.
- The respondent failed to prove that the court lacked jurisdiction to determine the case. This further proved laxity and poor preparation in drafting pleadings.
- Both the application and the grounds of opposition did not help the court root the serious issues of this case. The court found that there was no issue to be meaningfully considered. The prayers sought would only be meaningful when the court was to make a final determination and deliver a judgment.
The Application was entirely dismissed with costs.
CONCLUSION
In light of the above, it is very important to note that the court’s time is very precious. Parties ought to be cautious not to abuse the court process and remain vigilant by sharpening their skills. This will save us from embarrassment and give way to the clearance of the backlog of cases.
Ruth Rotich Advocate of the High Court of Kenya, Member of the Young Lawyers Committee Law Society of Kenya; Owner of Legal Podcast WAKILI GUMZO, Human Rights Activist and an Academic Scholar
