This FAQ is instructive on how to file a law suit in Kenyan Courts; and this comes up a lot especially with both local and foreign clients  seeking to recover debt from defaulting debtors especially in the commercial arena. I strongly advise anyone contemplating to go it alone in court without legal representation not to do so as in simple terms you are likely to lose without a knowledgeable advocate on your side. This FAQ paints a relatively straightforward view of the court process to recover a civil debt in Kenya, but often there are more complex issues at play  so it is in your best interests to hire a lawyer to handle these claims for you.

Legal Debt Recovery in Court by your Advocate/Lawyer

1. Often times, it is advisable to obtain a legal opinion on the case from the lawyer to give you an idea of the strength of your legal claim and how persuasive your evidence is and likelihood of winning the court case vis a vis the person you are claiming against.
2. The first step is to send a demand letter to the debtor client, giving them around 10-14 days to comply with your demand for satisfaction of the civil debt and during this period the lawyer contacts the Debtor directly to attempt settlement.
3. If the demand is not satisfied, we file suit at the court. Note that some courts such as those in Nairobi have introduced an electronic case management system characterized by e-filing on the Judiciary of Kenya website; while in other courts you still need to file physically at the appropriate court registry. It is crucial to file the matter in the court of appropriate jurisdiction both in terms of geographical location as well as pecuniary jurisdiction.
4. Once the matter goes to court, we now have a plaintiff and a defendant. To explain briefly the Plaintiff is the complainant, the Creditor who is owed by the debtor; and the Plaintiff institutes a civil claim for debt recovery against a person in Kenya. The debtor who is sued is the defendant.
5. The general instrument the Plaintiff uses to file a legal claim is a plaint accompanied by witness statements and annexures. Nevertheless, it is good to note that there are other specialized applications by which one can institute the claim in court depending on the particular circumstances of the dispute.
6. Court filing fees are payable depending on the value of the claim up to a maximum of 70,000 Kenya Shillings which is roughly USD 700. The Registry Staff at whichever Subordinate or High Court, applying the Schedule of Fees, will advise on the precise filing fees once they have assessed the plaint.
7. Kenya has an adversarial legal system whereby parties are pitted against each other and the judge or magistrate is an impartial arbiter who determines but does not investigate the case himself/herself. The Civil Procedure Act and the Evidence Act are the main laws guiding civil law suits or proceedings in Kenya.
8. Thereafter you serve the court documents on the Defendant and serve the summons to enter appearance on the Defendant. If the Defendant files a Defence, the matter will go through pre-trial modalities and then the suit shall be set down for hearing. At the hearing in court, witnesses are heard, cross examined and re-examined.
9. Thereafter parties file written submissions setting out how the law applies to the facts in question (relying both on statute and case law) which may be highlighted in court if the court so directs.  Here is where having an astute lawyer will make you – the client- more likely to win your case.
10. Thereafter judgement is made and often costs of the suit are payable by the losing party.
11. Once judgement is made, the judgement creditor shall extract the court order which must be obeyed and cannot be ignored as they are an exercise of judicial power by the Kenyan Courts. Thereafter if the client wins and the debtor fails to pay, the court order is enforceable by attaching the assets of the judgement debtor.