sample plaint

7/24/2019 Sample Plaint

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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

() !a"es a re#uest or de$and for so$e relief fro$ the court.

(%) &ontains a state$ent showing that the court in which it is filed has the proper

'urisdiction and enue.

1. The caption the part of the plaint that identifies the court in which the plaint is filed,

the na$es of the plaintiffs and defendants, the title of the docu$ent and trac" (see

*igure +1).

The choice of the case trac" is deter$ined by the parties fro$ either s$all trac", fast

trac" or $ultitrac".(-. r.1)

Format

REPUBLIC OF KENYA

IN THE RESIDENT MAGISTRATES COURT AT NAIROBI

MILIMANI COMMERCIAL COURTS

CIVIL SUIT NO OF !"#$

%FAST TRACK&

'OHN (HITE HEAD))))))))))))))PLAINTIFF

*VERSUS*

KEY NORTH HEAR)))).......DEFENDANT

PLAINT

*igure +1 The court, designation of the parties, title of docu$ent and trac"

2. The +o,- a description of the parties, factual basis for the lawsuit, and a description of

the loss or da$ages incurred.

. The pra-.r a re#uest for so$e relief or re$edy fro$ the court.

%. /tate$ents showing proper 'urisdiction and enue.

+. The /0+/cription and1.ri2ication the signature of the adocate filing the docu$ent, the

date, and plaintiff0s state$ent (1.ri2-in3 a22i,a1it), under penalty of per'ury, that the

contents of the plaint are true


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efore you begin to draft any plaint you should analye your case, deter$ine the

purpose of your pleading and outline the general content of your docu$ent.

/pecifically you should "now:

(i) 3ho will be na$ed as parties and how they will be na$ed

(ii) The type of clai$s or causes of action that will be included in the plaint

(iii) The type of relief you are de$anding

(i) 4ow you will show that 'urisdiction and enue are proper

() -nly when you hae done this preli$inary analysis should you begin to actually draft

a plaint.

(i) R.a4 Part- in Int.r./t

(ii) The plaintiff in any lawsuit should be the one who is entitled to the relief sought in the

plaint.

(iii) This is "nown as the r.a4 part- in int.r./t.

(i5) 4oweer, at ti$es a special relationship e5ists that creates a different situation. *or

e5a$ple, an e5ecutor $ay wish to sue on behalf of an estate, or a trustee $ay sue on

behalf of a trust, or a collection agency $ay wish to sue on a debt assigned to it for

collection.

Parti./ to t5. 4a6/0it

/tatus of a party refers to the type of entity that describes the party.

!ost co$$only a party to a lawsuit will be an indiidual, a corporation, a partnership

or other unincorporated business, or a goern$ental 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.

Stat0/

Therefore:

PARADISE FOUND7 INCDEFENDANT

In addition, within the body of the plaint you would include a paragraph describing

the status, such as the following:

The Defendant, 6787DI/9 *-;D, I;&., is and was at all ti$es herein $entioned

a corporation duly registered and e5isting under the &o$panies 7ct, &ap %aws of ?enya

@ou also need to $a"e certain that the parties na$ed in the plaint hae capacit-, or

the legal right, to sue, or be sued.

&hildren and inco$petents do not hae the capacity to pursue their own lawsuits.


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nless a general guardian has been appointed, the court will appoint a special person,

referred to as a 30ar,ian ad litem, to pursue the case on behalf of the $inor or

inco$petent.

Capacit-

9en the parents of a child cannot file a lawsuit on their child0s behalf unless they

hae been appointed as guardians by the court.

7 guardian ad litem is usually appointed at the re#uest of the parent or guardian.

The person wishing to be appointed files a $otion or a petition with the court prior to

filing any lawsuit, as"ing to be na$ed as guardian ad litem.

The following is an e5a$ple of how parties would be designated in such a case.

MARY M(ASUDI7 a minor7 +- GEORGE M(ASUDI7 5.r n.8t o2

2ri.n,)))))))))PLAINTIFF

V/

DEF CORPORATION)))))DEFENDANT

7lthough children or inco$petents cannot sue in their own na$es, they can generallybe na$ed as defendants in the plaint.

4oweer, after they are sered with the plaint they $ay be entitled to hae a guardian

appointed to represent their interests.

A corporation an, ot5.r .ntiti./

7 corporation is a ApersonB for legal purposes, including lawsuits. 7s such it has

capacity to sue and be sued in the corporate na$e. 4oweer, e5ceptions do occur. If

the corporation fails to act li"e a corporation not holding $eetings, failing to "eep

corporate assets separate fro$ personal assets, etc., and then the indiiduals behind

the corporation can be sued indiidually (piercing the corporate veil)

The directors, officers, or shareholders of a corporation will also be na$ed

indiidually as defendants if they hae personally done so$ething wrong.

7n unincorporated association, such as a partnership, does not hae legal e5istence,

separate and apart fro$ the partners.

It is proper, therefore, for such an organiation to sue and be sued in the na$e of its

$e$bers.

3hen suing a partnership or other unincorporated business entity, it is co$$on to listboth the partners0 na$es and the business na$e:


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ABOUD ALI an, MANSOUD ALI7 a partn.r/5ip7 T9A HEARTH : HOMES REAL

ESTATE CO7 ))))))))))DEFENDANTS

There are li$its which regulate the circu$stances under which a goern$ental entity

can be sued.

9en when a statute per$its the goern$ent to be sued, the law re#uires that clai$s

be filed with a goern$ental agency before actually filing suit.

Go1.rnm.nta4 A3.nci./

In such a case it will be necessary to allege in the body of the plaint that this has been

done. (-.1 r.11)

Parti./ 0/in3 2ictitio0/ nam./ If a plaintiff uses a fictitious na$e in his business, a

lawsuit that he files related to that business should identify the plaintiff by his proper

na$e.

If he wishes, the plaintiff $ay indicate that he is doing business under another na$e.

Sp.cia4 Pro+4.m/ 6it5 parti./

The plaintiff would then be identified as follows:

MARTIN KACHUMBARI7 ALIAS)AKA)T9A KACHUMBARI DINER

))))))))PLAINTIFF

3hen the defendant is doing business under a fictitious na$e, the true na$e of theparty $ay be un"nown to you when you are preparing the plaint.

@ou can underta"e the re#uisite due diligence but you $ay be unable to gather

accurate infor$ation.

It is therefore necessary to identify the defendant in the plaint by the fictitious na$e.

In such a case, when the true na$e of the defendant or defendants is deter$ined, the

plaint can generally be a$ended.

-rder 1, rule C, &iil 6rocedure 8ules, 21

This ter$ refers to defendants whose ery identity is un"nown.

*ictitiously na$ed defendants are co$$only na$ed in plaints to coer a situation in

which a new defendant is discoered after the statute of li$itations has run.

In such a case the adocate argues that the plaint was filed against the newly

discoered defendant within the statute of li$itations, he was 'ust referred to by an

incorrect na$e.

The adocate then tries to a$end the plaint to AcorrectB the na$e.

Fictitio0/ D.2.n,ant/


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The &iil 6rocedure 8ules allow plaintiffs to na$e a newly discoered defendant

een after the statute of li$itations has run as long as the new party had receied

notice that the lawsuit has been filed within the ti$e allowed for serice, would not be

unduly pre'udiced, and "new that but for a $ista"e, he or she would hae been na$ed

as a party in the original suit.

In such a case, the date of filing against the new party Arelates bac"B to the original

filing date.

-rder 1, rules E, C, 1(2) &iil 6rocedure 8ules, 21

Foinder that is allowed but not re#uired is "nown as p.rmi//i1. ;oin,.r and 'oinder

that is re#uired is "nown as comp04/or- ;oin,.r.

The rules regarding per$issie 'oinder, 'oinder of parties that is allowed but not

re#uired, are usually ery liberal.

'oinin3 M04tip4. Parti./

6arties are per$itted to be 'oined together in a plaint as plaintiffs or defendants as

long as there is so$e co$$on #uestion of law or fact and the clai$ arises out of the

sa$e occurrence or series of occurrences. (-.1 r.1 H )

Generally, if the court cannot resole the $atter without the presence of a party, then

'oinder of the party is re#uired. (-.1 r.1(2))

*or e5a$ple, suppose that title to a certain piece of real property is in #uestion, and

four different indiiduals are clai$ing ownership.

If one of those parties files a lawsuit to deter$ine ownership ("nown as quiet title

action), he would hae to na$e the other three clai$ants as defendants.

The court could not deter$ine ownership unless all four parties were before the court.

3hen parties are re#uired to be 'oined in the lawsuit, they are so$eti$es referred to

as in,i/p.n/a+4. parti./

9en when it appears that 'oinder of certain parties is essential to the case, if

'urisdiction oer one of the parties is i$possible to obtain, the court $ay allow the

$atter to proceed without that party being na$ed.

7t ti$es the nu$ber of potential plaintiffs in an action beco$es too nu$erous to be

practical.

3hen this happens, a r.pr./.ntati1. /0itcan result.

7 representatie suit occurs when one or $ore parties who share a clai$ with a

$ultitude of others file a lawsuit in their own na$es and also clai$ to represent

nu$erous others in a si$ilar situation.

R.pr./.ntati1. S0it/

To $aintain a representatie suit, the party filing the lawsuit $ust usually get

per$ission fro$ the court to proceed with the action.


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If the court grants per$ission, it will also direct that all $e$bers of that class being

represented get notice of the action. -rder 1, rule


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The plaint $ust contain sufficient facts to put the defendant on notice as to why he is

being sued, this is "nown as notice pleading.

C4aim or ca0/. o2 action

The use of $ore detailed allegations in a plaint $ay hae an effect on later discoery

and disclosure rights and obligations and should be carefully considered.

*acts and not legal theories should be alleged. *or e5a$ple,

P4aint 2or Sp.ci2ic P.r2ormanc. o2 Contract to Con1.- Lan,

-n or about Dece$ber 1, 211, plaintiff and defendant entered into an agree$ent in

writing a copy of which is hereto anne5ed as 95hibit 7

In accord with the proisions of the said agree$ent plaintiff tendered to the defendant

the purchase price and re#uested a coneyance of the land, but defendant refused to

accept the tender and refused to $a"e the coneyance.

6laintiff now offers to pay the purchase price

3herefore plaintiff de$ands

(1) The defendant be re#uired specifically to perfor$ said agree$ent,

(2) Da$ages in the su$ of one hundred thousand shillings, and

() That if specific perfor$ance is not granted plaintiff hae 'udg$ent against defendant

in the su$ of shillings.

(%) 7 plaint $ay contain any nu$ber of causes of action or counts.

(+) 3heneer a cause of action arises out of the sa$e general factual situation, the rules

of pleading usually allow the$ to be 'oined in the sa$e plaint.

Han,4in3 m04tip4. c4aim/

7s a general rule, if the clai$s proide different re$edies or are proen by different

facts or eidence in the case, they should probably be separated into distinct causes of

action.

4oweer, because the rules of pleading are so liberal, if two or $ore clai$s wereco$bined into one cause of action, the court would either allow the pleading to stand

as written or allow it to be a$ended.

7 #uestion arises when a plaint contains two inconsistent causes of action.

*or e5a$ple, consider the following situation:

rian signs a contract with Dae to buy a house for ?shs.2 $illion.

efore the ti$e for the deal to close, Dae infor$s rian that he has changed his

$ind and will not sell. 7s of the date of sale, the alue of the house has increased to ?shs.2.2$illion.


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rian now has a choice.

Does he want the house, or should he $a"e Dae pay for any da$ages that he

incurred because he did not get the house (the da$ages being the difference the

purchase price and the fair $ar"et alue at the ti$e and place of sale).

If he gets the house at the original contract price, he will not hae incurred the loss of

profit in the house.

Therefore, as"ing both for specific perfor$ance of the contract and for da$ages

because it was not perfor$ed is inconsistent.

The rules of pleading usually allow the plaintiff to allege causes of action that are

inconsistent.

4oweer, the plaintiff will not get a 'udg$ent on both of the$.

M04tip4. p4ainti22/they should be 'oined within the sa$e cause of action if they haea 'oint clai$ or if they are suing for the sa$e thing.

*or e5a$ple, where 6aul H !argaret !bugua, husband and wife are suing for the

sa$e thing, i.e., the da$ages that they sustained in buying a none5istent plot.

They are not each suing for half of the da$ages. They are suing together for the total

da$ages. Therefore they should be 'oined in the sa$e cause of action.

Han,4in3 m04tip4. parti./

3hen the plaintiffs are suing for so$ething different, howeer, their clai$s should be

in separate causes of action.

*or e5a$ple, suppose that Fa$es and ertha !enge, husband and wife, are both

in'ured in the sa$e auto$obile accident and wish to sue the drier of the other

ehicle.

In such a case they are suing for different things.

4e is suing for his in'uries, and she is suing for her in'uries. This would therefore

hae two separate causes of action. 4oweer, the two causes of action would be in

one plaint.

3hen there is so$e co$$on factual or legal basis a$ong the arious causes of

action, they can be 'oined in one plaint.

9ery plaint filed in an action contains a de$and for relief fro$ the court, often called

aprayer.

&ourts hae the power two different types of relief, $oney da$ages and e#uitable

relief.

!oney da$age usually $eans the award of $oney to the plaintiff as co$pensation

for so$e loss.


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9#uitable relief, inoles the court ordering the defendant to do so$ething or to stop

doing so$ething.

D.man, 2or R.4i.2

These da$ages are "nown as comp.n/ator- ,ama3./ as they co$pensate the

plaintiffs for a loss they hae sustained.

They $ay be referred by other na$es depending on the "ind of suit, for e5a$ple in

personal in'ury suits they $ay be "nown asspecial damages out of poc"et e5pense,

e.g., doctors bills, loss of earnings, or general damages pain and suffering, loss of

use of a li$b or disfigure$ent caused by a scar.

Mon.- ,ama3./

/o$eti$es the $oney da$ages would be in for$ of p0niti1. or .8.mp4ar-

,ama3./.

These are $eant to punish the defendant and are awarded only when the defendant

has co$$itted so$e e5tre$ely offensie act.

In the course of the suit, the parties will ineitably incur substantial e5penses, or

costs.

These can include filing fees, process serer fees, deposition fees, and e5pert witness

fees.

&osts are not included in co$piling the plaintiff0s da$ages.

If the plaintiff wins the lawsuit, he will generally be awarded certain costs in addition

to the actual da$ages.

4oweer, should the defendant win the case, he will be awarded his costs fro$ the

plaintiff.

-ne ele$ent that is usually not included in the list of recoerable costs (unless the

lawsuit is based on a contract that specifically proides for the pay$ent thereof) are

the adocate0s fees.

6arties are e5pected to pay their own adocate0s fees.

/o$e legal disputes cannot be settled by an award of $oney da$ages.

*or e5a$ple, suppose !a5 sells *red his business.

7s part of the sales agree$ent, !a5 agrees not to open a co$peting business within a

+"$ radius for a period of two years.

4oweer, two $onths after the sale, !a5 opens a co$peting business across the street

fro$ *red.

7s a result, *red0s business inco$e substantially decreases. 7lthough the $oney

da$ages $ight co$pensate *red for his past loss, if !a5 continues in business *red

will continue to lose $oney.


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E


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SMALL CLAIMS9FAST TRACK 9MULTI*TRACK

1. The plaintiff is (description). hisJherJits address for serice for purposes of this

suit shall be cJo..

2. The defendant is a (description)..

-n 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 a+o0t1. adverbappro5i$ately,in the general ti$e fra$e,in the i$$ediate icinity of, in the

neighborrood of, $ore or less,so$ewhere about

2. The plaintiff further aers.

. Despite de$and and notice of intention to sue haing been gien the defendant has

failed, neglected and or refused to $a"e good the plaintiff0s clai$ thereby rendering

the institution of this suit ineitable.

4. The plaintiff aers that there is no other suit pending and there hae been no preious

proceedings in any court between the plaintiff and the defendant oer the sa$e sub'ect

$atter.

5. The cause of action arose within ;airobi within the 'urisdiction of this court.

REASONS (HEREFOREthe plaintiff prays for 'udg$ent against the defendant for:

a)

b) &osts of the suitc) Interests of a H b

d) 7ny other relief this honorable court $ay be dee$ed fit to grant in the circu$stances

herein.

Dated at ;airobi this day of 21+

>>> THE PLAINTIFF

DRA(N AND FILED BY?*

ABCD

TO BE SERVED UPON

HGI
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sample plaint

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