To sue or not to sue?

By John Kariuki

A man dismissed his friends’ counsel of an out of court settlement and successfully sued a cyclist who had led him to a road mishap. Though the villagers had their own version of events, the court ruled in his favour.

But over the next few months, a succession of events left him perplexed. The cyclist did his homework and discovered that the litigant had a business of supplying local schools with stationery. The cyclist used his networks in the school boards and community affairs and these tenders were never renewed when they ended.

Further, the cyclist had interests in a local quarry where the litigant would source building stones and sand for a construction business that he ran. Through the unions, the defendant influenced a change in the conditions of sale and the litigant had to seek alternative quarries at an extra cost.

And the cascade of cancelled business began in earnest, reducing the litigant’s networks dramatically. This misfortune did not even spare his wife who had a flourishing baking and card printing business. She would often be allowed to market her wares to other parents over all local school functions. But after the case, the school administrators banned her from even speaking to other parents. And when the true cost of the case became unbearable, the litigant relocated his businesses to a different town.

pride

A litigious culture has taken root in Kenya, but often some people sue as a matter of blind personal and family pride, rather than any merit of their cases. Yet others institute legal proceedings largely to make a social statement by hiring the swankiest lawyers in town.

In some instances, even clan elders or the chief and his court could sort out many issues that land in law courts. But in because people are always in a hurry to seek redress, they overlook some vital steps and end up losing their hard earned finances.

But with a little legal education and common sense, people can easily guard themselves against losing colossal personal finances in the course of litigation.

obey the law

Legal experts say the first thing to do is simply to obey the law. One should always negotiate for a settlement before he or she is sued to avoid more costs that would accrue if the case goes on to final determination in court.

Ms Priscah Nyota, a Nairobi based lawyer, singles out the lack of preliminary research by would-be litigants as a major cause of loss of money.

“Many cases require one to research before suing in order to obtain documentary or other evidence, and to get all the relevant witnesses that will support his or her case,” she says. Nyota adds that time and money can be saved if litigants do this beforehand because an advocate will charge more if they have to assist one collect evidence, and a court will dismiss one’s case in the absence of proper evidence.

“Advocates charge some extra money to cover for their traveling and subsistence,” says Nyota.

proper research

She advises people who are acting in person (without an advocate) to do proper research regarding the courts’ jurisdiction, for example, if they deal only with financial, family and children’s affairs and so on before instituting suits.

“A lot of money is wasted in the transfer of suits from one court to another or to file fresh suits where earlier ones have been dismissed for lack of a court’s jurisdiction,” she says. In addition, she urges people to know the court’s procedures like the attendance dates, how to file fresh applications, or suit when their cases have been dismissed and so on. She also points out that it is prudent to obtain a legal opinion from an advocate before one enters into a legally binding transaction.

“He or she will assist one in knowing whether his or her claims are legally competent and so avoid filing frivolous suits in court, which are always dismissed with the litigant paying costs to the other party,” says Ms Nyota.

Nyota says that one should know where to sue different types of cases, because there are tribunals that deal with specific issues and normal courts cannot entertain such issues if brought before them. “For example, issues about land boundary disputes are dealt with by the Land Disputes Tribunal, and ownership of land is often arbitrated by the High Court,” she says.

wrong forum

If the issue is taken before the wrong forum, it will be dismissed.

Nyota advises people to pay their fines and costs immediately to avoid interest accruing or their property being attached and sold or being committed to civil jail if courts give judgment against them and they have no wish to appeal against such judgment.

Often there is no need for people to engage more than one advocate in one case as this costs money. He advises people to choose their advocate wisely and avoid changing them midstream, as this is always expensive. An advocate is entitled to his or her fees whether or not the outcome of a case pleases his or her client.