Most businesses chasing an unpaid invoice assume the only route through the courts is a full trial: pleadings, discovery, a hearing date many months out, witnesses. For a large category of debts, that assumption is wrong. Where the amount owed is fixed and the debtor has no real defence, Kenya’s Civil Procedure Rules let a creditor bypass trial entirely and get judgment in weeks rather than years. This article explains how that procedure works, what it demands of a demand letter, and where it does not apply.
The Legal Basis: Order 36 of the Civil Procedure Rules
Order 36 of the Civil Procedure Rules, 2010 sets out Kenya’s summary judgment procedure. Rule 1 allows a plaintiff to apply for judgment, without a full hearing, in any suit seeking a liquidated demand, with or without interest, once the defendant has entered appearance but has not filed a defence. The application must be supported by an affidavit, from the plaintiff or someone able to swear positively to the facts, verifying the cause of action and the amount claimed, and the defendant must be given at least seven days’ notice of it. This is a materially faster track than an ordinary suit, precisely because it is built for cases where there is nothing genuinely in dispute except whether the defendant will pay.
What Counts as a Liquidated Demand
The procedure only works for a liquidated demand, meaning a claim for a specific, ascertained sum rather than one requiring the court to assess damages. An unpaid invoice for a fixed amount, a loan balance, or a sum due under a settled account are the classic examples. A claim for unliquidated damages, such as a breach of contract claim where the loss still needs to be quantified, falls outside Order 36 and must proceed as an ordinary suit. Getting this classification right at the outset matters: filing under Order 36 for a claim that is not genuinely liquidated invites exactly the kind of procedural argument that defeats the speed advantage the rule is meant to offer.
How the Defendant Can Resist Judgment
Rule 2 allows the defendant to show cause, by affidavit, oral evidence, or otherwise, why leave to defend the suit should be granted. This is a genuine safeguard, not a formality: a defendant who can point to an arguable dispute over the debt, a set-off, or a defect in the claim is entitled to have the matter tried in the ordinary way. Where the defence set up applies only to part of the claim, or part of the amount is effectively admitted, rule 5 allows the court to enter judgment for the undisputed portion while the remainder goes to trial. If leave to defend is granted, rule 4 requires the defendant to file an actual defence within fourteen days, so leave to defend is not itself an indefinite delay tactic. A defendant who does not attend the hearing of the application at all can apply under rule 10 to have judgment set aside or varied, but only on terms the court considers just, which usually means promptly and with a credible explanation.
The Undefended Alternative: Judgment Without Appearance at All
Order 36 addresses debtors who appear but do not defend. A different, even faster provision covers debtors who do not engage at all. Section 25 of the Civil Procedure Act allows the court to pronounce judgment without hearing the case where the plaint claims a liquidated demand and the defendant has either not entered appearance or, having entered appearance, has failed to file a defence within the prescribed time. Combined, sections 25 and Order 36 mean that a creditor with a genuinely undisputed, fixed-sum debt has two realistic paths to judgment that avoid a contested trial: default judgment where the debtor disengages entirely, and summary judgment where the debtor appears but cannot show a real defence.
Interest and the Real Function of the Demand Letter
Section 26 of the Civil Procedure Act gives the court discretion to award interest on a money decree, both for the period before judgment and from judgment until payment. A well-drafted demand letter does real legal work here beyond signalling intent to sue: it fixes the date from which a defendant was formally put on notice of the debt and the consequences of non-payment, which is the kind of detail a court weighs when exercising its discretion on pre-judgment interest and costs. A demand letter that states the exact sum owed, the basis for it, a reasonable deadline to pay, and the intention to proceed to court without further notice does more to support a later Order 36 application than a vague reminder that money is owed. It also creates the paper trail that supports the supporting affidavit Order 36 itself requires.
Limitation: The Six-Year Clock
Section 4(1)(a) of the Limitation of Actions Act bars an action founded on contract from being brought more than six years after the cause of action accrued. For a straightforward unpaid invoice, that clock generally starts running from the date payment fell due. Businesses that let old receivables sit unpursued for years risk losing the ability to sue for them altogether, regardless of how strong the underlying claim is. Sending a timely demand letter and, where necessary, filing suit before the six-year mark is not just good collections practice, it is what preserves the legal claim itself.
Where This Procedure Does Not Fit
Order 36 suits a fixed, genuinely undisputed sum owed by a solvent, identifiable debtor. It is the wrong tool, or at best incomplete, elsewhere: where a corporate debtor appears unable to pay at all, a statutory demand and winding-up petition may apply more pressure than a judgment that still needs enforcing; where the debtor may dissipate assets before judgment, a freezing order must be sought urgently rather than awaiting an Order 36 hearing; and where the money is proceeds of crime rather than an ordinary debt, asset forfeiture follows an entirely different statutory route. Choosing the wrong procedure wastes the time advantage summary judgment offers.
How We Can Help
Clay & Associates Advocates pursues debt recovery for businesses across sectors, from drafting the initial demand letter through to enforcement of judgment. Where the debtor is a company that appears unable to pay, our guide to using winding-up petitions as a recovery lever covers that alternative route, and our analysis of freezing a debtor’s assets before judgment addresses cases where dissipation is a real risk. Contact our Litigation & Dispute Resolution practice to discuss recovering what you are owed.
Sources: The Civil Procedure Act, sections 25 and 26; The Civil Procedure Rules, 2010, Order 36, rules 1 to 10; The Limitation of Actions Act, section 4.
Frequently asked questions
What is a liquidated demand?
A claim for a specific, ascertained sum of money, such as an unpaid invoice or loan balance, as opposed to a claim for damages that still needs to be assessed by the court. Only liquidated demands qualify for Order 36 summary judgment.
How fast is summary judgment compared to an ordinary suit?
An Order 36 application can be heard on as little as seven days’ notice to the defendant, and if no real defence is shown, judgment follows without a full trial. An ordinary suit involving pleadings, discovery and a trial typically takes substantially longer.
Can a defendant delay indefinitely by asking for leave to defend?
No. If leave to defend is granted, the defendant must file an actual defence within fourteen days unless the court orders otherwise, and the case then proceeds on its merits rather than remaining open-ended.
How long do I have to sue on an unpaid debt in Kenya?
Six years from the date the cause of action accrued, under section 4(1)(a) of the Limitation of Actions Act, for an action founded on contract. Waiting past that point generally bars the claim regardless of its merits.
