NOTICE OF INTENTION TO SUE

THE DEMAND LETTER

Demand and Notice of intention
to sue
 A demand letter is a formal notice demanding
that the addressee perform a legal obligation,
such as rectifying a problem, paying a sum of
money or honouring a contractual commitment,
on specific terms and within a specified time
 The letter gives the recipient a chance to
perform the obligation without being taken to
court
Scope of the demand letter
 It is a letter sent to the person against whom a
grievance is raised
 It is sent before the commencement of the suit
 The letter is intended to elicit a payment or
compliance from the part of the prospective
defendant
 It serves to inform the adversary of a pending
claim
 The adversary is given a time-frame within which
a response is required
 A demand letter may be written by the person
seeking redress, or by a legal representative on
that person’s behalf
 A copy is made and the original must be sent in a
way that provides proof of delivery
 It can be sent by registered mail
 It can also be served by a registered legal clerk
Purpose of a demand letter
 The purpose of a demand letter and notices prior
to litigation is to afford both parties an
opportunity to avoid embarking on unnecessary
litigation or incurring additional costs, especially
within the context of our overburdened judiciary
and the reality of a constricted economy.
 It also serves as notice to the other party, that
there is an issue against them
Demand letter mandatory
 In most types of legal proceedings, especially
civil suits guided by the Civil Procedure Rules,
2010, a demand letter is mandatory
 Where it is pleaded a demand is required to be
made as a matter of law. (O3, r2(d))
 Where it is excluded, a party may not be able to
claim for costs in the suit
 Section 27(1) of the Civil Procedure Act gives the
court discretion to award costs of and incidental
to the suit, to the party it deems fit.
 Where the court in its finding concludes that a
demand or notice of intention to sue was not
issued, the plaintiff may be denied costs for
denying the defendant an opportunity to settle
the claim out of court.
Reasons for making formal
demand
 To avoid incurring additional costs of suit should the
claim be admitted by the other party
 To avoid suits that may be vexatious or brought out
of malice.
 To give notice of intention to right a wrong against a
legal right
Contents of a demand letter
 A date, the recipient’s contact information, and
 The authority to act for the claimant
 A summary of the matter in issue
 A demand for a specific relief or payment
 A deadline by which the matter must be settled
 Consequences of non-adherence to the demand
of claim
 The term “demand” stated in the body of the
letter to direct the recipient to act accordingly
What should be included in a
demand letter?
 ‘…a clear intimation that payment is
required…it must be of a peremptory
character and unconditional…’
Re Colonial Finance, Mortgage & Investment &
Guarantee Corporation Limited (1905) 6
S.R.N.S.W. 6
 Under the Law Society of Kenya Digest of
Professional Conduct and Etiquette (1982 Edn
Revised 2000) on Paragraph 19, the period a
party must normally be given to respond to a
letter of demand:
 7 days, where debtor resides in the same town as
advocate,
 Not less than 10 days, where he resides in a
different town in Kenya,
 15 days, where he resides outside East Africa
Note:
 A demand letter should be signed by an
advocate.
 It is a document that is chargeable under the
Advocates (Remuneration) Order, 2009 and
therefore attracts the prohibition u/ss 34 & 35
cap 16, i.e., not to be drawn by an unqualified
person, or remuneration thereof accepted by an
unqualified person.
 Further, signing in the name of the firm is not
sufficient as it is not safe – it may lay the
demand letter open to challenge as not being
given either by the party or by an advocate as his
representative on his behalf.
Singh v Munshi Ram (1937) 4 EACA 9
What should not be included in
a demand letter?
 A threat that criminal proceedings would be
initiated against the debtor in event of non-
payment.
Khanbhai v O’Swald (1933) 15 KLR 53
 Letter of demand may not demand from the
debtor the costs of the advocate giving notice
– there is both a statutory and professional
bar to making such a demand
 See, Rule 13, Advocates (Practice) Rules
subsidiary legislation to the Advocates Act, cap
16, and
 the Law Society of Kenya Digest of Professional
Conduct and Etiquette (1982 Edn Revised 2000)
on Paragraph 19,
 But, if subsequent to the original letter of demand,
the debtor requests to be allowed to make payment
of demand sum by installments, and these terms are
accepted, then it is permissible to add the advocate’s
costs to the principal sum owing
 This must be done at the time of accepting the
proposal of payment by installments
 This is permissible because fresh consideration is
being given by the creditor, for adding those costs to
the principal amount
Other considerations
 It must be kept in mind that the demand letter or
notice will later become highly relevant in
subsequent applications and hearings in the suit, as
well as to an assessment of the conduct of parties.
Mbogo v Shah (1968) EA 94
 Court shall order particulars of notice
Express provision is made in the Civil Procedure
Rules, 2010 for a court to order that particulars of
any notice pleaded to be supplied to the opposite
party
 Where the plaint is at variance with the demand
letter, particulars in explanation must be given
by the plaintiff
Abdulla v Esmail (1969) EA 111
Jared Benson Kangwana v Attorney-General
(unreported) HC Misc. Civil Application No. 446
of 1995
When demand letter would not
be advisable
 Anton Pillar Order
 Mareva Injunction
 Initial application for this is usually made ex
parte without notice to the defendant
 Knowledge by defendant that the application is
pending may defeat the very object which the
plaintiff is trying to achieve, through dissipation
of the subject matter of the suit, or removal of
assets of the debtor from the courts jurisdiction,
etc.
 A demand letter would obviously adversely
affect the element of surprise and thus the
efficacy of the court orders.
Without Prejudice communication
 Upon reply the person who is being claimed
against will quote the legal phrase “Without
Prejudice” to protect the sender with regard to
the contents of the letter
 See Millicent Wambui v Nairobi Botanica
Gardening Limited [2013]eKLR Cause No. 2512 of
2012
Scope of the protection
 The protection goes only insofar as protecting
the communication between parties that
genuinely attempts to resolve the disputes
between the parties per Millicent Wambui
 The doctrine protects admissions, concessions or
offers made by parties in communication
 The words ‘without prejudice’ impose upon the
communication an exclusion of use against the
party making the statement in subsequent court
proceedings.
 A party making a ‘without prejudice’ offer does
so on the basis that they reserve the right to
assert their original position, if the offer is
rejected and litigation ensues (Millicent Wambui)
 However, the ‘without prejudice’ communication
could be admissible if the issue was whether or
not the negotiation resulted in an agreed
settlement or whether the communication was
made at all – Kawamambanjo Limited v. Chase
Bank (Kenya) Limited & Anor [2014] eKLR
 Though their admissibility is not as to the
determination of their contents of the
communication but strictly to determine
whether such agreement had been reached or
the fact that such communication had been
made. (Kawamambanjo Limited)
 The communication may be expressly signed to
be on “without prejudice” basis or it may be
inferred from the circumstances in which it was
made that the parties agreed or intended it
should not be given in evidence - Guardian Bank
Limited v. Jambo Biscuits Kenya Limited [2014]
eKLR
 Therefore, the fact that such communication
does not contain the phrase “without prejudice”
does not preclude it from the privilege.
 Where there is communication pointing to
evidence of alleged violation of the Bill of Rights,
the rule of inadmissibility must be made flexible
to avoid further injustice being committed. Al
Yusra Restaurant Limited v. Kenya Conference of
Catholic Bishops & another [2014] eKLR
Further reference on “without
prejudice” communication
 Kawamambanjo Limited v. Chase Bank (Kenya)
Limited & another [2014] eKLR
 Guardian Bank Limited v. Jambo Biscuits Kenya
Limited [2014] eKLR
 Al Yusra Restaurant Limited v. Kenya Conference
of Catholic Bishops & another [2014] eKLR