Related documents
- Is amended by 24th Annual Supplement
LAWS OF KENYA
CIVIL PROCEDURE ACT
CIVIL PROCEDURE RULES
LEGAL NOTICE 151 OF 2010
- Published in Kenya Gazette Vol. CXII—No. 91 on 17 September 2010
- Commenced on 17 September 2010
- [Amended by Civil Procedure (Amendment) Rules, 2020 (Legal Notice 22 of 2020) on 28 February 2020]
- [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]
ORDER 1 - PARTIES TO SUITS
1. Who may be joined as plaintiffs [Order 1, rule 1]
All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.2. Power of court to order separate trial [Order 1, rule 2]
Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may either on the application of any party or of its own motion put the plaintiffs to their election or order separate trials or make such other order as may be expedient.3. Who may be joined as defendants [Order 1, rule 3]
All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.4. Court may give judgment for or against one or more of joint parties [Order 1, rule 4]
Judgment may be given without amendment—5. Defendant need not be interested in all relief claimed [Order 1, rule 5]
It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.6. Joinder of parties liable on same contract [Order 1, rule 6]
The plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally liable, on any one contract, including parties to bills of exchange and promissory notes.7. When plaintiff in doubt from whom redress to be sought [Order 1, rule 7]
Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.8. One person may sue or defend on behalf of all in same interest [Order 1, rule 8]
9. Misjoinder and non-joinder [Order 1, rule 9]
No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.10. Substitution and addition of parties [Order 1, rule 10]
11. Government proceedings [Order 1, rule 11]
In respect of civil proceedings by or against the Government, this Order shall have effect subject to section 12 of the Government Proceedings Act (which relates to parties to such proceedings).12. Conduct of suit [Order 1, rule 12]
The court may give the conduct of the suit to such person as it deems proper.13. Appearance of one of several plaintiffs or defendants for others [Order 1, rule 13]
14. Practice [Order 1, rule 14]
Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner.15. Notice to third and subsequent parties [Order 1, rule 15]
16. Notice to Government as third party [Order 1, rule 16]
Notwithstanding anything in rule 15, leave to issue a third party notice for service on the Government shall not be granted unless the Court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned.17. Default of appearance by third party [Order 1, rule 17]
If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the “third party”) desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice:Provided that a person so served and failing to enter an appearance within the period fixed in the notice may apply to the Court for leave to enter an appearance, and for good cause such leave may be given upon such terms, if any, as the court shall think fit.18. Default of appearance by Government as third party [Order 1, rule 18]
In the case of third-party proceedings against the Government, rule 17 shall not apply unless the court so orders; and any application for such an order shall be made by chamber summons served not less than seven days before the return day.19. Judgment against third party in default [Order 1, rule 19]
Where a third party makes default in entering an appearance in the suit, or in delivering any pleading, and the defendant giving the notice suffers judgment by default, such defendant shall be entitled, after causing the satisfaction of the decree against himself to be entered upon the record, to judgment against the third party to the extent claimed in the third-party notice; the court may upon the application of the defendant pass such judgment against the third party before such defendant has satisfied the decree passed against him:Provided that it shall be lawful for the court to set aside or vary any judgment passed under this rule upon such terms as may seem just.20. No judgment against Government without leave of the Court [Order 1, rule 20]
21. Judgment after trial against third party in default [Order 1, rule 21]
22. Appearance of third party and directions [Order 1, rule 22]
If a third party enters an appearance pursuant to the third-party notice, the defendant giving the notice may apply to the court by summons in chambers for directions, and the court upon the hearing of such application may, if satisfied that there is a proper question to be tried as to the liability of the third party, order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.23. Costs [Order 1, rule 23]
The court may decide all questions of costs between a third party and the other parties to the suit, and may make such orders as to costs as the justice of the case may require.24. Defendant claiming against a co-defendant [Order 1, rule 24]
25. Procedure [Order 1, rule 25]
Applications under rules 10 and 19 may be made orally in Court or by summons in chamber.26. Parties to provide contacts [Order 1, rule 26]
ORDER 2 - PLEADINGS GENERALLY
1. Pleadings generally [Order 2, rule 1]
2. Formal requirements [Order 2, rule 2]
3. Facts not evidence, to be pleaded [Order 2, rule 3]
4. Matters which must be specifically pleaded [Order 2, rule 4]
5. Matter may be pleaded whenever arising [Order 2, rule 5]
Subject to rules 3 (1) and 6, a party may in any pleading plead any matter which has arisen at any time, whether before or since the filing of the plaint.6. Departure [Order 2, rule 6]
7. Particulars in defamation actions [Order 2, rule 7]
8. Particulars of evidence in mitigation [Order 2, rule 8]
In an action for libel or slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled at the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the court, unless at least twenty-one days before the trial he has given the plaintiff particulars of the matters on which he intends to give evidence.9. Points of law [Order 2, rule 9]
A party may by his pleading raise any point of law.10. Particulars of pleading [Order 2, rule 10]
11. Admissions and denials [Order 2, rule 11]
12. Denial by joinder of issue [Order 2, rule 12]
13. Close of pleadings [Order 2, rule 13]
The pleadings in a suit shall be closed fourteen days after service of the reply or defence to counterclaim, or, if neither is served, fourteen days after service of the defence, notwithstanding that any order or request for particulars has been made but not complied with.14. Technical objection [Order 2, rule 14]
No technical objection may be raised to any pleading on the ground of any want of form.15. Striking out pleadings [Order 2, rule 15]
16. Pleading to be signed [Order 2, rule 16]
Every pleading shall be signed by an advocate, or recognised agent (as defined by Order 9, rule 2), or by the party if he sues or defends in person.17. Proceedings in rem [Order 2, rule 17]
An application under section 25(2) of the Government Proceedings Act (Cap. 40) may be made at any time before trial or during the trial.ORDER 3 - FRAME AND INSTITUTION OF SUIT
1. Commencement of suit and case track allocation [Order 3, rule 1]
2. Documents to accompany suit [Order 3, rule 2]
All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by—3. Register of civil suits and filing [Order 3, rule 3]
4. Suit to include the whole claim [Order 3, rule 4]
5. Joinder of causes of action [Order 3, rule 5]
6. Only certain claims to be joined with a suit for recovery of immovable property [Order 3, rule 6]
No cause of action shall, except with the leave of the court, be joined with a suit for the recovery of immovable property, except—7. Claims by or against executor, administrator or heir [Order 3, rule 7]
No claim by or against an executor or administrator, as such, shall be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.8. Power of court to order separate trials [Order 3, rule 8]
Where it appears to the court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the court may either on the application of any party or of its own motion order separate trials or may make such order as may be expedient.9. Declaratory judgment [Order 3, rule 9]
No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make a binding declaration of right whether any consequential relief is or could be claimed or not.ORDER 4 - PLAINT
1. Particulars of plaint [Order 4, rule 1]
2. Money suit [Order 4, rule 2]
3. Where the subject-matter of the suit is immovable property [Order 4, rule 3]
Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it.4. Capacity of parties [Order 4, rule 4]
Where the plaintiff sues in a representative capacity the plaint shall state the capacity in which he sues and where the defendant is sued in a representative capacity the plaint shall state the capacity in which he is sued, and in both cases it shall be stated how that capacity arises.5. Defendant’s interest and liability to be shown [Order 4, rule 5]
The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.6. Statement of relief claimed [Order 4, rule 6]
Every plaint shall state specifically the relief which the plaintiff claims, either specifically or in the alternative, and it shall not be necessary to ask for costs, interest or general or other relief which may always be given as the court deems just, whether or not it could have been asked for or granted when the suit was filed; and this rule shall apply also to a defence or counterclaim.7. Relief founded on separate grounds [Order 4, rule 7]
Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be, separately and distinctly.8. Copies of plaint [Order 4, rule 8]
The plaintiff shall present as many copies of the plaint as there are defendants.9. Return of plaint [Order 4, rule 9]
ORDER 5 - ISSUE AND SERVICE OF SUMMONS
1. Issue of summons [Order 5, rule 1]
2. Duration and renewal of summons [Order 5, rule 2]
3. Service on a corporation [Order 5, rule 3]
Subject to any other written law, where the suit is against a corporation the summons may be served—4. Concurrent summons [Order 5, rule 4]
5. Delivery or transmission of summons for service [Order 5, rule 5]
6. Mode of service [Order 5, rule 6]
Service of the summons shall be made by delivering or tendering a duplicate thereof signed by the judge, or such officer as he appoints in this behalf, and sealed with the seal of the court.7. Service on several defendants [Order 5, rule 7]
Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.8. Service to be on defendant in person or on his agent [Order 5, rule 8]
9. Mode of service on the Government [Order 5, rule 9]
10. Service on agent by whom defendant carries on business [Order 5, rule 10]
11. Service on agent in charge in suits for immovable property [Order 5, rule 11]
Where, in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, it may be made on an agent of the defendant empowered to accept service or on the agent of the defendant in charge of the property.12. Service on agent or adult [Order 5, rule 12]
Where in any suit, after a reasonable number of attempts have been made to serve the defendant, and defendant cannot be found, service may be made on an agent of the defendant empowered to accept service or on any adult member of the family of the defendant who is residing with him.13. Person served to sign acknowledgment [Order 5, rule 13]
Where a duplicate of the summons is duly delivered or tendered to the defendant personally or to an agent or other person on his behalf, the defendant or such agent or other person shall be required to endorse an acknowledgment of service on the original summons:Provided that, if the court is satisfied that the defendant or such agent or other person has refused so to endorse, the court may declare the summons to have been duly served.14. Procedure when defendant refuses to accept service or cannot be found [Order 5, rule 14]
Where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or any person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, together with an affidavit of service.15. Affidavit of service [Order 5, rule 15]
16. Examination of serving officer [Order 5, rule 16]
On any allegation that a summons has not been properly served, the court may examine the serving officer on oath, or cause him to be so examined by another court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.17. Substituted service [Order 5, rule 17]
18. Service on defendant in prison [Order 5, rule 18]
Where the defendant is confined in a prison, the summons shall be served on him personally in the presence of the officer in charge of the prison.19. Service on public officers and soldiers [Order 5, rule 19]
20. Duty on person to whom the summons is sent [Order 5, rule 20]
21. Service out of Kenya [Order 5, rule 21]
Service out of Kenya of a summons or notice of a summons may be allowed by the court whenever—22. Service of other process out of the jurisdiction [Order 5, rule 22]
22A. Internationally registered and recognized courier services [Order 5, rule 22A]
22B. Electronic Mail Services (E-mail) [Order 5, rule 22B]
22C. Mobile-enabled messaging Applications [Order 5, rule 22C]
23. Service under contract [Order 5, rule 23]
Without prejudice to the other rules in this Order, where—24. Probate and marriage suits [Order 5, rule 24]
In probate, Mohammedan or Hindu marriage, divorce and succession suits, service of a summons or notice of a summons may by leave of the court be allowed out of Kenya.25. Application to be supported by evidence [Order 5, rule 25]
Every application for leave to serve such summons or notice on a defendant out of Kenya shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is not resident in Kenya or not, and the grounds on which the application is made; and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of Kenya under this Order.[L.N. 22/2020, r. 9.]26. Order to fix time for entering appearance [Order 5, rule 26]
Any order giving leave to effect such service or give such notice shall limit a time after such service or notice within which such defendant is to enter an appearance; such time to depend on the place or country where or within which the summons is to be served or the notice given.27. Service where defendant resides out of Kenya [Order 5, rule 27]
Where leave to serve a summons or notice of summons out of Kenya has been granted under rule 21, and the defendant is a Commonwealth citizen as defined in subsections (1) and (2) of section 95 of the Constitution or resides in any of the countries for the time being mentioned in subsection (3) of that section, the summons shall be served in such manner as the Court may direct.28. Notice in lieu of summons [Order 5, rule 28]
29. Service of notice of summons in a foreign country [Order 5, rule 29]
Where leave is given to serve notice of summons in a foreign country to which this rule may by order of the Chief Justice from time to time be applied, the following procedure shall be adopted—30. Extension of procedure to any order or notice [Order 5, rule 30]
The court may direct that any summons, order or notice shall be served on any party or person in a foreign country, and the procedure prescribed by rule 27, with reference to service of notice of a summons, shall apply to service of any summons, order or notice so directed to be served.31. Application to Government [Order 5, rule 31]
Rules 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 shall apply in the case of civil proceedings by the Government but shall not apply in the case of civil proceedings against the Government.ORDER – SERVICE OF FOREIGN LEGAL PROCESS IN KENYA
32. Procedure [Order 5, rule 32]
Where in any civil or commercial matter pending before a court or tribunal of a foreign country a letter of request from such court or tribunal for service on any person in Kenya of any process or citation in such matter is transmitted to the High Court, with an intimation that it is desirable that effect should be given to the same, the following procedure shall be adopted—33. General powers of the court [Order 5, rule 33]
Upon the application of the Attorney-General the court may make all such orders for substituted service or otherwise as may be necessary to give effect to rule 32.34. Request for service from foreign country [Order 5, rule 34]
Where in any civil or commercial matter pending before a court or tribunal in any foreign country with which a Convention in that behalf has been or shall be made and applied to Kenya, a request for service of any document on a person in Kenya is received by the Registrar of the High Court from the consular or other authority of such country, the following procedure shall, subject to any special provisions contained in the Convention, be adopted—ORDER 6 - APPEARANCE OF PARTIES
1. Time for appearance [Order 6, rule 1]
Where a defendant has been served with summons to appear, he shall unless some order be made by the court, file his appearance within the time prescribed in the summons.2. Mode of appearance [Order 6, rule 2]
3. Defendant’s address for service [Order 6, rule 3]
4. Irregular memorandum, address fictitious [Order 6, rule 4]
If the memorandum of appearance does not contain an address for service within Kenya it shall not be filed; and if any address given is illusory or fictitious the appearance may be set aside on the application of the plaintiff.5. Defendants appearing by same advocate [Order 6, rule 5]
If two or more defendants appear in the same suit by the same advocate and at the same time, the names of all the defendants so appearing shall be inserted in the same memorandum of appearance.6. Delivery of documents to address for service [Order 6, rule 6]
ORDER 7 - DEFENCE AND COUNTERCLAIM
1. Defence [Order 7, rule 1]
Where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service.2. Defence of tender [Order 7, rule 2]
Where in any suit a defence of tender before action is pleaded the defendant shall pay into court, in accordance with Order 27, the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into court has been made.3. Set-off and counterclaim [Order 7, rule 3]
A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.4. Set-off or counterclaim in proceedings by Government [Order 7, rule 4]
Notwithstanding anything contained in rule 2, a person shall not be entitled to avail himself of any set-off or counterclaim in any proceedings by the Government for the recovery of taxes, duties or penalties, or to avail himself in proceedings by the Government of any other nature of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.5. Documents to accompany defence or counterclaim [Order 7, rule 5]
The defence and counterclaim filed under rule 1 and 2 shall be accompanied by—6. Persons in representative capacity [Order 7, rule 6]
If either party wishes to deny the right of any other party to claim as executor or as trustee whether in bankruptcy or otherwise, or in any representative or other alleged capacity or the alleged constitution of any partnership firm, he shall deny the same specifically.7. Pleading a counterclaim [Order 7, rule 7]
Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his statement of defence, state specifically that he does so by way of counterclaim.8. Title of counterclaim [Order 7, rule 8]
Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence.9. Claim against person not party [Order 7, rule 9]
Where any such person as is mentioned in rule 8 is not a party to the suit, he shall be summoned to appear by being served with a copy of the defence, which shall be served in accordance with the rules for regulating service of summons.10. Appearance by added parties [Order 7, rule 10]
Any person not already a party to the suit who is served with a defence and counterclaim as aforesaid must appear thereto as if he had been served with a summons to appear in the suit.11. Reply to counterclaim [Order 7, rule 11]
Any person named in a defence as a party to a counterclaim thereby made may, unless some other or further order is made by the court, deliver a reply within fifteen days after service upon him of the counterclaim and shall serve a copy thereof on all parties to the suit.12. Exclusion of counterclaim [Order 7, rule 12]
Where a defendant sets up a counterclaim, if the plaintiff or any other person named in the manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent suit, he may at any time before reply, apply to the court for an order that such counterclaim may be excluded, and the court may, on the hearing of such application, make such order as shall be just.13. Discontinuance, stay or dismissal of suit [Order 7, rule 13]
If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.14. Judgment for balance [Order 7, rule 14]
Where in any suit a set-off or counterclaim is established as a defence against the plaintiff’s claim, the court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.15. Defence or set-off founded on separate grounds [Order 7, rule 15]
Where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall be stated, as far as practicable, separately and distinctly.16. New ground of defence [Order 7, rule 16]
17. Subsequent pleadings [Order 7, rule 17]
18. Filing subsequent pleadings [Order 7, rule 18]
19. Register of documents [Order 7, rule 19]
20. Service of documents [Order 7, rule 20]
Documents under this order shall be served in the manner prescribed under Order 5 of these Rules.ORDER 8 - AMENDMENT OF PLEADINGS
1. Amendment of pleading without leave [Order 8, rule 1]
2. Application for disallowance of amendment [Order 8, rule 2]
3. Amendment of pleading with leave [Order 8, rule 3]
4. Amendment of originating process [Order 8, rule 4]
Rule 3 shall have effect in relation to an originating summons, a petition and an originating notice of motion as it has effect in relation to a plaint.5. General power to amend [Order 8, rule 5]
6. Failure to amend after order [Order 8, rule 6]
Where the court has made an order giving any party leave to amend, unless that party amends within the period specified or, if no period is specified, within fourteen days, the order shall cease to have effect, without prejudice to the power of the court to extend the period.7. Mode of amendment [Order 8, rule 7]
8. Procedure [Order 8, rule 8]
The court may hear and determine an oral application made under this Order.ORDER 9 - RECOGNIZED AGENTS AND ADVOCATES
1. Applications, appearances or acts in person, by recognized agent or by advocate [Order 9, rule 1]
Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf:Provided that—2. Recognized agents [Order 9, rule 2]
The recognized agents of parties by whom such appearances, applications and acts may be made or done are—3. Service of process on recognized agent [Order 9, rule 3]
4. Agent to accept service [Order 9, rule 4]
5. Change of advocate [Order 9, rule 5]
A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.6. Service of notice of change of advocate [Order 9, rule 6]
The party giving the notice shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former advocate a copy of the notice endorsed with a memorandum stating that the notice has been duly filed in the appropriate court (naming it).7. Notice of appointment of advocate [Order 9, rule 7]
Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with the necessary modifications.8. Notice of intention to act in person [Order 9, rule 8]
9. Change to be effected by order of court or consent of parties [Order 9, rule 9]
When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—10. Procedure [Order 9, rule 10]
An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.11. Power to act in person or through new advocate [Order 9, rule 11]
The party who gives notice under rule 8 or obtains an order under rule 9 may perform the duties prescribed under this Order in person or through his new advocate.12. Removal of advocate from record at instance of another party [Order 9, rule 12]
13. Withdrawal of advocate who has ceased to act for a party [Order 9, rule 13]
ORDER 10 - CONSEQUENCE OF NON-APPEARANCE, DEFAULT OF DEFENCE AND FAILURE TO SERVE
1. Suits against infants and persons of unsound mind [Order 10, rule 1]
2. Affidavit of service upon non-appearance [Order 10, rule 2]
Where any defendant fails to appear and the plaintiff wishes to proceed against such defendant he shall file an affidavit of service of the summons unless the summons has been served by a process-server appointed by the court.3. Failure to serve [Order 10, rule 3]
Where a defendant fails to serve either the memorandum of appearance or defence within the prescribed time, the court may on its own motion or on application by the plaintiff, strike out the memorandum of appearance or the defence as the case may be and make such order as it deems fit in the circumstances.4. Judgment upon a liquidated demand [Order 10, rule 4]
5. Liquidated demand against several defendants [Order 10, rule 5]
Where the plaint makes a liquidated demand with or without some other claim, and there are several defendants of whom one or more appear and any other fails to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against any defendant failing to appear in accordance with rule 4, and execution may issue upon such judgment and decree without prejudice to the plaintiff’s right to proceed with the action against such as have appeared.6. Interlocutory judgment [Order 10, rule 6]
Where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to appear, the court shall, on request in Form No. 13 of Appendix A, enter interlocutory judgment against such defendant, and the plaintiff shall set down the suit for assessment by the court of the damages or the value of the goods and damages as the case may be.7. Interlocutory judgment where several defendants [Order 10, rule 7]
Where the plaint is drawn as mentioned in rule 6 and there are several defendants of whom one or more appear and any other fails to appear, the court shall, on request in Form No. 13 of Appendix A, enter interlocutory judgment against the defendant failing to appear, and the damages or the value of the goods and the damages, as the case may be, shall be assessed at the same time as the hearing of the suit against the other defendants, unless the court otherwise orders.8. Judgment in default against the Government [Order 10, rule 8]
No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return day.9. General rule where no appearance entered [Order 10, rule 9]
Subject to rule 4, in all suits not otherwise specifically provided for by this Order, where any party served does not appear the plaintiff may set down the suit for hearing.10. Default of defence [Order 10, rule 10]
The provisions of rules 4 to 9 inclusive shall apply with any necessary modification where any defendant has failed to file a defence.11. Setting aside judgment [Order 10, rule 11]
Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.ORDER 11 - CASE MANAGEMENT AND CONFERENCES
1. Application [Order 11, rule 1]
This Order shall apply to all suits other than suits for small claims or such other suits as the Court may order to vary the whole or any part of this Order.[L.N. 22/2020, r. 13.]2. Case Management Checklist [Order 11, rule 2]
3. Case Management Conference [Order 11, Rule 3]
4. Case Management Order [Order 11 rule 4]
ORDER 12 - HEARING AND CONSEQUENCE OF NON-ATTENDANCE
1. When neither party attends [Order 12, rule 1]
If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.2. When only plaintiff attends [Order 12, rule 2]
If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied—3. When only defendant attends [Order 12, rule 3]
4. When some only of plaintiffs attend [Order 12, rule 4]
If only some of the plaintiffs attend, the court may either proceed with the suit or make such other order as may be just.5. When some only of defendants attend [Order 12, rule 5]
If only some of the defendants attend, the court may proceed with the suit and may give such judgment as is just in respect of the defendants who have not attended.6. Effect of dismissal [Order 12, rule 6]
7. Setting aside judgment or dismissal [Order 12, rule 7]
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.ORDER 13 - ADMISSIONS
1. Notice of admission of case [Order 13, rule 1]
Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the truth of the whole or part of the case of any other party.2. Judgment on admissions [Order 13, rule 2]
Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.ORDER 14 - PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
1. Endorsements on documents admitted in evidence [Order 14, rule 1]
2. Endorsements on copies of admitted entries in books, accounts, and records [Order 14, rule 2]
3. Record of admitted and return of rejected documents [Order 14, rule 3]
4. Court may order any document to be impounded [Order 14, rule 4]
Notwithstanding anything hereinbefore contained, the court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the court for such period and subject to such conditions as the court thinks fit.5. Return of admitted documents [Order 14, rule 5]
6. Court may send for records of its own or of other Court [Order 14, rule 6]
7. Provisions as to documents applied to material objects [Order 14, rule 7]
The provisions herein contained as to documents shall, so far as may be, apply to all other material objects producible as evidence.ORDER 15 - ISSUES
1. Framing of issues [Order 15, rule 1]
2. Materials from which issues may be framed [Order 15, rule 2]
The court may frame the issues from all or any of the following materials—ORDER 16 - SUMMONING AND ATTENDANCE OF WITNESSES
1. Summons to attend to give evidence or produce documents [Order 16, rule 1]
At any time before the trial conference under Order 11 the parties may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.2. Expenses of witnesses to be paid into court on applying for summons [Order 16, rule 2]
3. Tender of expenses or notification of sum lodged [Order 16, rule 3]
The sum so paid into court shall be tendered to the person summoned at the time of serving the summons, if it can be served personally; or if the court so directs the person summoned may be notified that the sum so paid into court will be paid out to him on his attendance.4. Procedure where insufficient sum paid in. Expenses of witnesses detained more than one day [Order 16, rule 4]
5. Time, place, and purpose of attendance to be specified in summons [Order 16, rule 5]
Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy.6. Summons to produce documents [Order 16, rule 6]
Any person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.7. Power to require persons present in court to give evidence or produce document [Order 16, rule 7]
Any person present in court may be required by the court to give evidence or to produce any document there and then in his possession or power.8. Summons, how served [Order 16, rule 8]
Every summons under this Order shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order 5 as to proof of service shall apply in the case of all summonses served under this rule.9. Time for serving summons [Order 16, rule 9]
10. Procedure where witness fails to comply with summons [Order 16, rule 10]
11. If witness appears attachment, may be withdrawn [Order 16, rule 11]
Where, at any time after the attachment of his property, such person appears and satisfies the court—12. Procedure if witness fails to appear [Order 16, rule 12]
The court may, where such person does not appear, or appears but fails so to satisfy the court, impose upon him such fine as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold, or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any:Provided that, if the person whose attendance is required pays into the court the costs and fine aforesaid, the court shall order the property to be released from attachment.13. Mode of attachment [Order 16, rule 13]
The provisions with regard to the attachment and sale of property in the execution of a decree shall, so far as they are applicable, be deemed to apply to any attachment and sale under this Order as if the person whose property is so attached were a judgment-debtor.14. Duty of persons summoned to give evidence or produce document [Order 16, rule 14]
Whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it or cause it to be produced at such time and place.15. When summoned persons may depart [Order 16, rule 15]
16. Application of rules 10 to 13 [Order 16, rule 16]
The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person, who having attended in compliance with a summons, departs without lawful excuse in contravention of rule 15.17. Procedure where witness apprehended cannot give evidence or produce document [Order 16, rule 17]
Where any person arrested under a warrant is brought before the court in custody, and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and on such bail or security being given may release him, and in default of his giving such bail or security may order him to be detained in prison.18. Consequence of refusal of a party to give evidence when called on by the Court [Order 16, rule 18]
Where any party to a suit present in court refuses, without lawful excuse, when required by the court, to give evidence or produce any document there and then in his possession or power, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.19. Rules as to witnesses to apply to parties summoned [Order 16, rule 19]
Where any party to a suit is required to give evidence, or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.ORDER 17 - PROSECUTION OF SUITS
1. Hearing from day to day [Order 17, rule 1]
2. Notice to show cause why suit should not be dismissed [Order 17, rule 2]
3. Procedure if parties fail to appear on day fixed [Order 17, rule 3]
Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 12, or make such other order as it thinks fit.4. Court may proceed notwithstanding either party fails to produce evidence [Order 17, rule 4]
Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.ORDER 18 - HEARING OF SUIT AND EXAMINATION OF WITNESSES
1. Right to begin [Order 18, rule 1]
The plaintiff shall have the right to begin unless the court otherwise orders.2. Statement and production of evidence [Order 18, rule 2]
Unless the court otherwise orders—3. Witnesses to be examined in open court [Order 18, rule 3]
The evidence of the witnesses in attendance shall be taken orally in open court in the presence of and under the personal direction and superintendence of the judge.4. How evidence to be recorded [Order 18, rule 4]
The evidence of each witness shall be taken down in writing by or in the presence and under the personal direction and superintendence of the judge, not ordinarily in the form of question and answer but in that of a narrative, and when completed shall be signed by the judge:Provided that—5. Any particular question and answer may be taken down [Order 18, rule 5]
The court may, of its own motion or on the application of any party or his advocate, take down any particular question and answer, or any objection to any question, if there appears to be any special reason for so doing.6. Questions objected to and allowed by court [Order 18, rule 6]
Where any question put to a witness is objected to by a party or his advocate, and the court allows the same to be put, the judge shall take down the question, the answer, the objection, and the name of the person making it.7. Remarks on demeanour of witness [Order 18, rule 7]
The court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.8. Power to deal with evidence taken before another judge [Order 18, rule 8]
9. Power to examine witness immediately [Order 18, rule 9]
10. Court may recall and examine witness [Order 18, rule 10]
The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit.11. Power of court to inspect [Order 18, rule 11]
The court may at any stage of a suit inspect any property or thing concerning which any question may arise.ORDER 19 - AFFIDAVITS
1. Power to order any point to be proved by affidavit [Order 19, rule 1]
Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:Provided that, where it appears to the court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.2. Power to order attendance of deponent for cross-examination [Order 19, rule 2]
3. Matters to which affidavits shall be confined [Order 19, rule 3]
4. Deponent’s particulars [Order 19, rule 4]
Every affidavit shall state the description, true place of abode and postal address of the deponent, and if the deponent is a minor shall state his age.5. Manner of drawing affidavit [Order 19, rule 5]
Every affidavit shall be drawn in the first person and divided into paragraphs numbered consecutively which shall be confined as nearly as may be to a distinct portion of the subject.6. Striking out matter [Order 19, rule 6]
The court may order to be struck out from any affidavit any matter which is scandalous, irrelevant or oppressive.7. Irregularity in form of affidavit [Order 19, rule 7]
The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.8. Affidavit sworn before suit filed [Order 19, rule 8]
Unless otherwise directed by the court an affidavit shall not be rejected solely because it was sworn before the filing of the suit concerned.9. Procedure [Order 19, rule 9]
Applications under this Order may by chamber summons or orally in court.ORDER 20 - APPLICATION FOR AN ACCOUNT
1. Order for accounts [Order 20, rule 1]
Where a plaint prays for an account, or where the relief sought or the plaint involves the taking of an account, if the defendant either fails to appear or does not after appearance by affidavit or otherwise satisfy the court that there is some preliminary question to be tried, an order for the proper accounts with all necessary inquiries and directions usual in similar cases shall forthwith be made.2. Order for accounts on counterclaim [Order 20, rule 2]
A defendant to an action commenced by plaint, and who has filed a counterclaim which includes a claim for an account or a claim which necessarily involves taking an account, on—3. Procedure [Order 20, rule 3]
An application for such order as is mentioned in rule 1 and 2 shall be made by chamber summons and be supported by an affidavit when necessary filed on behalf of the plaintiff stating concisely the grounds of his claim to an account; and such application may be made at any time after the time for entering an appearance has expired.4. Orders by court [Order 20, rule 4]
On hearing of the application, the court may, unless satisfied that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order.ORDER 21 - JUDGMENT AND DECREE
1. Judgment, when pronounced [Order 21, rule 1]
In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of the trial notice of which shall be given to the parties or their advocates.Provided that where judgment is not given within sixty days the judge shall record reasons thereof copy of which shall be forwarded to the Chief Justice and shall immediately fix a date for judgment.2. Power to pronounce judgment written by another judge [Order 21, rule 2]
3. Judgment to be signed [Order 21, rule 3]
4. Contents of judgment [Order 21, rule 4]
Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.5. Court to state its decision on each issue [Order 21, rule 5]
In suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue.6. Judgment affecting registered title to land [Order 21, rule 6]
Where there is a prayer for a judgment the grant of which would result in some alteration to the title of land registered under any written law concerning the registration of title to land, a certified copy of the title shall be produced to the court before any such judgment is delivered.7. Contents of decree [Order 21, rule 7]
8. Preparation and dating of decrees and orders [Order 21, rule 8]
9. Costs [Order 21, rule 9]
9A. Party to file and serve letter as to costs [Order 21, rule 9A]
9B. Respondent may admit, partially reject or wholly reject letter [Order 21, rule 9B]
9C. Court to make determination within 14 days [Order 21, rule 9C]
9D. Court to be guided by Advocates (Remuneration) Order [Order 21, rule 9D]
10. Decree for recovery of immovable property [Order 21, rule 10]
Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and, where such property can be identified by boundaries or by numbers in a government record or survey, the decree shall specify such boundaries or numbers.11. Decree for delivery of movable property [Order 21, rule 11]
Where the suit is in respect of movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.12. Decree may direct payment by instalments [Order 21, rule 12]
13. Decree for possession and mesne profits [Order 21, rule 13]
14. Decree in administration suit [Order 21, rule 14]
15. Decree in suit for dissolution of partnership [Order 21, rule 15]
Where a suit is for the dissolution of a partnership, or the taking of partnership accounts, the court, before passing a final decree, may pass a preliminary decree, declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved, or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.16. Decree in suit for account between principal and agent [Order 21, rule 16]
In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.17. Special directions as to accounts [Order 21, rule 17]
The court may, either by the decree directing an account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matter therein contained with liberty to the parties interested to take such objection thereto as they may be advised.18. Decree in suit for partition of property or separate possession of a share [Order 21, rule 18]
Where a court passes a decree for the partition of property or for the separate possession of a share therein, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the parties interested in the property and giving such further directions as may be required.19. Decree where set-off is allowed [Order 21, rule 19]
20. Certified copies of judgment and decree to be furnished [Order 21, rule 20]
The registrar, or in the case of a subordinate court, the presiding magistrate shall upon written request made by the parties or any of them, and upon payment of requisite fees, furnish certified copies of the judgment and decree:Provided that nothing in this rule shall preclude the registrar or the presiding magistrate from furnishing such copies to any person upon sufficient cause being shown for such request.ORDER 22 - EXECUTION OF DECREES AND ORDERS
1. Modes of paying money under decree [Order 22, rule 1]
2. Payment out of court to decree-holder [Order 22, rule 2]
3. Lands situate in more than one jurisdiction [Order 22, rule 3]
Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more courts, any one of such courts may attach and sell the entire estate or tenure.4. Procedure where court desires that its own decree shall be executed by another court [Order 22, rule 4]
The court sending a decree for execution by another court shall send—5. Court receiving copies of decree to file same without proof [Order 22, rule 5]
The court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the court, for any special reasons to be recorded under the hand of the judge, requires such proof.6. Application for execution [Order 22, rule 6]
Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No. 14 of Appendix A:Provided that, where judgment in default of appearance or defence has been entered against a defendant, no execution by payment, attachment or eviction shall issue unless not less than ten days notice of the entry of judgment has been given to him either at his address for service or served on him personally, and a copy of that notice shall be filed with the first application for execution.7. Oral and written applications [Order 22, rule 7]
8. Application for attachment of movable property not in judgment-debtor’s possession [Order 22, rule 8]
Where an application is made for the attachment of any movable property belonging to a judgment-debtor, but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.9. Application for attachment of immovable property to contain certain particulars [Order 22, rule 9]
Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot—10. Power to require certified extract from Land Registries in certain cases [Order 22, rule 10]
Where an application is made for the attachment of any land which is registered in the Land Registries, the court may require the applicant to produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing, any transferable interest in the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.11. Application for execution by joint decree-holders [Order 22, rule 11]
12. Application for execution by transferee of decree [Order 22, rule 12]
Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:Provided that—13. Procedure on receiving an application for execution of decree [Order 22, rule 13]
14. Execution in case of cross-decrees [Order 22, rule 14]
15. Execution in case of cross-claims under same decree [Order 22, rule 15]
Where application is made to a court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then—16. Cross-decrees and cross-claims in mortgage suits [Order 22, rule 16]
The provisions of rules 14 and 15 shall apply when one or both of the decrees for sale is in enforcement of a mortgage or charge.17. Simultaneous execution [Order 22, rule 17]
The court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.18. Notice to show cause against execution in certain cases [Order 22, rule 18]
19. Procedure after issue of notice [Order 22, rule 19]
20. Process for execution [Order 22, rule 20]
21. Endorsement on process [Order 22, rule 21]
22. When court may stay execution [Order 22, rule 22]
23. Liability of judgment-debtor discharged [Order 22, rule 23]
No order of restitution or discharge under rule 22 shall prevent the property or person of a judgment-debtor from being retaken in execution of the decree sent for execution.24. Order of court which passed decree or of appellate court to be binding upon court applied to [Order 22, rule 24]
Any order of the court by which a decree is passed, or of such appellate court as aforesaid, in relation to the execution of such decree, shall be binding upon the court to which the decree is sent for execution.25. Stay of execution pending suit between decree-holder and judgment-debtor [Order 22, rule 25]
Where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.26. Decree for payment of money [Order 22, rule 26]
Subject to the provisions of section 38 of the Act, every decree for the payment of money, including a decree for the payment of money as an alternative to some other relief, may be executed by the detention in prison of the judgment-debtor, or by the attachment and sale of his property, or by both.27. Decree for specific movable property [Order 22, rule 27]
28. Decree for specific performance or for an injunction [Order 22, rule 28]
29. Decree for immovable property [Order 22, rule 29]
30. Decree for delivery of immovable property when in occupancy of tenant [Order 22, rule 30]
Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property and notifying the occupant in such manner as may be suitable the substance of the decree in regard to the property.31. Discretionary power to permit judgment-debtor to show cause against detention in prison [Order 22, rule 31]
32. Warrant for arrest to direct judgment-debtor to be brought up [Order 22, rule 32]
Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid.33. Subsistence allowance [Order 22, rule 33]
34. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest [Order 22, rule 34]
35. Examination of judgment-debtor as to his property [Order 22, rule 35]
Where a decree is for the payment of money, the decree- holder may apply to the court for an order that—36. Attachment in case of decree for rent, or mesne profits, or other matter [Order 22, rule 36]
Where a decree directs an inquiry as to rent or mesne profits, or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.37. Attachment of movable property other than agricultural produce, in possession of judgment-debtor [Order 22, rule 37]
Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody, or in the custody of one of his subordinates, and shall be responsible for the due custody thereof:Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once; and further that when the property seized is livestock the court may make such arrangement for the custody and maintenance thereof as it may deem sufficient.38. Attachment of agricultural produce [Order 22, rule 38]
Where the property to be attached is agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment—39. Provisions as to agricultural produce under attachment [Order 22, rule 39]
40. Attachment of share and other property not in possession of judgment-debtor [Order 22, rule 40]
41. Attachment of share in movables [Order 22, rule 41]
Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.42. Attachment of salary or allowance [Order 22, rule 42]
43. Attachment of partnership property [Order 22, rule 43]
44. Execution of decree against firm [Order 22, rule 44]
45. Attachment of negotiable instrument [Order 22, rule 45]
Where the property to be attached is a negotiable instrument not deposited in a court nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into court and held subject to further orders of the court.46. Attachment of property in custody of court [Order 22, rule 46]
Where the property to be attached is in the custody of any court, the attachment shall be made by a notice to such court requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the court from which the notice is issued:Provided that, where such property is in the custody of a court, any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment or otherwise, shall be determined by such court.47. Attachment of decree [Order 22, rule 47]
48. Attachment of immovable property [Order 22, rule 48]
49. Removal of attachment after satisfaction of decree [Order 22, rule 49]
Where—50. Determination of attachment [Order 22, rule 50]
Where any property has been attached in execution of a decree, but by reason of the decree-holder’s default the court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date and upon the dismissal of such application the attachment shall cease.51. Objection to attachment [Order 22, rule 51]
52. Stay of execution [Order 22, rule 52]
Upon receipt of a valid notice and application as provided under rule 51, the court may order a stay of the execution for not more than fourteen days and shall call upon the attaching creditor by notice in writing to intimate to the court and to all the parties in writing within seven days whether he proposes to proceed with the attachment and execution thereunder wholly or in part.53. Raising of attachment [Order 22, rule 53]
Should the attaching creditor in pursuance of a notice issued under rule 52 either fail to reply to the court and the objector within the period prescribed by the notice or intimate in writing to the court and the objector within the period prescribed by such notice that he does not propose to proceed with the execution of the attachment of the whole or of a portion of the property subject to the attachment, the court shall make an order raising the attachment as to the whole or a portion of the property subject to the attachment in accordance with the intimation received from the attaching creditor and shall make such order as to costs as it shall deem fit.54. Notice of intention to proceed [Order 22, rule 54]
If the attaching creditor proposes to proceed with the attachment pursuant to rule 52, the intimation shall be accompanied by a replying affidavit and the court shall proceed to hear the application expeditiously.55. Power to order property attached to be sold and proceeds to be paid to person entitled [Order 22, rule 55]
Any court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.56. Sale, by whom conducted and how made [Order 22, rule 56]
57. Notification of sale by public auction [Order 22, rule 57]
58. Time of sale [Order 22, rule 58]
Save in the case of property of the kind described in the proviso to rule 37, no sale hereunder shall without the consent in writing of the judgment-debtor, take place until after the expiration of at least thirty days in the case of immovable property, and of at least fifteen days in the case of movable property, calculated from the date on which the copy of the public notice has been affixed in the precincts of the court of the judge ordering the sale.59. Adjournment or stoppage of sale [Order 22, rule 59]
60. Defaulting purchaser answerable for loss on re-sale [Order 22, rule 60]
Any deficiency of price which may happen on a re-sale by reason of the purchaser’s default, and all expenses attending such re-sale, shall be certified to the court by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.61. Decree-holder not to bid for or buy property without permission [Order 22, rule 61]
62. Restriction on bidding or purchase by officers [Order 22, rule 62]
No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly bid for, acquire or attempt to acquire, any interest in the property sold.63. Negotiable instruments and shares in corporations [Order 22, rule 63]
Where the property to be sold is a negotiable instrument or a share in a corporation, the court may, instead of directing the sale to be by public auction, authorise the sale of such instrument or share through a broker.64. Sales by public auction [Order 22, rule 64]
65. Irregularity not to vitiate sale, but any person injured may sue [Order 22, rule 65]
No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation, or (if such person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.66. Delivery of movable property, debts and shares [Order 22, rule 66]
67. Vesting order in case of other property [Order 22, rule 67]
In the case of any movable property not hereinbefore provided for, the court may make an order vesting such property in the purchaser, or as he may direct, and such property shall vest accordingly.68. Sale of immovable property [Order 22, rule 68]
Sale of immovable property in execution of decrees may be ordered by any court.69. Deposit by purchaser and re-sale on default [Order 22, rule 69]
70. Payment of purchase-money [Order 22, rule 70]
71. Procedure in default of payment [Order 22, rule 71]
In default of payment within the period under rule 70, the deposit may, if the court thinks fit, after defraying the expenses of the sale, be forfeited and shall if forfeited be allocated towards satisfaction of the decree, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.72. Notification on re-sale [Order 22, rule 72]
Every re-sale of immovable property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of a fresh public notification in the manner and for the period hereinbefore prescribed for the sale.73. Bid of co-sharer to have preference [Order 22, rule 73]
Where the property sold is a share of undivided immovable property, and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.74. Application to set aside sale on deposit [Order 22, rule 74]
75. Application to set aside sale on ground of irregularity or fraud [Order 22, rule 75]
Where any immovable property has been sold in execution of a decree, the decree-holder, or any person whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it:Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.76. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest [Order 22, rule 76]
The purchaser at any such sale in execution of a decree may apply to the court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold.77. Sale, when to become absolute or be set aside [Order 22, rule 77]
78. Return of purchase-money in certain cases [Order 22, rule 78]
Where a sale of immovable property is set aside under rule 75, the purchaser shall be entitled to an order for payment of his purchase-money, with or without interest as the court may direct, against any person to whom it has been paid.79. Certificate to purchaser [Order 22, rule 79]
Where a sale of immovable property has become absolute, the court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser, and such certificate shall bear the date and the day on which the sale became absolute.80. Delivery of property in occupancy of judgment-debtor [Order 22, rule 80]
Where the immovable property sold is in the occupancy of the judgment-debtor, or of some person on his behalf, or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property, and a certificate in respect thereof has been granted under rule 79, the court shall, on the application of the purchaser, order delivery to be made by putting such purchaser, or any person whom he may appoint to receive delivery on his behalf, in possession of the property, and, if need be, by removing any person who refuses to vacate the same.81. Delivery of property in occupancy of tenant [Order 22, rule 81]
Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same, and a certificate in respect thereof has been granted under rule 79, the court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and notifying the occupant in such manner as the court may direct that the interest of the judgment-debtor has been transferred to the purchaser.82. Resistance or obstruction to possession of immovable property [Order 22, rule 82]
83. Resistance or obstruction by judgment-debtor [Order 22, rule 83]
Where the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor, or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and, where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, to be detained in prison for a period not exceeding thirty days.84. Resistance or obstruction by bona fide claimant [Order 22, rule 84]
Where the court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the court shall make such orders as it may deem just.85. Rules not applicable to transferee pendente lite [Order 22, rule 85]
Nothing in rule 84 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.86. Order conclusive subject to regular suit [Order 22, rule 86]
Any party not being a judgment-debtor against whom an order is made under rule 83 or rule 84, may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, if any, the order shall be conclusive.ORDER 23 - ATTACHMENT OF DEBTS
1. Order for the attachment of debts [Order 23, rule 1]
2. Attachment of deposits [Order 23, rule 2]
A credit in a deposit account with a bank or other financial institution shall for the purposes of this Order be a sum due or accruing and shall be attachable accordingly notwithstanding that any of the following requirements is applicable to the account and has not been complied with—3. Effect of garnishee order [Order 23, rule 3]
Service of an order that debts due to a judgment-debtor liable under a decree shall be attached, or notice thereof to the garnishee in such manner, as the court may direct, shall bind such debts in his hands.4. Execution against garnishee [Order 23, rule 4]
If the garnishee does not dispute the debt due or claimed to be due from him to the judgment-debtor, or, if he does not appear upon the day of hearing named in an order nisi, then the court may order execution against the person and goods of the garnishee to levy the amount due from him, or so much thereof as may be sufficient to satisfy the decree, together with the costs of the garnishee proceedings; and the order absolute shall be in Form No. 17 or 18 of Appendix A, as the case may require.5. Trial of liability of garnishee [Order 23, rule 5]
If the garnishee disputes his liability, the court, instead of making an order that execution be levied, may order that any issue or question necessary for determining his indebtedness be tried and determined in the manner in which an issue or question in a suit is tried or determined.6. Claim of third person [Order 23, rule 6]
Whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court may order such third person to appear, and state the nature and particulars of his claim upon such debt.7. Trial of claim of third person [Order 23, rule 7]
After hearing the allegations of any third person under such order, as in rule 6 mentioned, or of any other person who by the same or any subsequent order the court may order to appear, or in case of such third person not appearing when ordered, the court may order execution for levying the amount due from the garnishee, together with the costs of the garnishee proceedings, or order any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of such third person or make such other order as the court shall think fit.8. Payment by or execution on the garnishee is a valid discharge [Order 23, rule 8]
Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the judgment-debtor to the amount paid or levied, although such proceeding or order may be set aside or the decree reversed.9. Record of proceedings [Order 23, rule 9]
Proceedings under this Order shall be filed upon the record of the suit in which the decree sought to be enforced was obtained.10. Costs of proceedings [Order 23, rule 10]
The costs of any application for an attachment of debts and of any proceedings arising from or incidental to such application, shall be in the discretion of the court, and the costs of the decree-holder shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order, and in priority to the amount due under the decree.ORDER 24 - DEATH AND BANKRUPTCY OF PARTIES
1. No abatement by party’s death if right survives [Order 24, rule 1]
The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues.2. Procedure where one of several plaintiffs or defendants dies and right to sue survives [Order 24, rule 2]
Where there are more plaintiffs or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.3. Procedure in case of death of one of several plaintiffs or of sole plaintiff [Order 24, rule 3]
4. Procedure in case of death of one of several defendants or of sole defendant [Order 24, rule 4]
5. Determination of question as to legal representative [Order 24, rule 5]
Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff, or a deceased defendant, such question shall be determined by the court.6. When plaintiff’s bankruptcy bars suit [Order 24, rule 6]
7. Effect of abatement or dismissal [Order 24, rule 7]
8. Procedure in case of assignment before final order in suit [Order 24, rule 8]
9. Application of Order to appeals [Order 24, rule 9]
In the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.10. Application of Order to execution proceedings [Order 24, rule 10]
Nothing in rules 3, 4 and 7 shall apply to proceedings in execution of a decree or order.ORDER 25 - WITHDRAWAL, DISCONTINUANCE AND ADJUSTMENT OF SUITS
1. Withdrawal by plaintiff [Order 25, rule 1]
At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.2. Discontinuance [Order 25, rule 2]
3. Costs [Order 25, rule 3]
Upon request in writing by any defendant the registrar shall sign judgment for the costs of a suit which has been wholly discontinued, and any defendant may apply at the hearing for the costs of any part of the claim against him which has been withdrawn.4. Stay of subsequent suit [Order 25, rule 4]
If any subsequent suit shall be brought before payment of the costs of a discontinued suit, upon the same, or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs shall have been paid.5. Compromise of a suit [Order 25, rule 5]
ORDER 26 - SECURITY FOR COSTS
1. Security for costs [Order 26, rule 1]
In any suit the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party.2. Application before defence [Order 26, rule 2]
If an application for security for costs is made before a defence is filed, there shall be filed with the application an affidavit setting out the grounds of the defence together with a statement of the deponent’s belief in the truth of the facts alleged.3. Where two or more defendants [Order 26, rule 3]
Where it appears to the court that the substantial issue is which of two or more defendants is liable or what proportion of liability two or more defendants should bear no order for security for costs may be made.4. Claims by non-resident plaintiff [Order 26, rule 4]
In any suit brought by a person not residing in Kenya, if the claim is founded on a bill of exchange or other negotiable instrument or on a judgment or order of a foreign court, any order for security for costs shall be in the discretion of the court.5. Effect of failure to give security [Order 26, rule 5]
6. Investment of security [Order 26, rule 6]
ORDER 27 - PAYMENT INTO COURT AND TENDER
1. Payment into court [Order 27, rule 1]
2. Acceptance of payment [Order 27, rule 2]
3. Money remaining in court [Order 27, rule 3]
If money paid into court is not accepted in accordance with rule 2 (1) the money remaining in court shall not be paid out except by consent or in pursuance of an order of the court, which may be made at any time before, at or after the hearing of the suit; and where such an order is made the money shall not be paid out except in satisfaction of the claim or cause or causes of action in respect of which it was paid in.4. Payment into court where several defendants [Order 27, rule 4]
5. Payment into court on a counterclaim [Order 27, rule 5]
A plaintiff or other person made a defendant to a counterclaim may pay money into court in accordance with the provisions of this Order subject to any necessary modification.6. Confidentiality of payments into court [Order 27, rule 6]
7. Register of payments to be kept [Order 27, rule 7]
The registrar of every court shall maintain a register containing details of every payment into court made under this Order.8. Investment of payment [Order 27, rule 8]
9. Money paid in under order of court [Order 27, rule 9]
Money paid into court under an order of the court shall not be paid out except in pursuance of an order of the court:Provided that where before the filing of defence money has been paid into court by the defendant pursuant to an order under the provisions of Order 36, he may (unless the court shall order otherwise) by his pleading appropriate the whole or any part of such money, and any additional payment if necessary to the whole or any specified portion of the plaintiff’s claim, or if he pleads a tender, may appropriate the whole or any part of the money in court as payment into court of the money alleged to have been tendered; and the money so appropriated shall thereupon be deemed to be money paid into court pursuant to the preceding rules of this Order relating to money paid into court with a plea of tender, as the case may be, and shall be subject in all respects thereto.10. Moneys recovered by infants or persons of unsound mind [Order 27, rule 10]
ORDER 28 - COMMISSION AND REFERENCES
1. Cases in which court may issue commission to examine witnesses [Order 28, rule 1]
Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the limits of its jurisdiction who is exempted under the Act from attending the court or who is from sickness or infirmity unable to attend it.2. Where witness resides within court’s jurisdiction [Order 28, rule 2]
A commission for the examination of a person who resides within the local limits of the jurisdiction of the court issuing the same may be issued to any person whom the court thinks fit.3. Persons for whose examination commission may issue [Order 28, rule 3]
4. Request to examine witness abroad [Order 28, rule 4]
Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not in Kenya is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.5. Court to examine witness pursuant to commission [Order 28, rule 5]
Every court in Kenya receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.6. Return of commission with deposition of witness [Order 28, rule 6]
Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall form part of the record of the suit.7. Commissions to make investigations [Order 28, rule 7]
On the application of any party or of its own motion in any suit, the court may issue a commission to any person to make an investigation and report to the court for the purpose of ascertaining—8. Procedure of commissioner [Order 28, rule 8]
9. Examination of accounts by referee [Order 28, rule 9]
On the application of any party or of its own motion in any suit in which the examination of accounts is necessary or desirable, the court may refer the accounts for examination to such person as it thinks fit.10. Instructions to referee [Order 28, rule 10]
11. Partition of immovable property [Order 28, rule 11]
Where a preliminary decree for partition has been passed, the court may appoint such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.12. Procedure upon partition [Order 28, rule 12]
13. Expenses of commission to be paid into court [Order 28, rule 13]
Before issuing any commission, reference or appointment under this Order, the court may order such sum (if any) as it thinks reasonable for the expenses of the commission, reference or inquiry, to be, within a time to be fixed, paid into court by the party at whose instance or for whose benefit the commission, reference or appointment is issued.14. Powers of commissioner [Order 28, rule 14]
Any person appointed under this Order may, unless otherwise directed by the order of appointment—15. Attendance and examination of witnesses before commissioner [Order 28, rule 15]
16. Parties to appear before commissioner [Order 28, rule 16]
17. Commissions issued by foreign courts [Order 28, rule 17]
The provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by—18. Evidence in proceedings by or against the Government [Order 28, rule 18]
For the avoidance of doubt it is hereby declared that any powers exercisable by the court in regard to the taking of evidence are exercisable in civil proceedings by or against the Government as they are exercisable in proceedings between subjects.ORDER 29 - PROCEEDINGS BY OR AGAINST THE GOVERNMENT
1. Interpretation [Order 29, rule 1]
2. Rules to apply to proceedings by or against the Government [Order 29, rule 2]
3. Application for a certificate under section. 21 of the Government Proceedings Act [Order 29, rule 3]
Any application for a certificate under section 21 of the Government Proceedings Act (Cap. 40) (which relates to satisfaction of orders against the Government) shall be made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of Form Nos. 22 and 23 of Appendix A with such variations as circumstances may require.4. Attachment of debts or appointment of a receiver [Order 29, rule 4]
ORDER 30 - SUITS BY OR AGAINST FIRMS AND OTHER PERSONS CARRYING OUT BUSINESS IN NAMES OTHER THAN THEIR OWN
1. Suing of partners in name of firm [Order 30, rule 1]
Any two or more persons claiming or being liable as partners and carrying on business in Kenya may sue or be sued in the name of the firm (if any) in which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct.2. Disclosure of partners’ names [Order 30, rule 2]
3. Service [Order 30, rule 3]
4. Notice in what capacity served [Order 30, rule 4]
Where a summons is issued to a firm, and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.5. Appearance of partners [Order 30, rule 5]
Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.6. No appearance except by partners [Order 30, rule 6]
Where a summons is served in the manner provided by rule 3, upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.7. Appearance in action against firms [Order 30, rule 7]
8. Suits between firm and partners [Order 30, rule 8]
This Order shall apply to suits between a firm and one or more of the partners therein, and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and such directions given as may be just.9. Suit against persons carrying on business in name other than his own [Order 30, rule 9]
Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this Order shall apply.ORDER 31 - SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
1. Representation of beneficiaries in suits concerning property vested in trustees [Order 31, rule 1]
In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit, but the court may, if it thinks fit, order them or any of them to be made parties.2. Joinder of trustees, executors and administrators [Order 31, rule 2]
Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them:Provided that the executors who have not proved their testator’s will, and trustees, executors, and administrators outside Kenya, need not be made parties.ORDER 32 - SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
1. Minor to sue by next friend [Order 32, rule 1]
2. Where suit is instituted without next friend [Order 32, rule 2]
3. Guardian ad litem [Order 32, rule 3]
4. Who may act as next friend or be appointed guardian for the suit [Order 32, rule 4]
5. Representation of minor by next friend or guardian for the suit [Order 32, rule 5]
6. Receipt of property or money on behalf of minor [Order 32, rule 6]
7. Agreement or compromise of suit on behalf of minor [Order 32, rule 7]
8. Retirement of next friend [Order 32, rule 8]
9. Removal of next friend [Order 32, rule 9]
10. Stay of proceedings [Order 32, rule 10]
11. Retirement, removal, or death of guardian ad litem [Order 32, rule 11]
12. Procedure where minor attains majority [Order 32, rule 12]
13. Where minor co-plaintiff attaining majority desires to repudiate suit [Order 32, rule 13]
14. Unreasonable or improper suit [Order 32, rule 14]
15. Application of rules to persons of unsound mind [Order 32, rule 15]
The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.ORDER 33 - SUITS BY PAUPERS
1. Suits may be instituted by a pauper [Order 33, rule 1]
2. Contents of application [Order 33, rule 2]
Every application for permission to sue as a pauper shall contain the particulars required in regard pleadings, together with a statement that the pauper is unable to pay the fee prescribed in such suit, and the whole shall be signed in the manner prescribed for the signing of pleadings.3. Presentation of application [Order 33, rule 3]
Notwithstanding anything contained in these Rules, the application shall be presented to the court by the applicant in person unless the applicant is exempted from appearance in court by section 82 of the Act, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person.4. Examination of applicant [Order 33, rule 4]
Where the application is in proper form and duly presented the court may, if it deems fit, examine the applicant or his agent, when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.5. Rejection of application [Order 33, rule 5]
The court shall reject an application for permission to sue as a pauper—6. Notice of day for receiving evidence of applicant’s pauperism [Order 33, rule 6]
Where the court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten days’ clear notice shall be given to the opposite party) for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof.7. Procedure at hearing [Order 33, rule 7]
8. Procedure if application admitted [Order 33, rule 8]
Where the application is granted, it shall be deemed the pleading in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay any court fee.9. Dispaupering [Order 33, rule 9]
The court may, on the application of the defendant, of which seven days’ clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered—10. Costs where pauper succeeds [Order 33, rule 10]
Where the plaintiff succeeds in the suit, the court shall calculate the amount of the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the court from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.11. Procedure where pauper fails [Order 33, rule 11]
Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed because the plaintiff does not appear when the suit is called on for hearing, the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.12. Government may apply for payment of court fees [Order 33, rule 12]
The Government shall have the right at any time to apply to the court to make an order for the payment of court fees under rule 10 or rule 11.13. Government to be deemed a party [Order 33, rule 13]
All matters arising between the Government and any party to the suit under rule 10, rule 11 or rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of section 34 of the Act.14. Refusal to allow applicant to sue as pauper to bar subsequent application of like nature [Order 33, rule 14]
An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right provided that he first pays the costs (if any) incurred by the Government and by the opposite party in opposing his application for leave to sue as a pauper.15. Costs [Order 33, rule 15]
The costs of an application for permission to sue as a pauper and of an inquiry into pauperism shall be costs in the suit.16. Court fees [Order 33, rule 16]
17. Recovery of court fees from pauper [Order 33, rule 17]
In the event of a pauper plaintiff or defendant succeeding in any suit which results in a decree or order for payment to him of any sum of money from the other side, whether by way of costs or otherwise, the court may order that the court fees remitted as aforesaid or otherwise under this Order shall be a first charge on any moneys recovered or to be recovered under such decree or order.18. Procedure [Order 33, rule 18]
Applications under this Order shall be in writing addressed to the court.ORDER 34 - INTERPLEADER
1. Practice under this Order [Order 34, rule 1]
An application for relief under this Order shall be made by originating summons unless made in a pending suit in which case it shall be made by summons in the suit.2. Averments to be proved by applicant [Order 34, rule 2]
In every suit of or application by way of interpleader the applicant shall satisfy the court by way of affidavit or otherwise—3. Stay of suit [Order 34, rule 3]
If the application is made by a defendant in a suit the court may stay all further proceedings in the suit.4. Order upon summons [Order 34, rule 4]
If the claimants appear in pursuance of the summons, the court may order either that any claimant be made a defendant in any suit already commenced in respect of the subject-matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may direct which of the claimants is to be plaintiff and which defendant.5. Summary procedure [Order 34, rule 5]
The court may, with the consent of both claimants, or on the request of any claimant, if, having regard to the value of the subject-matter in dispute, it seems desirable to do so, dispose of the merits of their claims, and decide the same in a summary manner and on such terms as may be just.6. Costs and other orders [Order 34, rule 6]
The court may make all such orders as are just and reasonable as to costs and all other matters including, where appropriate, orders for the sale or disposal of the subject-matter of the dispute, and where an order for costs is in favour of the applicant the court may give him a charge over the subject-matter.7. Order upon a claimant’s failure to appear [Order 34, rule 7]
If a claimant, having been duly served with a summons calling him to appear and maintain or relinquish his claim, does not appear in pursuance of the summons, or having appeared neglects or refuses to comply with any order made after his appearance, the court may make an order declaring him and all persons claiming under him forever barred against the applicant, and persons claiming under him, but the order shall not affect the rights of the claimants as between themselves:Provided that no order shall be made against the Government under this rule except upon an application by summons served not less than seven days before the return day.8. Questions of law [Order 34, rule 8]
Where the question in issue is a question of law and no facts are disputed the court may decide the question without the trial of an issue.9. Adverse title of claimants [Order 34, rule 9]
The applicant may be granted relief notwithstanding the fact that the titles of the claimants have not a common origin but are adverse to and independent of one another.ORDER 35 - PROCEEDINGS BY AGREEMENT OF PARTIES
1. Power to state case for court’s opinion [Order 35, rule 1]
2. Where value of subject-matter must be stated [Order 35, rule 2]
Where the agreement is for the delivery of any property, or for the doing or the refraining from doing, any particular act, the estimated value of the property to be delivered, or to which the specified act has reference, shall be stated in the agreement.3. Agreement to be filed and registered as suit [Order 35, rule 3]
4. Parties to be subject to court’s jurisdiction [Order 35, rule 4]
Where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the court and shall be bound by the statements contained therein.5. Hearing and disposal of case [Order 35, rule 5]
ORDER 36 - SUMMARY PROCEDURE
1. Summary judgment [Order 36, rule 1]
2. Defendant may show cause [Order 36, rule 2]
The defendant may show either by affidavit, or by oral evidence, or otherwise that he should have leave to defend the suit.3. Application by Government [Order 36, rule 3]
4. Time for defence [Order 36, rule 4]
If a defendant is granted leave to defend he shall file his defence within fourteen days of the grant of leave unless the court otherwise orders.5. Judgment for part of claim [Order 36, rule 5]
If it appears that the defence set up in the affidavit by the defendant applies only to a part of the plaintiff’s claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to, or as is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount realised or any part thereof into court, the taxation of costs, or otherwise as the court thinks fit, and the defendant may be allowed to defend as to the residue of the plaintiff’s claim.6. Procedure where more than one defendant [Order 36, rule 6]
If it appears to the court that any defendant has a good defence to, or ought to be permitted to defend the suit, and that any other defendant has not a good defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to judgment against the latter and may obtain execution of the decree thereon, without prejudice to his right to proceed with his suit against the former.7. Leave to defend [Order 36, rule 7]
Leave to defend may be given unconditionally, or subject to such terms as to giving security or time of trial or otherwise, as the court thinks fit.8. Costs [Order 36, rule 8]
9. Forms [Order 36, rule 9]
Form Nos. 24 and 25 of Appendix A, adapted to circumstances, shall be utilised for the respective purposes for which they are designed.10. Setting aside of judgment [Order 36, rule 10]
Any judgment, given against any party who did not attend at the hearing of an application under this Order, may, on application be set aside or varied on such terms as are just.ORDER 37 - ORIGINATING SUMMONS
1. Who may take out originating summons and in respect of what matters [Order 37, rule 1]
The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person, or as cestui que trust under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid, may take out as of course, an originating summons, returnable before a judge sitting in chambers for such relief of the nature or kind following, as may by the summons be specified, and as circumstances of the case may require, that is to say, the determination, without the administration of the estate or trust, of any of the following questions—2. Order for administration of estate or trust [Order 37, rule 2]
Any of the persons named in rule 1 may in like manner apply for and obtain an order for—3. Summons by vendor or purchaser of land [Order 37, rule 3]
A vendor or purchaser of immovable property or their representatives respectively may, at any time or times, take out an originating summons returnable before the judge sitting in chambers, for the determination of any question which may arise in respect of any requisitions or objections, or any claim for compensation; or any other question arising out of or connected with the contract of sale (not being a question affecting the existence or validity of the contract).4. Summons by a mortgagee, mortgagor and others [Order 37, rule 4]
Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before the judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee.5. Caveats [Order 37, rule 5]
An application under section 71 of the Land Registration Act (Cap. 300) shall be made by originating summons unless there is pending a suit involving the same lands when the application may be made by summons in that suit.6. Extension of limitation period [Order 37, rule 6]
7. Adverse possession [Order 37, rule 7]
8. Application under the Registered Land Act [Order 37, rule 8]
An application under the Land Registration Act (Cap. 300) other than under Part VII and Part VIII thereof shall be made by originating summons unless there is pending a suit involving the same lands when the application may be made in that suit.[L.N. 22/2020, r. 21.]9. Application under Chattels Transfer Act [Order 37, rule 9]
An application under section 9 of the Chattels Transfer Act (Cap. 28) shall be made by originating summons ex parte supported by an affidavit setting out the grounds relied upon.10. Summons by a member of a partnership [Order 37, rule 10]
When the existence of a partnership, or the right to a partnership, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating summons returnable before the judge sitting in chambers against his partners or former partners or their representatives (if any) for the purpose of having the partnership dissolved (if it be still subsisting) and for the purpose of taking the accounts of and winding up such partnership.11. Summons by persons interested in deeds or wills [Order 37, rule 11]
Any person claiming to be interested under a deed, will, or other written instrument, may apply in chambers by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the person interested.12. Variation of trusts [Order 37, rule 12]
An application for an order under the Trustee Act shall be made by originating summons returnable before the judge sitting in chambers; and the settler and any other person who provided property for the purposes of the trusts in question shall, if still alive and not an applicant and unless a judge for special reasons otherwise directs, be made a respondent to summons in addition to any other persons who are necessary and proper respondents thereto.13. Discretion upon summons for construction of document [Order 37, rule 13]
The judge shall not be bound to determine any such question of construction if, in his opinion, it ought not to be determined on originating summons.14. Forms [Order 37, rule 14]
An originating summons shall be in Form No. 26 or No. 27 of Appendix A with such variations as circumstances may require, and shall be prepared by the applicant or his advocate and shall be filed in court; service where necessary shall be effected in accordance with Order 5.15. Summons to be filed and registered [Order 37, rule 15]
The originating summons when filed shall be filed and entered in the register of suits, but after the serial number the letters “O.S.” shall be placed to distinguish it from plaints filed in ordinary suits.16. Directions [Order 37, rule 16]
The registrar shall, within thirty days of filing of the Originating Summons and with notice to the parties list it for directions before a judge in chambers.17. Procedure [Order 37, rule 17]
The day and hour of attendance under an originating summons to which an appearance is required to be entered shall after appearance be fixed for hearing in chambers of the judge to whom such summons is assigned.18. Evidence and directions upon hearing of summons [Order 37, rule 18]
At the time of directions, if the parties do not agree to the correctness and sufficiency of the facts set forth in the summons and affidavit, the judge may order the summons to be supported by such further evidence as he may deem necessary, and may give such directions as he may think just for the trial of any issues arising thereupon, and may make any amendments necessary to make the summons accord with existing facts, and to raise the matters in issue between the parties.19. Powers of court upon hearing of summons [Order 37, rule 19]
20. Court may make orders as to costs incurred by any party [Order 37, rule 20]
If an originating summons is adjourned into court, the judge may, if he deems the question to be determined is of sufficient importance, order that the costs be taxed on the scale applicable to suits. In all other cases the judge may make such orders as to the costs of the parties as he considers just.ORDER 38 - SELECTION OF TEST SUIT
1. Staying several suits against the same defendant [Order 38, rule 1]
Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.2. Staying similar suits upon application by defendant [Order 38, rule 2]
Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several dependants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the application of a defendant that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined in another of such suits, may order that the suit to which such defendant is a party be stayed until such other suit shall have been determined or shall have failed to be a real trial of the issues.ORDER 39 - ARREST AND ATTACHMENT BEFORE JUDGMENT
1. Where defendant may be called upon to furnish security for appearance [Order 39, rule 1]
Where at any stage of a suit, other than a suit of the nature referred to in paragraphs (a) to (d) of section 12 of the Act, the court is satisfied by affidavit or otherwise—2. Security [Order 39, rule 2]
3. Procedure on application by surety to be discharged [Order 39, rule 3]
4. Procedure where defendant fails to furnish security or find fresh security [Order 39, rule 4]
Where the defendant fails to comply with any order under rule 2 or rule 3, the court may commit him to prison until the decision of the suit, or, where a decree is passed against the defendant, until the decree has been satisfied:Provided that—5. Where defendant may be called upon to furnish security for production of property [Order 39, rule 5]
6. Attachment where cause not shown or security not furnished [Order 39, rule 6]
7. Mode of making attachment [Order 39, rule 7]
Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.8. Investigation or claim to property attached before judgment [Order 39, rule 8]
Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money.9. Removal of attachment when security furnished or suit dismissed [Order 39, rule 9]
Where an order is made for attachment before judgment, the court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.10. Attachment before judgment not to affect rights of strangers nor bar decree-holder from applying for sale [Order 39, rule 10]
Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.11. Property attached before judgment not to be re-attached in execution of decree [Order 39, rule 11]
Where property is under attachment by virtue of this Order, and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary, upon an application for execution of such decree, to apply for a re-attachment of the property.ORDER 40 - TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS
1. Cases in which temporary injunction may be granted [Order 40, rule 1]
Where in any suit it is proved by affidavit or otherwise—2. Injunction to restrain breach of contract or other injury [Order 40, rule 2]
3. Consequence of breach [Order 40, rule 3]
4. Notice of application [Order 40, rule 4]
5. Ruling of the court [Order 40, rule 5]
In all applications for injunction, the court shall, after inter-partes hearing deliver its ruling either at once or within thirty days of the conclusion of the hearing with notice to the parties or their advocates;Provided where the ruling is not delivered within thirty days, the judge shall record the reason therefor and immediately fix a date for ruling.6. Lapse of injunction [Order 40, rule 6]
Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise.7. Order for injunction may be discharged, varied, or set aside [Order 40, rule 7]
Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.8. Injunction against corporation binding on its officers [Order 40, rule 8]
An injunction directed to a corporation is binding not only on the corporation itself but also on all members and officers of the corporation whose personal action it seeks to restrain.9. Power to order interim sale [Order 40, rule 9]
The court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property, being the subject-matter of such suit, or attached before judgment in such suit, which is subject to speedy and natural decay, or which for other just and sufficient cause it may be desirable to have sold at once.10. Detention, preservation, inspection of property [Order 40, rule 10]
11. Deposit of money and other deliverables [Order 40, rule 11]
Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the court may order the same to be deposited in court or delivered to such last named party, with or without security, subject to the further direction of the court.ORDER 41 - APPOINTMENT OF RECEIVERS
1. Appointment of receivers [Order 41, rule 1]
2. Remuneration [Order 41, rule 2]
The court may, by general or special order, fix the amount to be paid as remuneration for the services of the receiver.3. Duties [Order 41, rule 3]
Every receiver so appointed shall—4. Enforcement of receiver’s duties [Order 41, rule 4]
Where a receiver—5. Removal [Order 41, rule 5]
The court may either on its own motion or on application by any interested party, remove a receiver appointed pursuant to this order on such terms as it thinks fit.ORDER 42 - APPEALS
1. Form of appeal [Order 42, rule 1]
2. Filing of decree or order [Order 42, rule 2]
Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.3. Amendment of memorandum of appeal [Order 42, rule 3]
4. Grounds which may be taken in appeal [Order 42, rule 4]
The appellant shall not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule:Provided that the High Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.5. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all [Order 42, rule 5]
Where there is more than one plaintiffs or defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the High Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.6. Stay in case of appeal [Order 42, rule 6]
7. Security in case of order for execution of decree appealed from [Order 42, rule 7]
8. No security to be required from the Government [Order 42, rule 8]
No such security as is mentioned in rules 6 and 7 shall be required from the Government or where the Government has undertaken the defence of the suit or from any public officer sued in respect of an act alleged to be done by him in his official capacity.9. Exercise of powers in appeal from order made in execution of decree [Order 42, rule 9]
The powers conferred by rules 6 and 7 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.10. Register and filing of appeals [Order 42, rule 10]
11. Directions under section 79B [Order 42, rule 11]
A judge of the High Court shall, within thirty days of the filing of an appeal under section 79B of the Act, peruse the appeal and give directions in accordance with the provisions of section 79B of the Act.[L.N. 22/2020, r. 22(a).]12. Service of memorandum [Order 42, rule 12]
Where the judge admits the appeal under section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every respondent within seven days of receipt of the notice from the registrar.[L.N. 22/2020, r. 22(b).]13. Directions before hearing [Order 42, rule 13]
14. Security for costs [Order 42, rule 14]
15. Notice to be given where decree appealed from [Order 42, rule 15]
16. Filing declaration and written submissions [Order 42, rule 16]
17. Service of hearing notice [Order 42, rule 17]
Notice of the day fixed for hearing of the appeal shall be served on the respondent or on his advocate in the manner provided for under Order 5.18. Contents of notice [Order 42, rule 18]
The notice to the respondent shall declare that, if he does not appear in the court to which such appeal is preferred on the day so fixed, the appeal may be heard ex parte.19. Right to begin [Order 42, rule 19]
20. Dismissal of appeal for appellant’s default [Order 42, rule 20]
21. Re-admission of appeal dismissed for default [Order 42, rule 21]
Where an appeal is dismissed under rule 20, the appellant may apply to the court to which such appeal is preferred for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.22. Power to adjourn hearing and direct interested persons to be made respondents [Order 42, rule 22]
Where it appears to the court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that such person be made a respondent.23. Re-hearing on application of respondent against whom ex parte decree made [Order 42, rule 23]
Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the court to which the appeal is preferred to re-hear the appeal; and if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it deems fit.24. Remand of cases [Order 42, rule 24]
Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and the decree is reversed on appeal, the court to which the appeal is preferred may, if it deems fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.25. Where evidence on record sufficient appellate court may determine case finally [Order 42, rule 25]
Where the evidence upon the record is sufficient to enable the court to which the appeal is preferred to pronounce judgment, the court to which the appeal is preferred may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the court to which the appeal is preferred proceeds.26. Power to order new trial [Order 42, rule 26]
If upon the hearing of an appeal it shall appear to the court to which the appeal is preferred that a new trial ought to be had, it shall be lawful for the said court, if it shall think fit, to order that the judgment and decree shall be set aside, and that a new trial shall be had.27. Production of additional evidence in appellate court [Order 42, rule 27]
28. Mode of taking additional evidence [Order 42, rule 28]
Wherever additional evidence is allowed to be produced, the court to which the appeal is preferred may either take such evidence or direct the court from whose decree the appeal is preferred or any other subordinate court to take such evidence and to send it when taken to the court to which the appeal is preferred.29. Limits to be defined and recorded [Order 42, rule 29]
Where additional evidence is directed or allowed to be taken the court to which the appeal is preferred shall specify the limits to which the evidence is to be confined and record on its proceedings the points so specified.30. Where court consists of more than one judge [Order 42, rule 30]
Where the court consists of more than one judge, the decree of the court shall be drawn in accordance with the findings of the majority.31. What judgment may direct [Order 42, rule 31]
The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the court to which the appeal is preferred may pass a decree or make an order accordingly.32. Power of appellate court on appeal [Order 42, rule 32]
The court to which the appeal is preferred shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents although such respondents may not have filed any appeal or cross-appeal.33. Preparation and contents of decree [Order 42, rule 33]
The decree of the court to which the appeal is preferred shall be dated, drawn up, sealed and signed as directed by rules 7, 8 and 9 of Order 21 with any necessary modifications.34. Certified copy of decree to be sent to court whose decree appealed from [Order 42, rule 34]
A copy of the judgment and of the decree, certified by the High Court, or such officer as it appoints in this behalf, shall be sent to the court which passed the decree appealed from, and shall be filed with the original proceedings in the suit, and an entry of the judgment of the court to which the appeal is preferred shall be made in the register of civil suits.35. Dismissal for want of prosecution [Order 42, rule 35]
ORDER 43 - APPEALS FROM ORDERS
1. Appeals from Orders [Order 43, rule 1]
2. Procedure [Order 43, rule 2]
The rules of Order 42 shall apply, so far as may be, to appeals from orders.3. Saving [Order 43, rule 3]
Nothing in this Order shall apply to any adjudication which, as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.ORDER 44 - PAUPER APPEALS
1. Who may appeal as a pauper [Order 44, rule 1]
Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject in all matters, including the presentation of such application, to the provisions relating to suits by paupers in so far as those provisions are applicable:Provided that the court shall dismiss the application unless upon a perusal of the memorandum of appeal and of the record of the lower court, it sees reason to think that the decree is contrary to law, or against the weight of the evidence.2. Inquiry into pauperism [Order 44, rule 2]
The inquiry into the pauperism of the applicant may be made either by the High Court or under the orders of the High Court by the court from whose decision the appeal is preferred:Provided that, if the applicant was allowed to sue or appeal as a pauper in the court from whose decree the appeal is preferred, no further inquiry in respect of his pauperism shall be necessary, unless the High Court sees cause to direct such inquiry.ORDER 45 - REVIEW
1. Application for review of decree or order [Order 45, rule 1]
2. To whom applications for review may be made [Order 45, rule 2]
3. When court may grant or reject application [Order 45, rule 3]
4. Application where more than one judge hears [Order 45, rule 4]
5. Re-hearing upon application granted [Order 45, rule 5]
When an application for review is granted, a note thereof shall be made in the register, and the court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.6. Bar of subsequent applications [Order 45, rule 6]
No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained.ORDER 46 - ARBITRATION UNDER ORDER OF A COURT AND OTHER ALTERNATIVE DISPUTE RESOLUTION
1. Parties to a suit may apply for arbitration [Order 46, rule 1]
Where in any suit all the parties interested who are not under disability agree that any matter in difference between them in such suit shall be referred to arbitration, they may, at any time before judgment is pronounced, apply to the court for an order of reference.2. Appointment of arbitrator [Order 46, rule 2]
The arbitrator shall be appointed in such manner as may be agreed upon between the parties.3. Form of order [Order 46, rule 3]
4. Provisions where two or more arbitrators [Order 46, rule 4]
5. Power to appoint arbitrator [Order 46, rule 5]
6. Power of arbitrator or umpire appointed by court [Order 46, rule 6]
Every arbitrator or umpire appointed under rule 4 or rule 5 shall have the like powers as if his name had been inserted in the order of reference.7. Summoning witnesses and default [Order 46, rule 7]
8. Extension of time for making award [Order 46, rule 8]
9. Where umpire may arbitrate in lieu of arbitrators [Order 46, rule 9]
Where an umpire has been appointed he may enter on the reference in the place of the arbitrators—10. Award to be signed, dated and filed [Order 46, rule 10]
Where an award in a suit has been made, the persons who made it shall sign it, date it and cause it to be filed in court within fourteen days together with any depositions and documents which have been taken and proved before them.11. Time for reading award may be fixed [Order 46, rule 11]
12. Statement of special case by arbitrators or umpire [Order 46, rule 12]
Upon any reference by an order of the court, the arbitrator or umpire may, and shall if so directed by the court, state the award as to the whole or any part thereof in the form of a special case for the opinion of the court, and the court shall deliver its opinion thereon, and shall order such opinion to be added to and form part of the award.13. Costs of arbitration [Order 46, rule 13]
The court may make such order as it thinks fit in respect of the costs of an arbitration save to the extent to which an award of costs has been properly made by the arbitrator.14. Power to modify or correct award [Order 46, rule 14]
The court may modify or correct an award—15. Power to remit for reconsideration [Order 46, rule 15]
16. Grounds for setting aside award [Order 46, rule 16]
17. Time for application [Order 46, rule 17]
An application may be made under rules 13, 14, 15 and 16 within thirty days of receipt by the applicant of notice of the filing of the award under rule 10 or, where a date for reading the award has been fixed by the court under rule 11 within thirty days of that date.18. Judgment on award [Order 46, rule 18]
19. Forms [Order 46, rule 19]
Form Nos. 28 to 32 of Appendix A shall be used for the respective purposes therein mentioned.20. Alternative dispute resolution [Order 46, rule 20]
ORDER 47 - DISTRICT REGISTRIES
1. Institution of suits in High Court [Order 47, rule 1]
Every suit in the High Court may be instituted at the central office of that court situate in Nairobi or in a District Registry.2. Schedule of District Registries and areas [Order 47, rule 2]
3. Title of suits filed in a District Registry [Order 47, rule 3]
Suits filed in a District Registry shall be intituled as suits in “The High Court of Kenya at.... (District Registry)”, and shall be serially numbered in that Registry.4. Suits filed in a registry remain there when all defendants reside within that area [Order 47, rule 4]
Where the defendant resides or carries on business, or all the defendants (if more than one) reside or carry on business within the area in the District Registry whereof a suit has been instituted, all proceedings shall be taken in such registry subject to any order fixing the place of trial made by the court under rule 8.5. Proceedings against the Government [Order 47, rule 5]
Notwithstanding anything in rule 4, in any civil proceedings against the Government the defendant shall for the purposes of this Order be deemed neither to reside nor to carry on business within the district of any District Registry.6. Place of trial [Order 47, rule 6]
7. All preliminary steps taken before the District Registrar [Order 47, rule 7]
In a suit proceeding in a District Registry all formal steps preliminary to the trial and all interlocutory applications shall, in the absence of a judge, be made and taken before the District Registrar; and when such suit is ready for trial it may be set down for hearing before a judge sitting at the place of the Registry.8. Appeal from decision of District Registrar [Order 47, rule 8]
9. Taxations in District Registries [Order 47, rule 9]
A District Registrar with regard to suits tried in his area shall have the same power of taxing costs as the registrar has as a taxing officer under any Rules of Court, and all such rules shall apply to the taxation of costs by a District Registrar.10. Appeals from subordinate courts. [Order 47, rule 10]
An appeal from a decree or order of a subordinate court to the High Court may be filed in the District Registry within the area of which such subordinate court is situate; and the District Registrar shall, upon the payment to him of all fees, endorse the date of filing upon the memorandum of appeal, and forward the papers to the High Court Registry in that area for hearing and disposal.ORDER 48 - MISCELLANEOUS
1. Process to be served at expense of party issuing [Order 48, rule 1]
2. Service of Orders, notices and documents [Order 48, rule 2]
All orders, notices and documents required by these Rules to be given to or served on any person shall, save where other provision is made, be served in the manner provided for the service of summons.3. Use of forms [Order 48, rule 3]
Forms used for the purposes of this Act shall, with such variation as the circumstances of each case may require, be those to be found in the Appendices to these Rules, and such other forms as may from time to time approved by the High Court.4. Special rules of procedure [Order 48, rule 4]
Any special rules of procedure not contained in these Rules which may have been or may be made by the High Court shall, where they conflict with these Rules, prevail and be deemed to govern the procedure in the matter therein mentioned.ORDER 49 - SPECIAL POWERS OF REGISTRARS
1. Registrar to be ministerial officer [Order 49, rule 1]
Wherever in these Rules it is provided that any ministerial act or thing may be done by the court, that act or thing may be done by the registrar or by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand.1A. Signing summons [Order 49, rule 1A]
The Registrar has power to sign summons to enter appearance.[L.N. 22/2020, r. 23.]2. When Judgment may be entered by Registrar [Order 49, rule 2]
Judgment may, on application in writing, be entered by the registrar or, in a subordinate court, by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand, in the following cases:3. Consent orders [Order 49, rule 3]
Any order may, by consent of the parties evidenced in writing, be entered by the registrar or, in a subordinate court, by an executive officer so authorised in writing by the Chief Justice.4. No judgment against Government in default of pleading without leave of court [Order 49, rule 4]
Notwithstanding anything contained in rule 2, in any proceedings against the Government no judgment for the plaintiff shall be entered in default of appearance or pleading without the leave of the court, and any application for such leave shall be served by notice of motion served not less than seven days before the return day.5. Execution may be ordered by Registrar [Order 49, rule 5]
Formal orders for attachment and sale of property and for the issue of notices to show cause on applications for arrest and imprisonment in execution of a decree of the High Court may be made by the registrar or, in a subordinate court, by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand, but in the event of any objection being taken to the proceedings thereunder, all further proceedings shall be before a judge.6. Registrar a Civil Court [Order 49, rule 6]
For the purposes of rules 2, 3 and 4 a registrar or, in a subordinate court, an executive officer empowered as aforesaid, shall be deemed to be a Civil Court.7. Hearing of applications [Order 49, rule 7]
ORDER 50 - TIME
1. Month means calendar month [Order 50, rule 1]
Where by these Rules or by any judgment or order given or made, time for doing any act or taking any proceedings is limited by months, and where the word “month” occurs in any document which is part of any legal procedure under these Rules, such time shall be computed by calendar months unless otherwise expressed.2. Exclusion of Sundays and public holidays [Order 50, rule 2]
Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceedings, Sunday, Christmas Day and Good Friday, and any other day appointed as a public holiday shall not be reckoned in the computation of such limited time.3. Time expiring on Sunday or day offices closed [Order 50, rule 3]
Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof, such act or proceeding cannot be done, or taken on that day, such act or proceeding shall so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open.4. When time does not run [Order 50, rule 4]
Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:Provided that this rule shall not apply to any application in respect of a temporary injunction.5. Time for giving security for costs, when not to be reckoned [Order 50, rule 5]
The day on which an order for security for costs is served, and the time thenceforward until and including the day on which such security is given shall not be reckoned in the computation of time allowed to plead, or take any other proceeding in the cause or matter.6. Power to enlarge time [Order 50, rule 6]
Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.7. Enlargement of time by consent [Order 50, rule 7]
The time for delivering, amending, or filing any pleading, answer or other document of any kind whatsoever may be enlarged by consent in writing of the parties or their advocates without application to the court.8. Computation of days [Order 50, rule 8]
In any case in which any particular number of days not expressed to be clear days is prescribed under these Rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day.9. Time of day of service [Order 50, rule 9]
ORDER 51 - APPLICATIONS
1. Procedure [Order 51, rule 1]
All applications to the court shall be by motion and shall be heard in open court unless the court directs the hearing to be conducted in chambers or unless the rules expressly provide.2. Applications under section 25(2) of the Government Proceedings Act [Order 51, rule 2]
Any application such as is referred to in section 25(2) of the Government Proceedings Act (Cap. 40), shall be made in the manner prescribed in rule 1.3. Notice to parties [Order 51, rule 3]
No motion shall be made without notice to the parties affected thereby:Provided, however, that the court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as to the court seems just, and any party affected by such order may move to set it aside.4. Contents of notice [Order 51, rule 4]
Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.5. Dismissal or adjournments for want of notice [Order 51, rule 5]
If upon the hearing of any application, the court is of opinion that sufficient notice has not been given or that any person to whom notice has not been given ought to have had such notice, the court may adjourn the hearing thereof in order that such notice may be given upon such terms, if any, as the court may think fit to impose.6. Adjournment of hearing [Order 51, rule 6]
The hearing of any application may from time to time be adjourned upon such terms as the court thinks fit.7. Service of notice on defendant served with summons to enter appearance but not appearing [Order 51, rule 7]
A plaintiff may, without special leave, cause to be served any application or notice of any petition or summons upon any defendant who, having been duly served with a summons to enter an appearance, has failed to appear within the time limited for that purpose.8. Transfer from court to chambers [Order 51, rule 8]
Notwithstanding anything contained in these Rules, the court may in any case direct that any business be disposed of in chambers which it thinks may be more conveniently disposed of in chambers than in court.9. Transfer from chambers to court [Order 51, rule 9]
Any judge may adjourn into court any application made to him at chambers which he deems more convenient to be considered in court.10. Provision under which application is made to be stated [Order 51, rule 10]
11. Costs and other relief [Order 51, rule 11]
12. When application are deemed to be made [Order 51, rule 12]
All applications or other process shall be deemed to have been made when filed in court.13. Signature on application and service [Order 51, rule 13]
14. Grounds of opposition to application in High Court [Order 51, rule 14]
15. Setting aside ex parte order [Order 51, rule 15]
The court may set aside an order made ex parte.16. Court may limit time for submissions [Order 51, rule 16]
The court may, in its discretion, limit the time for oral submissions by the parties or their advocates or allow written submissions.ORDER 52 - THE ADVOCATES ACT
1. Interpretation [Order 52, rule 1]
In this Order—“the Act” means the Advocates Act (Cap. 16);“the Disciplinary Committee” means the Disciplinary Committee established under section 57 of the Advocates Act (Cap. 16);“the Society” means the Society established and incorporated by section 3 of the Law Society of Kenya Act (Cap.18).2. Appeals to the Chief Justice [Order 52, rule 2]
3. Applications with respect to remuneration [Order 52, rule 3]
4. Power to order advocate to deliver accounts and documents [Order 52, rule 4]
5. Application for taxation by third parties [Order 52, rule 5]
6. Application for charging order [Order 52, rule 6]
7. Application for order for enforcement of an undertaking [Order 52, rule 7]
8. Title and service of appeal [Order 52, rule 8]
9. Discontinuance of appeal [Order 52, rule 9]
10. Procedure [Order 52, rule 10]
ORDER 53 - APPLICATIONS FOR JUDICIAL REVIEW
1. Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1]
2. Time for applying for certiorari in certain cases [Order 53, rule 2]
Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.3. Application to be by notice of motion [Order 53, rule 3]
4. Statements and affidavits [Order 53, rule 4]
5. Applicant to have right to begin [Order 53, rule 5]
On the hearing of any such motion as aforesaid, the applicant shall have the right to begin.6. Right to be heard in opposition [Order 53, rule 6]
On the hearing of any such motion as aforesaid, any person who desires to be heard in opposition to the motion and appears to the High Court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with the notice or summons, and shall be liable to costs in the discretion of the court if the order should be made.7. Provisions as to orders of certiorari for the purpose of quashing proceedings [Order 53, rule 7]
ORDER 54 - REVOCATION AND TRANSITIONAL PROVISIONS
1. Revocation of Civil Procedure Rules. Sub. leg. [Order 54, rule 1]
The Civil Procedure Rules are revoked.2. Transitional provisions
In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of these rules, the provisions of these rules shall thereafter apply, but without prejudice to the validity of anything previously done:Provided that:History of this document
31 December 2022 this version
Revised by
24th Annual Supplement
28 February 2020
17 September 2010
Commenced
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