the civil procedure act - Kenya Law Reports

DECARESIS®Décade de résistances 10 x 1 ΩNOTICE04153CommutateurrotatifBornes deraccordementdoubleisolation1. PRESENTATIONCe boîtier contient 1 décade de résistances commutables par bouton rotatif2. CARACTERISTIQUES TECHNIQUESavec bornes de sécurité diamètre 4 mmPuissance admissible : 2 W.Précision : 5 %Cette décade contient 10 résistances de la même valeur ( x1 Ω)Incrémentation au pas de 1 par commutateur rotatif de 0 à 10.Dimensions du boîtier isolant : 130*80*35 mm1

Rev. 2010] Civil Procedure CAP. 21 797–(Renumbered.)98–Execution of instruments by order of court.99–Amendment of judgments, decrees or orders.100–General power to amend.

8 CAP. 21 Civil Procedure[Rev. 2010Cap. 5 (1948),39 of 1956,L.N. 299/1956,L.N. 300/1956,46 of 1963,19 of 1964,17 of 1967,8 of 1968,21 of 1968,38 of 1968,10 of 1969,11 of 1970,4 of 1974,14 of 1977,13 of 1978,13 of 1980,1 of 1981,L.N. 22/1984,L.N. 50/1985;L.N. 36/2000,L.N. 128/20016 of 2009.Short title andapplication.17 of 1967, s. 37.Cap. 10.Objective of Act.6 of 2009, Sch.CHAPTER 21THE CIVIL PROCEDURE ACTCommencement: 31st January, 1924An Act of Parliament to make provision for procedure in civil courtsPART I—PRELIMINARY1. (1) This Act may be cited as the Civil Procedure Act.(2) This Act applies to proceedings in the High Court and, subjectto the Magistrate’s Courts Act, to proceedings in subordinate courts.1A (1) The overriding objective of this Act and the rules madehereunder is to facilitate the just, expeditious, proportionate andaffordable resolution of the civil disputes governed by the Act.(2) The Court shall, in the exercise of its powers under this Actor the interpretation of any of its provisions, seek to give effect to theDuty of Court.6 of 2009, Sch.(3) A party to civil proceedings or an advocate for such a partyis under a duty to assist the Court to further the overriding objective ofthe Act and, to that effect, to participate in the processes of the Courtand to comply with the directions and orders of the Court.1B. (1) For the purpose of furthering the overriding objectivebefore it for the purpose of attaining the following aims—(a) the just determination of the proceedings;(b(c

Rev. 2010] Civil Procedure CAP. 21 9resources;(d) the timely disposal of the proceedings, and all otherproceedings in the Court, at a cost affordable by therespective parties; and(e) the use of suitable technology.2. In this Act, unless the context otherwise requires-Interpretation.17 of 1967, s. 38,10 of 1969, Sch.,4 of 1974, Sch.the exercise of its civil jurisdiction;far as regards the court expressing it, conclusively determines the rightsof the parties with regard to all or any of the matters in controversy inout of a plaint and the determination of any question within section 34or section 91, but does not include—(a) any adjudication from which an appeal lies as an appealfrom an order; or(b) any order of dismissal for default: judgment, and a judgment shall be appealable notwithstanding the factthat a formal decree in pursuance of such judgment may not have beendrawn up or may not be capable of being drawn up;Explanation. — A decree is preliminary when further proceedingshave to be taken before the suit can be completely disposed of. It is has been passed or an order capable of execution has been made, andincludes the assignee of such decree or order;court;

10 CAP. 21 Civil Procedure[Rev. 2010been passed or an order capable of execution has been made; the estate of a deceased person, and where a party sues or is sued in arepresentative character the person on whom the estate devolves on thedeath of the party so suing or sued;the person in wrongful possession of such property actually received ormight with ordinary diligence have received therefrom, together withmade by the person in wrongful possession;which is not a decree, and includes a rule nisi;“writing of the claim or demand of any plaintiff, and of the defence ofany defendant thereto, and of the reply of the plaintiff to any defenceor counterclaim of a defendant;regulate the procedure of courts; debentures and bonds;prescribed.Saving of specialjurisdiction andpowers.Saving of inherent3. in this Act shall limit or otherwise affect any special jurisdiction orpower conferred, or any special form or procedure prescribed, by orunder any other law for the time being in force.3A. Nothing in this Act shall limit or otherwise affect the inherent

Rev. 2010] Civil Procedure CAP. 21 11power of the court to make such orders as may be necessary for the endsof justice or to prevent abuse of the process of the court.4. Save in so far as is otherwise expressly provided, nothing hereincontained shall operate to give any court jurisdiction over suits theamount or value of the subject-matter of which exceeds the pecuniarylimits, if any, of its ordinary jurisdiction.powers of court.Pecuniaryjurisdiction.PART II—SUITS IN GENERALJurisdiction of Courts5. Any court shall, subject to the provisions herein contained, havejurisdiction to try all suits of a civil nature excepting suits of which itscognizance is either expressly or impliedly barred.6. No court shall proceed with the trial of any suit or proceedingin which the matter in issue is also directly and substantially in issue ina previously instituted suit or proceeding between the same parties, orbetween parties under whom they or any of them claim, litigating underthe same title, where such suit or proceeding is pending in the same orCourts to try all civilsuits unless barred.Stay of suit.10 of 1969, Sch.Explanation.—The pendency of a suit in a foreign court shall notpreclude a court from trying a suit in which the same matters or any ofthem are in issue in such suit in such foreign court.7. No court shall try any suit or issue in which the matter directlyand substantially in issue has been directly and substantially in issue ina former suit between the same parties, or between parties under whomthey or any of them claim, litigating under the same title, in a courtcompetent to try such subsequent suit or the suit in which such issueby such court.Explanation which has been decided before the suit in question whether or not itwas instituted before it.Explanation.(2)—For the purposes of this section, the competenceof a court shall be determined irrespective of any provision as to rightof appeal from the decision of that court.Explanation. (3)—The matter above referred to must in the formersuit have been alleged by one party and either denied or admitted,expressly or impliedly, by the other.Res judicata.L.N. 22/1984.

12 CAP. 21 Civil Procedure[Rev. 2010Explanation.(4)—Any matter which might and ought to have beenmade ground of defence or attack in such former suit shall be deemedto have been a matter directly and substantially in issue in such suit.Explanation. (5)—Any relief claimed in a suit, which is notexpressly granted by the decree shall, for the purposes of this section,be deemed to have been refused.Explanationpublic right or of a private right claimed in common for themselves andothers, all persons interested in such right shall, for the purposes of thissection, be deemed to claim under the persons so litigating.Bar to further suit.When foreignjudgment notconclusive.10 of 1969, Sch.8. Where a plaintiff is precluded by rules from instituting a furthersuit in respect of any particular cause of action, he shall not be entitledto institute a suit in respect of that cause of action.9. A foreign judgment shall be conclusive as to any matter therebydirectly adjudicated upon between the same parties or between partiesunder whom they or any of them claim, litigating under the same title,except—(a) where it has not been pronounced by a court of competentjurisdiction;(b) where it has not been given on the merits of the case;(c) where it appears on the face of the proceedings to be foundedon an incorrect view of international law or a refusal toapplicable;(d) where the proceedings in which the judgment was obtainedare opposed to natural justice;(e) where it has been obtained by fraud;(f) where it sustains a claim founded on a breach of any law in10. (Repealed by 46 of 1963, 2nd Sch.).Place of SuingCourt in which suit tobe instituted.19 of 1964, Sch.11. Every suit shall be instituted in the court of the lowest gradecompetent to try it, except that where there are more subordinate courtsthan one with jurisdiction in the same district competent to try it, a

Rev. 2010] Civil Procedure CAP. 21 13he believes that a point of law is involved or that any other good andcourts:Provided that—(i) if a suit is instituted in a court other than a court of thelowest grade competent to try it, the magistrate holdingsuch court shall return the plaint for presentation in thecourt of the lowest grade competent to try it if in hisopinion there is no point of law involved or no othercourt; and(ii) nothing in this section shall limit or affect the powerof the High Court to direct the distribution of businesswhere there is more than one subordinate court in thesame district.12. Subject to the pecuniary or other limitations prescribed byany law, suits -(a) for the recovery of immovable property, with or withoutSuit to be institutedwhere subject mattersituate.10 of 1969, Sch.(b) for the partition of immovable property;(c) for the foreclosure, sale or redemption in the case of amortgage of or charge upon immovable property;(d) for the determination of any other right to or interest inimmovable property;(e) for compensation for wrong to immovable property;(f) for the recovery of movable property actually under distraintor attachment,within the local limits of whose jurisdiction the property is situate:Provided that a suit to obtain relief respecting, or compensation forwrong to, immovable property held by or on behalf of the defendant may,where the relief sought can be entirely obtained through his personalobedience, be instituted either in the court within the local limits ofwhose jurisdiction the property is situate, or in the court within the

14 CAP. 21 Civil Procedure[Rev. 2010local limits of whose jurisdiction the defendant actually and voluntarilyresides or carries on business, or personally works for gain.Suit for immovableproperty situatewithin jurisdiction ofdifferent courts.Suit forcompensation forwrong to the personor movables.13. Where a suit is to obtain relief respecting, or compensation forwrong to, immovable property situate within the jurisdiction of differentcourts, the suit may be instituted in any court within the local limits ofwhose jurisdiction any portion of the property is situate, provided that,in respect of the value of the subject-matter of the suit, the entire claimis cognizable by such court.14. Where a suit is for compensation for wrong done to the personor to movable property, if the wrong was done within the local limitsof the jurisdiction of one court and the defendant resides or carries onbusiness, or personally works for gain, within the local limits of thejurisdiction of another court, the suit may be instituted at the option ofthe plaintiff in either of those courts.Illustration.—(a) A residing in Mombasa beats B in Nairobi. Bmay sue A either in Mombasa or Nairobi.Illustration.—(b) A residing in Mombasa publishes at Nairobistatements defamatory of B. B may sue A either in Mombasa or Nairobi.Other suits to beinstituted wheredefendant resides orcause of action arises.10 of 1969, Sch.15. Subject to the limitations aforesaid, every suit shall beinstituted in a court within the local limits of whose jurisdiction—(a) the defendant or each of the defendants (where there aremore than one) at the time of the commencement of the suit,actually and voluntarily resides or carries on business, orpersonally works for gain; or(b) any of the defendants (where there are more than one) atthe time of the commencement of the suit, actually andvoluntarily resides or carries on business, or personally worksfor gain, provided either the leave of the court is given, orthe defendants who do not reside or carry on business, orpersonally work for gain, as aforesaid acquiesce in suchinstitution; or(c) the cause of action, wholly or in part, arises.Explanation.(1)—Where a person has a permanent dwelling atone place and also a temporary residence at another place, he shall bedeemed to reside at both places in respect of any cause of action arisingat the place where he has such temporary residence.Explanation.(2)—A corporation shall be deemed to carry on

Rev. 2010] Civil Procedure CAP. 21 15cause of action arising at any place where it has also a subordinateExplanation.(3)—In suits arising out of contract, the cause ofaction arises within the meaning of this section at any of the followingplaces, namely—(i) the place where the contract was made;(ii) the place where the contract was to be performed or theperformance thereof completed;(iii) the place where in performance of the contract anymoney to which the suit relates was expressly orimpliedly payable.Illustration.—(a) A is a tradesman in Nairobi. B carries onbusiness in Mombasa. B by his agent at Nairobi buys goods of A andrequests A to deliver them to Mombasa by rail. A may sue B for the priceof the goods either in Nairobi, where the cause of action has arisen, orin Mombasa, where B carries on business.Illustration.—(bMombasa. A, B, and C being together at Nakuru, B and C make a jointpromissory note payable on demand and deliver it to A. A may sue Band C at Nakuru, where the cause of action arose. He may also suethem at Nairobi, where B resides, or at Mombasa, where C resides; butin each of these cases, if the non-resident defendant objects, the suitcannot proceed without the leave of the court.16. No objection as to the place of suing shall be allowed on appealhas been a consequent failure of justice.Objections tojurisdiction.17. Where a suit may be instituted in any one of two or moresubordinate courts, and is instituted in one of those courts, any defendantafter notice to the other parties, or the court of its own motion, may, atthe earliest possible opportunity, apply to the High Court to have thesuit transferred to another court; and the High Court after consideringthe objections, if any, shall determine in which of the several courtshaving jurisdiction the suit shall proceed.18. (1) On the application of any of the parties and after noticeto the parties and after hearing such of them as desire to be heard, or ofits own motion without such notice, the High Court may at any stage—Power to transfersuits which may beinstituted inmore than one court.Power of HighCourt to withdrawand transfer caseinstituted in

16 CAP. 21 Civil Procedure[Rev. 2010subordinate court.(a) transfer any suit, appeal or other proceeding pending beforeit for trial or disposal to any court subordinate to it andcompetent to try or dispose of the same; or(b) withdraw any suit or other proceeding pending in any courtsubordinate to it, and thereafter—(i) try or dispose of the same; or(ii) transfer the same for trial or disposal to any courtsubordinate to it and competent to try or dispose of thesame; or(iii) retransfer the same for trial or disposal to the court fromwhich it was withdrawn.(2) Where any suit or proceeding has been transferred orwithdrawn as aforesaid, the court which thereafter tries such suit may,subject to any special directions in the case of an order of transfer,either retry it or proceed from the point at which it was transferred orwithdrawn.Institution of SuitsInstitution of suits.19. Every suit shall be instituted in such manner as may beprescribed by rules.Procedure in Suits and DiscoveryService on defendant.Service wheredefendantresides inanother district.Power to orderdiscovery and thelike.20. Where a suit has been duly instituted the defendant shall beserved in manner prescribed to enter an appearance and answer theclaim.21. (1) Any document which is required to be served in connexionwith a suit may be sent for service in another district to a court havingjurisdiction in that district.(2) The court to which such document is sent shall, upon receiptthereof, proceed as if it had been issued by such court and shall thenreturn the document to the court of issue together with the record, ifany, of its proceedings with regard thereto.22. Subject to such conditions and limitations as may beprescribed, the court may, at any time, either of its own motion or onthe application of any party—

Rev. 2010] Civil Procedure CAP. 21 17(a) make such orders as may be necessary or reasonablein all matters relating to the delivery and answering ofinterrogatories, the admission of documents and facts, and thediscovery, inspection, production, impounding and return ofdocuments or other material objects producible as evidence;(b) issue summonses to persons whose attendance is requiredeither to give evidence or to produce documents or suchother objects as aforesaid;(c23. Sections 21 and 22 shall apply to summonses to give evidenceor to produce documents or other material objects.24. The court may compel the attendance of any person to whoma summons has been issued under section 22, and for that purpose may -Summons to witness.Penalty for default.(a) issue a warrant for his arrest;(b) attach and sell his property;(c(d) order him to furnish security for his appearance and indefault commit him to prison.Judgement and decree25. The court, after the case has been heard, shall pronouncejudgment, and on such judgment a decree shall follow:Judgment and decree.Provided that it shall not be necessary for the court to hear thecase before pronouncing judgment—(i) where the plaint is drawn claiming a liquidated demand,and either—(a) the defendant has not entered such appearance as may beprescribed; or(b) the defendant, having entered such appearance, has failed(ii) in such cases as may be prescribed under section 81 (2)(f).

18 CAP. 21 Civil Procedure[Rev. 2010InterestInterests.26. (1) Where and in so far as a decree is for the payment ofmoney, the court may, in the decree, order interest at such rate as thecourt deems reasonable to be paid on the principal sum adjudged fromthe date of the suit to the date of the decree in addition to any interestadjudged on such principal sum for any period before the institution ofthe suit, with further interest at such rate as the court deems reasonableon the aggregate sum so adjudged from the date of the decree to the date(2) Where such a decree is silent with respect to the payment offurther interest on such aggregate sum as aforesaid from the date of thedecree to the date of payment or other earlier date, the court shall bedeemed to have ordered interest at 6 per cent per annum.CostsCosts.27. (1) Subject to such conditions and limitations as may beprescribed, and to the provisions of any law for the time being in force,the costs of and incidental to all suits shall be in the discretion of thecourt or judge, and the court or judge shall have full power to determineby whom and out of what property and to what extent such costs are tobe paid, and to give all necessary directions for the purposes aforesaid;and the fact that the court or judge has no jurisdiction to try the suitshall be no bar to the exercise of those powers:Provided that the costs of any action, cause or other matter orissue shall follow the event unless the court or judge shall for goodreason otherwise order.(2) The court or judge may give interest on costs at any rate notexceeding fourteen per cent per annum, and such interest shall be addedto the costs and shall be recoverable as such.PART III—EXECUTIONGeneralApplication toorders.which passed a28. The provisions of this Act relating to the execution of decreesshall, so far as they are applicable, be deemed to apply to the executionof orders.29.that effect, shall, in relation to the execution of decrees, except wherethe context otherwise requires, include -

Rev. 2010] Civil Procedure CAP. 21 19(a) where the decree to be executed has been passed in theand(bhave jurisdiction to execute it, the court which, if the suitwherein the decree was passed were instituted at the timeof making the application for the execution of the decree,would have jurisdiction to try such suit.Courts by which Decrees may be Executed30. A decree may be executed either by the court which passedit or by the court to which it is sent for execution.31. (1) The court which passed a decree may, on the applicationof the decree-holder, send it for execution to another court—Court by whichdecree may beexecuted.Transfer of decree.(a) if the person against whom the decree is passed actuallyand voluntarily resides or carries on business, or personallyworks for gain, within the local limits of the jurisdiction ofthat other court; or(b) if such person has no property within the local limits of thesatisfy such decree and has property within the local limitsof the jurisdiction of such other court; or(c) if the decree directs the sale or delivery of immovableproperty situate outside the local limits of the jurisdictionof the court which has passed it; or(d) if the court which has passed the decree considers for anyother reason, which it has recorded in writing, that the decreeshould be executed by such other court.(2) The court which passed a decree may of its own motion sendit for execution to any court of inferior but competent jurisdiction.32. The court to which a decree is sent for execution shall certify tothe court which passed it the fact of such execution, or where the formercourt fails to execute the same the circumstances attending such failure.33. (1) The court executing a decree sent to it shall have the samepowers in executing such decree as if it had been passed by itself.Result of executionproceedings to bePowers of court inexecuting transferreddecree.

20 CAP. 21 Civil Procedure[Rev. 2010(2) All persons disobeying or obstructing the execution of thedecree shall be punishable by such court in the same manner as if ithad passed the decree; and its order in executing such decree shall besubject to the same rules in respect of appeal as if the decree had beenpassed by itself.Questions to be Determined by Court Executing DecreeQuestions to bedetermined by courtexecuting decree.34. (1) All questions arising between the parties to the suit inwhich the decree was passed, or their representatives, and relating to theexecution, discharge or satisfaction of the decree, shall be determinedby the court executing the decree and not by a separate suit.(2) The court may, subject to any objection as to limitation orjurisdiction, treat a proceeding under this section as a suit, or a suit asa proceeding, and may, if necessary, order payment of any additionalcourt fees.(3) Where a question arises as to whether any person is or is notthe representative of a party, such question shall, for the purposes ofthis section, be determined by the court.Explanation.—For the purposes of this section, a plaintiff whosesuit has been dismissed, and a defendant against whom a suit has beendismissed, are parties to the suit.35. (Repealed by 21 of 1968, Sch.).Transferees and Legal RepresentativesTransferee of decree.Legalrepresentative.36. Every transferee of a decree shall hold the same subject to theequities, if any, which the judgment-debtor might have enforced againstthe original decree-holder.37. (1) Where a judgment-debtor dies before the decree has beenpassed it to execute the same against the legal representative of suchdeceased, or against any person who has intermeddled with the estateof such deceased.(2) Where the decree is executed against such legal representative,or against any person as aforesaid, he shall be liable only to the extentof the property of the deceased which has come to his hands and hasnot been duly disposed of; and, for the purpose of ascertaining suchliability the court executing the decree may, of its own motion or onthe application of the decree-holder, compel such legal representative

22 CAP. 21 Civil Procedure[Rev. 2010(c) that the decree is for a sum for which the judgment-debtorEnforcement ofdecree against legalrepresentative.39. (1) Where a decree is passed against a party as the legalrepresentative of a deceased person, and the decree is for the paymentof money out of the property of the deceased, it may be executed bythe attachment and sale of any such property.(2) Where no such property remains in the possession of thejudgment-debtor, and he fails to satisfy the court that he has dulyapplied such property of the deceased as is proved to have come intohis possession, the decree may be executed against the judgment-debtorto the extent of the property in respect of which he has failed so tosatisfy the court in the same manner as if the decree had been againsthim personally.Arrest and DetentionArrest and detention.L.N. 299/1956,L.N. 300/1956,10 of 1969, Sch.40. (1) A judgment-debtor may be arrested in execution of a decreeat any hour and on any day, and shall as soon as practicable be broughtbefore the court, and his detention may be in any prison of the districtin which the court ordering the detention is situate, or, if such prisondoes not afford suitable accommodation, in any other place which theMinister may appoint for the detention of persons ordered by the courtsof such district to be detained:Provided that—(i) for the purpose of making an arrest under this section, nodwelling-house shall be entered after sunset and beforesunrise;(ii) no outer door of a dwelling-house shall be broken openunless such dwelling-house is in the occupancy of thejudgment-debtor and he refuses or in any way preventsthe arrest has duly gained access to any dwelling-househe may break open the door of any room in which hehas reason to believe the judgment-debtor is to be found;(iii) if the room is in the actual occupancy of a woman whois not the judgment-debtor, and who according to thecustom of her community does not appear in public, theher that she is at liberty to withdraw and, after allowinga reasonable time for her to withdraw and giving herreasonable facility for withdrawing, may enter the room

Rev. 2010] Civil Procedure CAP. 21 23for the purpose of making the arrest;(iv) where the decree in execution of which a judgmentdebtoris arrested is a decree for the payment of moneyand the judgment-debtor pays the amount of the decree(2) The Minister may, by notice in the Gazette, declare that anyperson or class of persons whose arrest might be attended with dangeror inconvenience to the public shall not be liable to arrest in executionof a decree otherwise than in accordance with such procedure as hemay direct.41. monthly allowances payable for the subsistence of a judgment-debtor.42. (1) Every person detained in prison in execution of a decreeshall be so detained—(a) where the decree is for the payment of a sum of moneyexceeding one hundred shillings, for a period not exceedingsix months; andSubsistenceallowances.L.N. 300/1956,8 of 1968, Sch.,10 of 1969, Sch.Detention andrelease.(b) in any other case, for a period not exceeding six weeks:Provided that he shall be released from such detention beforethe expiration of the said period of six months or six weeks, as thecase may be—(i) on the amount mentioned in the warrant for his detentionif the court so orders; or(iii) on the request of the person on whose application hehas been so detained, if the court so orders; or(iv) on the omission of the person, on whose applicationhe has been so detained, to pay subsistence allowance.(2) A judgment-debtor released from detention under this sectionshall not merely by reason of his release be discharged from his debt,but he shall not be liable to be rearrested under the decree in execution

24 CAP. 21 Civil Procedure[Rev. 2010of which he was detained in prison.Release on ground ofillness.43. (1) At any time after a warrant for the arrest of a judgmentdebtorhas been issued, the court may cancel it on the ground of hisserious illness.(2) Where a judgment-debtor has been arrested, the court mayin prison.(3) Where a judgment-debtor has been committed to prison, hemay be released therefrom—(athe grounds of the existence of any infectious or contagiousdisease; or(b) by the committing court or the High Court on the groundof his suffering from any serious illness.(4) A judgment-debtor released under this section may berearrested, but the period of his detention in prison shall not in theaggregate exceed that prescribed by section 42 of this Act.AttachmentProperty liable toattachment and salein execution of adecree.1 of 1981, s. 25.44. (1) All property belonging to a judgment debtor, includingis held in his name or in the name of another but on his behalf, shall beliable to attachment and sale in execution of a decree:Provided that the following shall not be liable to attachment orsale—(i) the necessary wearing apparel, cooking vessels, bedsand bedding of the judgment-debtor and of his wife andchildren, and those personal ornaments from which, inaccordance with religious usage, a woman cannot beparted;(ii) the tools and implements of a person necessary for theperformance by him of his trade or profession;(iii) where the judgment-debtor is an agriculturalist—(a

Rev. 2010] Civil Procedure CAP. 21 25any; and(btools, utensils, plant and machinery used in connectionwith stock or dairy farming or in the production of cropsor plants; and(c produce necessary to enable him to earn his livelihood;(iv) books of accounts;(v) a right to sue in damages;(vi) a right of personal service;(vii) stipends and gratuities allowed to pensioners of theGovernment, or payable out of a service family pensionpensions;in employment;(ix) a contingent or possible right or interest, including anexpectancy of succession by survivorship;(x) a right of future maintenance;(xi) any fund or allowance declared by law to be exempt fromattachment and sale in execution of a decree.(2) Nothing in this section shall affect the provisions of the ArmedForces Act or of any similar law for the time being in force.45. (1) No person in executing any process under this Act directingor authorizing seizure of movable property shall enter any dwellinghouseafter sunset and before sunrise.Cap.199.Seizure of property indwelling-house.(2) No outer door of a dwelling-house shall be broken open unlesssuch dwelling-house is in the occupancy of the judgment-debtor andhe refuses or in any way prevents access thereto; but when the personexecuting the process has duly gained access to any dwelling-house hemay break open the door of any room in which he has reason to believeany such property to be.(3) Where a room in a dwelling-house is in the actual occupancy

26 CAP. 21 Civil Procedure[Rev. 2010of a woman who, according to the custom of the country, does notappear in public, the person executing the process shall give noticeto the woman that she is at liberty to withdraw; and after allowingreasonable time for her to withdraw and giving her reasonable facilityfor withdrawing, he may enter the room for the purpose of seizing theproperty, using at the same time every precaution consistent with theseprovisions to prevent its clandestine removal.Property attached inexecution of decreesof several courts.46. (1) Where property not in the custody of a court is underattachment in execution of decrees of more courts than one, the courtwhich shall receive and realize that property and shall determine anyclaim thereto and any objection to the attachment thereof shall be thecourt of the highest grade, or, where there is no difference in gradebetween the courts, the court under whose decree the property was(2) Nothing in this section shall invalidate any proceeding takenby a court executing one of the decrees.Private alienationof property afterattachment to bevoid.47. Where an attachment has been made, any private transferor delivery of the property attached or of any interest therein, andany payment to the judgment-debtor of any debt, dividend or othermoneys contrary to such attachment, shall be void as against all claimsenforceable under the attachment.SalePurchaser’s title.Suit againstpurchaser notmaintainable onground of purchasebeing on behalf ofplaintiff.48. Where immovable property is sold in execution of a decreeand the sale has become absolute, the property shall be deemed to havevested in the purchaser from the time when the property is sold and notfrom the time when the sale becomes absolute.49. (1) No suit shall be maintained against any person claimingprescribed on the ground that the purchase was made on behalf of theplaintiff or on behalf of someone through whom the plaintiff claims.(2) Nothing in this section shall bar a suit to obtain a declarationinterfere with the right of a third person to proceed against that property,is liable to satisfy a claim of such third person against the real owner.Distribution of AssetsDistribution of assets.50. (1) Where assets are held by any court and more persons

Rev. 2010] Civil Procedure CAP. 21 27than one have before the receipt of such assets by such court lodgedapplications in court for the execution of decrees for the payment ofmoney issued against the same judgment-debtor and have not obtainedsatisfaction thereof, the assets, after deducting the costs of realization,shall be distributed amongst such decree-holders in accordance withthe priorities of the lodging of their several applications:Provided that, where any property is sold subject to a mortgageor charge, the mortgagee or encumbrancer shall not be entitled to sharein any surplus arising from the sale.(2) Every application for execution of a decree shall, at the timeof the court, with a note of the day upon which and the hour at whichsuch lodgment has been effected.(3) Nothing in this section shall affect any right of the Government.Resistance to Execution51.possession of immovable property, or that the purchaser of immovableproperty sold in execution of a decree, has been resisted or obstructedin obtaining possession of the property by the judgment-debtor or someother person on his behalf, and that such resistance or obstruction waswithout any just cause, the court may, at the instance of the decreeholderor purchaser, order the judgment-debtor or such other personto be detained in prison for a term which may extend to thirty days,and may further direct that the decree-holder or purchaser be put inpossession of the property.Resistance toexecution.PART IV—INCIDENTAL PROCEEDINGSCommissions52. Subject to such conditions and limitations as may beprescribed, the court may issue a commission—Power of court toissue commission.(a) to examine any person;(b) to make a local investigation;(c) to examine or adjust accounts; or(d) to make a partition.53. (1) A commission for the examination of any person may beCommission toanother court.

28 CAP. 21 Civil Procedure[Rev. 201010 of 1969, Sch.issued by the High Court to any subordinate court or to any advocate,subordinate court situate in a district other than the district in which thecourt of issue is situate and having jurisdiction in the place in which theperson to be examined resides.(2) Every court receiving a commission for the examination ofany person under subsection (1) shall examine him or cause him to beexamined pursuant thereto, and the commission, when it has been dulyexecuted, shall be returned, together with the evidence taken under it,to the court from which it was issued, unless the order for issuing thecommission has otherwise directed, in which case the commission shallbe returned in terms of the order.Letter of request.10 of 1969, Sch.Commission issuedby foreign court.10 of 1969, Sch.54. In lieu of issuing a commission, the High Court or asubordinate court with the sanction of the High Court may issue a letter55. Commissions issued by foreign courts for the examinationmay be from time to time authorized by the High Court.PART V—SUITS IN PARTICULAR CASESSuits by Aliens and by or against Foreign RulersWhen alien may sue.10 of 1969, Sch.56. or residing in a foreign country, shall sue in any of such courts.Explanation.—Every person residing in a foreign country thein that country without a licence in that behalf under the hand of thePresident, shall, for the purpose of subsection (2), be deemed to be analien enemy residing in foreign country.When foreign statemay sue.10 of 1969, Sch.57. the suit is to enforce a private right vested in the head of that state or(2) Every court shall take judicial notice of the fact that a foreign

Rev. 2010] Civil Procedure CAP. 21 29Interpleader58. Where two or more persons claim adversely to one another thesame debt, sum of money or other property, movable or immovable, fromanother person, who claims no interest therein other than for charges orcosts and who is ready to pay or deliver it to the rightful claimant, suchother person may institute a suit of interpleader against all the claimants,or where a suit dealing with the same subject-matter is pending mayintervene by motion on notice in such suit, for the purpose of obtaininga decision as to the person to whom the payment or delivery shall bemade, and of obtaining indemnity for himself:When interpleadersuit may beinstituted.Provided that where any suit is pending in which the rights ofall parties can be properly decided no such suit of interpleader shallbe instituted.PART VI—SPECIAL PROCEEDINGSArbitration59. All references to arbitration by an order in a suit, and allproceedings thereunder, shall be governed in such manner as may beprescribed by rules.Arbitration.Special Case60. Where any persons agree in writing to state a case for theopinion of the court, then the court shall try and determine the same inthe manner prescribed.Power to state casefor opinion of court.Suits Relating to Public Matters61. (1) In the case of a public nuisance, the Attorney-General,or two or more persons having the consent in writing of the Attorney-General, may institute a suit though no special damage has been caused,for a declaration and injunction or for such other relief as may beappropriate to the circumstances of the case.Public nuisance.(2) Nothing in this section shall limit or otherwise affect any rightof suit which may exist independently of its provisions.62. In the case of an alleged breach of any express or constructivetrust created for public purposes of a charitable or religious nature,or where the direction of the court is deemed necessary for theadministration of the trust, the Attorney-General, or two or more personshaving an interest in the trust and having obtained the consent in writingof the Attorney-General, may institute a suit, whether contentious orPublic charity.

30 CAP. 21 Civil Procedure[Rev. 2010not in the High Court to obtain a decree—(a) removing any trustee;(b) appointing a new trustee;(c) vesting any property in trustees;(d) directing accounts and inquiries;(e) declaring what proportion of the trust property or of theinterest therein shall be allocated to any particular objectof the trust;(f) authorizing the whole or any part of the trust property to belet, sold, mortgaged or exchanged;(g) settling a scheme; or(h) granting such further or other relief as the nature of thecase may require.PART VII—SUPPLEMENTAL PROCEEDINGSSupplementalproceedings.63. In order to prevent the ends of justice from being defeated,the court may, if it is so prescribed—(a) issue a warrant to arrest the defendant and bring him beforethe court to show cause why he should not give security forhis appearance, and if he fails to comply with any order forsecurity commit him to prison;(b) direct the defendant to furnish security to produce anyproperty belonging to him and to place the same at thedisposal of the court or order the attachment of any property;(c) grant a temporary injunction and in case of disobediencecommit the person guilty thereof to prison and order that hisproperty be attached and sold;(d) appoint a receiver of any property and enforce theperformance of his duties by attaching and selling hisproperty;(e) make such other interlocutory orders as may appear to thecourt to be just and convenient.

Rev. 2010] Civil Procedure CAP. 21 3164. (1) Where, in any suit in which an arrest or attachment hasbeen effected or a temporary injunction granted under section 63—(a) it appears to the court that the arrest, attachment or injunctionCompensation forarrest, attachmentor injunction on(b) the suit of the plaintiff fails and it appears to the court thatthere was no reasonable or probable ground for institutingthe same,the defendant may apply to the court, and the court may, upon suchapplication, award against the plaintiff by its order such amount, notexceeding two thousand shillings, as it deems a reasonable compensationto the defendant for the expense or injury caused to him:Provided that, a court shall not award under this section an amountexceeding the limits of its pecuniary jurisdiction.(2) An order determining an application under subsection (1)shall bar any suit for compensation in respect of the arrest, attachmentor injunction.PART VIII—APPEALS TO THE HIGH COURT AND COURT OF APPEALAppeals from Original Decrees65. (1) Except where otherwise expressly provided by this Act,and subject to such provision as to the furnishing of security as may beprescribed, an appeal shall lie to the High Court -(a) (Deleted by 10 of 1969, Sch.);Appeal from othercourts.17 of 1967, s. 39,10 of 1969, Sch.,4 of 1974, Sch.(b) from any original decree or part of a decree of a subordinatecourt, other than a magistrate’s court of the third class, on aquestion of law or fact;(cas assessor or assessors.(2) (Deleted by 10 of 1969, Sch.).66. Except where otherwise expressly provided in this Act, andsubject to such provision as to the furnishing of security as may beprescribed, an appeal shall lie from the decrees or any part of decreesand from the orders of the High Court to the Court of Appeal.Appeal from decreeof High Court.14 of 1977, Sch.

32 CAP. 21 Civil Procedure[Rev. 2010Appeal from originaldecree.decree whereno appeal frompreliminary decree.Decision whereappeal heard by twoor more judges.13 of 1980, Sch.67. (1) An appeal may lie from an original decree passed ex parte.(2) No appeal shall lie from a decree passed by the court with theconsent of parties.68. Where any party aggrieved by a preliminary decree doesnot appeal from that decree, he shall be precluded from disputing its69. Where an appeal is heard by a court consisting of two or morejudges the appeal shall be decided in accordance with the opinion of thejudges or a majority of them:Provided that where a court consisting of two judges is dividedin its opinion the appeal shall be reheard by a court consisting of anuneven number of judges being not less than three.70. (Renumbered as section 79A.).71. (Renumbered as section 79C.).Appeals from Appellate Decrees of a Subordinate CourtSecond appeal fromsubordinate court.10 of 1969, Sch.,13 of 1978, Sch.71A. (1) Except where otherwise expressly provided by this Act,and subject to such provision as to the furnishing of security as may beprescribed, an appeal shall lie to the High Court from a decree passedcourt of the third class, on a question of law only.Appeals from Appellate Decrees of the High CourtSecond appeal fromthe High Court.10 of 1969, Sch.72. (1) Except where otherwise expressly provided in this Act orby any other law for the time being in force, an appeal shall lie to theCourt of Appeal from every decree passed in appeal by the High Court,on any of the following grounds, namely—(a) the decision being contrary to law or to some usage havingthe force of law;(b) the decision having failed to determine some material issueof law or usage having the force of law;(c) a substantial error or defect in the procedure provided by thisAct or by any other law for the time being in force, which

Rev. 2010] Civil Procedure CAP. 21 33may possibly have produced error or defect in the decisionof the case upon the merits.(2) An appeal may lie under this section from an appellate decreepassed ex parte.73. (Repealed by 10 of 1969, Sch.).74. (Repealed by 10 of 1969, Sch.).Appeals from Orders75. (1) An appeal shall lie as of right from the following orders,and shall also lie from any other order with the leave of the court makingsuch order or of the court to which an appeal would lie if leave weregranted—Orders from whichappeal lies.(a) an order superseding an arbitration where the award hasnot been completed within the period allowed by the court;(b) an order on an award stated in the form of a special case;(c) an order modifying or correcting an award;(d) an order staying or refusing to stay a suit where there is anagreement to refer to arbitration;(ewithout the intervention of the court;(f) an order under section 64;(g) an order under any of the provisions of this Act imposingperson except where the arrest or detention is in executionof a decree;(h) any order made under rules from which an appeal isexpressly allowed by rules.(2) No appeal shall lie from any order passed in appeal underthis section.76. (1) Save as otherwise expressly provided, no appeal shall liefrom any order made by a court in the exercise of its original or appellatejurisdiction; but, where a decree is appealed from, any error, defect orirregularity in any order affecting the decision of the case may be setOther Orders.

34 CAP. 21 Civil Procedure[Rev. 2010forth as a ground of objection in the memorandum of appeal.(2) Notwithstanding anything contained in subsection (1), whereany party aggrieved by an order of remand from which an appeallies does not appeal therefrom, he shall thereafter be precluded fromdisputing its correctness.What court to hearappeal.77. Where an appeal from any order is allowed, it shall lie to thecourt to which an appeal would lie from the decree in the suit in whichthe order was made.General Provisions Relating to AppealsPowers of appellatecourt.78. (1) Subject to such conditions and limitations as may beprescribed, an appellate court shall have power—(a(b) to remand a case;(c) to frame issues and refer them for trial;(d) to take additional evidence or to require the evidence tobe taken;(e) to order a new trial.(2) Subject as aforesaid, the appellate court shall have the samepowers and shall perform as nearly as may be the same duties as areconferred and imposed by this Act on courts of original jurisdiction inrespect of suits instituted therein.Procedure in appealsfrom appellatedecrees and orders.79. The provisions of this Part relating to appeals from originaldecrees shall, as far as may be, apply to appeals -(a) from appellate decrees; and(b) from orders made under this Act or under any special orlocal law in which a different procedure is not provided.No decree to bealtered for error notaffecting merits orjurisdiction.10 of 1969, Sch.Summary rejection of79A. No decree shall be reversed or substantially varied, norshall any case be remanded, in appeal on account of any misjoinderof parties or causes of action or any error, defect or irregularity inany proceedings in the suit, not affecting the merits of the case or thejurisdiction of the court.79B. Before an appeal from a subordinate court to the High Court

Rev. 2010] Civil Procedure CAP. 21 35is heard, a judge of the High Court shall peruse it, and if he considersof a decree or order appealed against he may, notwithstanding section79C, reject the appeal summarily.appeal.17 of 1967, s.40,38 of 1968, Sch.,10 of 1969, Sch.79C. Appeals from subordinate courts shall be heard by one judgeof the High Court except when in any particular case the Chief Justiceshall direct that the appeal be heard by two or more judges of the HighCourt; and such direction may be given before the hearing of the appealor at any time before judgment is delivered.79D. No second appeal from a decree passed in appeal by theHigh Court shall lie except on the grounds mentioned in section 72.Mode of hearingappeal.10 of 1969, Sch.Grounds for secondappeal from HighCourt.10 of 1969, Sch.79E. No second appeal from a decree passed in appeal by theHigh Court shall lie in any suit when the amount or value of the subjectmatterof the original suit does not exceed ten thousand shillings unlessappeal is to be heard.79F. A person who has been allowed to take, defend or be aparty to any legal proceedings in a subordinate court as a pauper maynot appeal to the High Court, or from the High Court to the Court ofAppeal, except with the leave of the Court before whom the proceedingsappealed against were heard or (if such leave is refused) unless specialis to be heard.79G. Every appeal from a subordinate court to the High Courtor order appealed against, excluding from such period any time whichthe lower court may certify as having been requisite for the preparationand delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if theNo second appealfrom High Court incertain cases.10 of 1969, Sch.,21 of 1990.Appeals by paupers.10 of 1969, Sch.appeals fromsubordinate courts.10 of 1969, Sch.PART IX—REVIEW80. Any person who considers himself aggrieved—Review.(a) by a decree or order from which an appeal is allowed bythis Act, but from which no appeal has been preferred; or

36 CAP. 21 Civil Procedure[Rev. 2010(b) by a decree or order from which no appeal is allowed bythis Act,may apply for a review of judgment to the court which passed thedecree or made the order, and the court may make such order thereonPART X—RULESRules Committee.39 of 1956, s. 5,14 of 1977, Sch.13 of 1978, Sch.10 of 1997,6 of 2009, Sch.81. (1) There shall be a Rules Committee consisting of two judgesof the High Court, two judges of the Court of Appeal, the Attorney-General and two advocates, one to be nominated by the Law Societypower to make rules not inconsistent with this Act and, subject thereto,to provide for any matters relating to the procedure of civil courts.(1A) The judges referred to in subsection (1) shall be appointedby the Chief Justice, who shall nominate one of them to be chairman ofthe Committee, and the Chief Justice may himself elect to be a memberof the Committee in which case he shall be the chairman.(2) In particular, and without prejudice to the generality of thepowers conferred by subsection (1), such rules may provide for all orany of the following matters namely—(a) the service of summonses, notices and other processesby post or in any other manner either generally or in any(b) the maintenance and custody, while under attachment, oflivestock and other movable property, the fees payable forsuch maintenance and custody, the sale of such livestock andproperty, and the proceeds of such sale;(c) procedure in suits by way of counterclaim and the valuationof such suits for the purposes of jurisdiction;(d) procedure in garnishee and charging orders either in additionto, or in substitution for, the attachment and sale of debts;(e) procedure where the defendant claims to be entitled tocontribution or indemnity over against any person, whethera party to the suit or not;(f) summary procedure—(i) in suits in which the plaintiff seeks only to recover a debt

Rev. 2010] Civil Procedure CAP. 21 37or liquidated demand in money payable by the defendant,with or without interest, arising on a contract express orimplied; or on an enactment where the sum sought to bedebt other than a penalty; or on a guarantee, where theclaim against the principal is in respect of a debt or aliquidated demand only or on a trust; or(ii) in suits for the recovery of immovable property, with oragainst a tenant whose term has expired or has been dulydetermined for non-payment of rent, or against personsclaiming under such tenant;(ff) the selection of mediators and the hearing of matters referredto mediation under this Act.(g) procedure by way of originating summons;(h) consolidation of suits, appeals and other proceedings;(ijudicial, quasi-judicial and non-judicial duties; and(j) all forms, registers, books, entries and accounts which maybe necessary or desirable for the transaction of the businessof civil courts.(3) The Chief Justice may, in consultation with the RulesCommittee, issue practice notes or directions to resolve proceduralPART XI—MISCELLANEOUS PROVISIONS82. (1) Women who according to the customs and manners oftheir community ought not to be compelled to appear in public shallbe exempt from personal appearance in court.Exemption of certainwomen.(2) Nothing herein contained shall be deemed to exempt thosewomen from arrest in execution of civil process.83. The provisions of section 40, 41 and 43 shall apply so far asmay be to all persons arrested under this Act.84. to arrest under civil process while going to, presiding in or returningArrest other than inexecution of decree.Exemption fromarrest under civil

38 CAP. 21 Civil Procedure[Rev. 2010process.from his court.(2) Where any matter is pending before a tribunal havingjurisdiction therein, or believing in good faith that it has suchjurisdiction, the parties thereto, their advocates and recognized agents,and their witnesses acting in obedience to a summons shall be exemptfrom arrest under civil process other than process issued by such tribunalfor contempt of court while going to or attending such tribunal for thepurpose of such matter, and while returning from such tribunal.(3) Nothing in subsection (2) shall enable a judgment-debtor toclaim exemption from arrest under an order for immediate execution,or where such judgment-debtor attends to show cause why he wouldnot be committed to prison in execution of a decree.Procedure relatingto arrest andattachment.85. (1) Where an application is made to a subordinate court thatany person shall be arrested or that any property shall be attached underany provision of this Act, and where the person resides or is found, orthe property is situate, outside the local limits of the jurisdiction of thecourt to which the application is made, the court may in its discretionissue a warrant of arrest, or make an order of attachment, and send tothe magistrate of the subordinate court within the local limits of whosejurisdiction that person resides or is found or the property is situate thewarrant or order together with the probable amount of the costs of thearrest or attachment.(2) On the issue of a warrant or order under subsection (1) themagistrate of the subordinate court within whose jurisdiction the personto be arrested resides or is found or the property to be attached is situate,as the case may be, shall have power—(a) to endorse and execute the warrant or order; or(b) to issue, before the endorsement, a provisional warrantor order for the arrest of the defendant or the attachmentof the property upon receipt of such telegraphic or otherinformation as may satisfy him that a warrant or order hasbeen issued:Provided that a person arrested or property attached underthe provisional warrant or order shall be discharged orreleased from attachment unless the original warrant ororder is produced and endorsed within such time as mayseem reasonable.(3) The court ordering an arrest under subsection (2) shall uponreceipt of the original warrant send the person arrested to the court by

Rev. 2010] Civil Procedure CAP. 21 39which the original warrant was issued, unless that person shows causeto the satisfaction of the former court why he should not be so sent orcourt or for satisfying any decree that may be or may have been passedagainst him by that court, in either of which cases the court making thearrest shall release him and shall inform the court by which the originalwarrant was issued accordingly.(4) Where an application is made to a judge of the High Courtthat any person shall be arrested or that any property shall be attachedunder any provision of this Act, and where owing to distance or for executed, it shall be competent for another judge of the High Court toissue a provisional warrant or order for the arrest of the defendant orthe attachment of the property upon receipt of such telegraphic or otherinformation as may satisfy him that a warrant or order has been issued:Provided that a person arrested or property attached under theprovisional warrant or order shall be discharged or released fromattachment unless the original warrant or order is produced within suchtime as may seem reasonable.(5) The judge issuing a provisional warrant under subsection (4)original warrant, unless such person shows cause why he should notat such place as aforesaid or for satisfying any decree that may be ormay have been passed against him, in either of which cases the judgeordering the arrest shall release him and shall inform the judge by whomthe original warrant was issued accordingly.86. (1) The language of the High Court and of the Court ofAppeal shall be English, and the language of subordinate courts shallbe English or Swahili.Language of courts.17 of 1967, s. 41,14 of 1977, Sch.(2) (Deleted by 17 of 1967, s. 41.).(3) Written applications to the High Court and to the Court ofAppeal shall be in English and to subordinate courts in English orSwahili.87. (1) Any court may in any cause or matter pending before itin which questions may arise as to the laws or customs of any tribe,caste or community, summon to its assistance one or more competentassessors, and such assessors shall attend and assist accordingly.Assessors.(2) In any Admiralty or Vice-Admiralty cause of salvage, towage

40 CAP. 21 Civil Procedure[Rev. 2010or collision, the court, whether it be exercising its original or its appellatejurisdiction, may summon to its assistance, in such manner as it maydirect or as may be prescribed, two competent assessors; and suchassessors shall attend and assist accordingly.(3) Every such assessor shall be summoned in such manner asthe court may direct, and shall receive such fees for his attendance asmay be prescribed to be paid in such manner as the court may direct.Administration of88.(a) any court, magistrate, registrar of a court, notary public orcommissioner of oaths; or(b appoint in this behalf,may administer the oath to the deponent.Miscellaneousproceedings.Orders and notices tobe in writing.Application forrestitution.89. The procedure provided in this Act in regard to suits shall befollowed as far as it may be applicable in all proceedings in any courtof civil jurisdiction.90. All orders or notices served on or given to any person underthis Act shall be in writing.91. (1) Where and in so far as a decree is varied or reversed, thebe made as will, so far as may be, place the parties in the position theywould have occupied but for such decree or such part thereof as hasbeen varied or reversed; and for this purpose the court may make anyorders, including orders for the refund of costs and for the payment ofconsequential on such variation or reversal.(2) No suit shall be instituted for the purpose of obtaining anyrestitution or other relief which could be obtained by application undersubsection (1).Enforcement ofliability of surety.92. Where any person has become liable as surety—(a) for the performance of any decree or any part thereof; or(b) for the restitution of any property taken in execution of adecree; or

Rev. 2010] Civil Procedure CAP. 21 41(ccondition imposed on any person, under an order of the courtin any suit or in any proceeding consequent thereon,the decree or order may be executed against him, to the extent to whichhe has rendered himself personally liable, in the manner herein providedfor the execution of decrees, and such person shall for the purposes ofappeal be deemed a party within the meaning of section 34:Provided that such notice in writing as the court in each case93. In all suits to which any person under disability is a party,any consent or agreement as to any proceeding shall, if given or madewith the express leave of the court by the next friend or guardian forthe suit, have the same force and effect as if such person were under nodisability and had given such consent or made such agreement.94. Where the High Court considers it necessary that a decreepassed in the exercise of its original civil jurisdiction should be executedbefore the amount of the costs incurred in the suit can be ascertained bytaxation, the court may order that the decree shall be executed forthwith,except as to so much thereof as relates to the costs; and as to so muchthereof as relates to the costs that the decree may be executed as soonas the amount of the costs shall be ascertained by taxation.95.doing of any act prescribed or allowed by this Act, the court may, inits discretion, from time to time, enlarge such period, even though the96. Where the whole or any part of any fee prescribed for anydocument by the law for the time being in force relating to court feeshas not been paid, the court may, in its discretion, at any stage, allowthe person by whom such fee is payable to pay the whole or part, as thecase may be, of the fee; and upon such payment the document in respectof which such fee is payable shall have the same force and effect as ifConsent oragreement bypersons underdisability.Execution of decreeof High Court beforecosts ascertained.Enlargement of time.Power to make upfees.97. (Renumbered as section 3A.).98. Where any person neglects or refuses to comply with a decreeor order directing him to execute any conveyance, contract or otherdocument, or to endorse any negotiable instrument, the court may, onsuch terms and conditions, if any, as it may determine, order that theconveyance, contract or other document shall be executed or that thenegotiable instrument shall be endorsed by such person as the court mayExecution ofinstruments by orderof court.

42 CAP. 21 Civil Procedure[Rev. 2010nominate for that purpose, and a conveyance, contract, document orinstrument so executed or endorsed shall operate and be for all purposesavailable as if it had been executed or endorsed by the person originallydirected to execute or endorse it.Amendment ofjudgments, decrees ororders.General power toamend.99. Clerical or arithmetical mistakes in judgments, decrees ororders, or errors arising therein from any accidental slip or omission,may at any time be corrected by the court either of its own motion oron the application of any of the parties.100. The court may at any time, and on such terms as to costs orin a suit; and all necessary amendments shall be made for the purposeof determining the real question or issue raised by or depending on theproceeding.

Rev. 2010] Civil Procedure CAP. 21 43[Subsidiary]SUBSIDIARY LEGISLATIONL.N. 151/2010.CIVIL PROCEDURE RULES, 2010RULES UNDER SECTION 81ARRANGEMENT OF RULESORDER 1PARTIES TO SUITSRule1—Who may be joined as plaintiffs.2—Power of court to order separate trial.3—Who may be joined as defendants.4—Court may give judgment for or against one or more of jointparties.5—Defendant need not be interested in all relief claimed.6—Joinder of parties liable on same contract.7—When plaintiff in doubt from whom redress to be sought.8—One person may sue or defend on behalf of all in sameinterest.9—Misjoinder and non-joinder.10—Substitution and addition of parties.11—Government proceedings.12—Conduct of suit.13—Appearance of one of several plaintiffs or defendants forothers.14—Practice.15—Notice to third and subsequent parties.16—Notice to Government as third party.17—Default of appearance by third party.18—Default of appearance by Government as third party.19—Judgment against third party in default.20—No judgment against Government without leave of the court.21—Judgment after trial against third party in default.22—Appearance of third party and directions.23—Costs.24—Defendant claiming against a co-defendant.25—Procedure.ORDER 2PLEADINGS GENERALLYRule1—Pleadings generally.2—Formal requirements.3—Facts, not evidence, to be pleaded.

44[Subsidiary]CAP. 21 Civil Procedure [Rev. 20105—Matter may be pleaded whenever arising.6—Departure.7—Particulars in defamation actions.8—Particulars of evidence in mitigation.9—Points of law.10—Particulars of pleading.11—Admissions and denials.12—Denial by joinder of issue.13—Close of pleadings.14—Technical objection.15—Striking out pleadings.16—Pleading to be signed.17—Proceedings in rem.ORDER 3FRAME AND INSTITUTION OF SUITRule1—Commencement of suit and case track allocation.2—Documents to accompany suit.4—Suit to include the whole of claim.5—Joinder of causes of action.6—Only certain claims may be joined with a suit for recoveryof immovable property.7—Claims by or against executor, administrator or heir.8—Power of court to order separate trials.9—Declaratory judgment.ORDER 4PLAINTRule1—Particulars of plaint.2—Money suits.3—Where the subject-matter of the suit is immovable property.4—Capacity of parties.5—Defendant’s interest and liability to be shown.6—Statement of relief claimed.7—Relief founded on separate grounds.8—Copies of plaint.9—Return of plaint.

Rev. 2010] Civil Procedure CAP. 21 45ORDER 5[Subsidiary]ISSUE AND SERVICE OF SUMMONSRule1—Issue of summons.2—Duration and renewal of summons.3—Service on a corporation.4—Concurrent summons.5—Delivery or transmission of summons for service.6—Mode of service.7—Service on several defendants.8—Service to be on defendant in person or on his agent.9—Mode of service on the Government.10—Service on agent by whom defendant carries on business.11—Service on agent in charge in suits for immovable property.12—Service on agent or adult.13—Person served to sign acknowledgment.14—Procedure when defendant refuses to accept service or cannotbe found.17—Substituted service.18—Service on defendant in prison.20—Duty on person to whom the summons is sent.22—Service of other process out of the jurisdiction.23—Service under contract.24—Probate and marriage suits.25—Application to be supported by evidence.28—Notice in lieu of summons.29—Service of notice of summons in a foreign country.30—Extension of procedure to any order or notice.31—Application to Government.32—Procedure33—General powers of the court.34—Request for service from foreign country.ORDER 6APPEARANCE OF PARTIESRule1—Time for appearance.

46[Subsidiary]CAP. 21 Civil Procedure [Rev. 20102—Mode of appearance.3—Defendant’s address for service.5—Defendants appearing by same advocate.6—Delivery of documents to address for service.ORDER 7DEFENCE AND COUNTERCLAIMRule1—Defence.2—Defence of tender.3—Set-off and counterclaim.4—Set-off or counterclaim in proceedings by Government.5—Documents to accompany defence or counterclaim.6—Persons in representative capacity.7—Pleading a counterclaim.8—Title of counterclaim.9—Claim against person not party.10—Appearance by added parties.11—Reply to counterclaim.12—Exclusion of counterclaim.13—Discontinuance, stay or dismissal of suit.14—Judgment for balance.15—Defence or set-off founded on separate grounds.16—New ground of defence.17—Subsequent pleadings.18—Filing subsequent pleadings.19—Register of documents.20—Service of documents.ORDER 8AMENDMENT OF PLEADINGSRule1—Amendment of pleading without leave.2—Application for disallowance of amendment.3—Amendment of pleading with leave.4—Amendment of originating process.5—General power to amend.6—Failure to amend after order.7—Mode of amendment.8—Procedure.

Rev. 2010] Civil Procedure CAP. 21 47ORDER 9[Subsidiary]RECOGNIZED AGENTS AND ADVOCATESRule1—Applications, appearance or acts in person, by recognized agentor by advocate.2—Recognized agents.3—Service of process on recognized agent.4—Agent to accept service.5—Change of advocate.6—Service of notice of change of advocate.7—Notice of appointment of advocate.8—Notice of intention to act in person.9—Change to be effected by order of court or consent of parties.10—Procedure.11—Power to act in person or through new advocate.12—Removal of advocate from record at instance of anotherparty.13—Withdrawal of advocate who has ceased to act for a party.ORDER 10CONSEQUENCE OF NON-APPEARANCE, DEFAULT OF DEFENCE ANDFAILURE TO SERVERule1—Suits against infants and persons of unsound mind.3—Failure to serve.4—Judgment upon a liquidated demand.5—Liquidated demand against several defendants.6—Interlocutory judgment.7—Interlocutory judgment where several defendants.8—Judgment in default against the Government.9—General rule where no appearance entered.10—Default of defence.11—Setting aside judgment.ORDER 11PRE-TRIAL DIRECTIONS AND CONFERENCESRule1—Application.2—Pre-trial questionnaire.3—Case conference.4—Case conference order.5—Settlement conference order.6—Trial conference questionnaire.7—Trial conference.

48[Subsidiary]CAP. 21 Civil Procedure [Rev. 20108—Trial conference order.9—Case managers.ORDER 12HEARING AND CONSEQUENCE OF NON-ATTENDANCERule1—When neither party attends.2—When only plaintiff attends.3—When only defendant attends.4—When some only of plaintiffs attend.5—When some only of defendants attend.6—Effect of dismissal.7—Setting aside judgment or dismissal.ORDER 13ADMISSIONSRule1—Notice of admission of case.2—Judgment on admissions.ORDER 14PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTSRule1—Endorsements on documents admitted in evidence.2—Endorsements on copies of admitted entries in books, accounts,and records.3—Record of admitted and return of rejected documents.4—Court may order any document to be impounded.5—Return of admitted documents.6—Court may send for records of its own or of other court.7—Provisions as to documents applied to material objects.ORDER 15ISSUESRule1—Framing of issues.2—Materials from which issues may be framed.

Rev. 2010] Civil Procedure CAP. 21 49ORDER 16[Subsidiary]SUMMONING AND ATTENDANCE OF WITNESSESRule1—Summons to attend to give evidence or produce documents.2—Expenses of witnesses to be paid into court on applying for summons.detained more than one day.6—Summons to produce documents.7—Power to require persons present in court to give evidence or producedocument.8—Summons, how served.9—Time for serving summons.10—Procedure where witness fails to comply with summons.11—If witness appears, attachment may be withdrawn.12—Procedure if witness fails to appear.13—Mode of attachment.14—Duty of persons summoned to give evidence or produce document.15—When summoned persons may depart.16—Application of rules 10 to 13.17—Procedure where witness apprehended cannot give evidence orproduce document.18—Consequence of refusal of a party to give evidence when calledon by the court.19—Rules as to witnesses to apply to parties summoned.ORDER 17PROSECUTION OF SUITSRule1—Hearing to be from day to day.2—Notice to show cause why suit should not be dismissed.4—Court may proceed notwithstanding either party fails to produceevidence.ORDER 18HEARING OF THE SUIT AND EXAMINATION OF WITNESSESRule1—Right to begin.2—Statement and production of evidence.3—Witnesses to be examined in open court.4—How evidence to be recorded.5—Any particular question and answer may be taken down.

50[Subsidiary]CAP. 21 Civil Procedure [Rev. 20106—Questions objected to and allowed by court.7—Remarks on demeanour of witness.8—Power to deal with evidence taken before another judge.9—Power to examine witness immediately.10—Court may recall and examine witness.11—Power of court to inspect.ORDER 19AFFIDAVITSRule2—Power to order attendance of deponent for cross-examination.4—Deponent’s particulars.6—Striking out matter.9—Procedure.ORDER 20APPLICATION FOR AN ACCOUNTRule1—Order for accounts.2—Order for accounts on counterclaim.3—Procedure.4—Orders by court.ORDER 21JUDGMENT AND DECREERule1—Judgment when pronounced.2—Power to pronounce judgment written by another judge.3—Judgment to be signed.4—Contents of judgment.5—Court to state its decision on each issue.6—Judgment affecting registered title to land.7—Contents of decree.8—Preparation and dating of decrees and orders.9—Costs.10—Decree for recovery of immovable property.11—Decree for delivery of movable property.12—Decree may direct payment by installments.

Rev. 2010] Civil Procedure CAP. 21 5114 —Decree in administration suit.15 —Decree in suit for dissolution of partnership.16—Decree in suit for account between principal and agent.17—Special directions as to accounts.18—Decree in suit for partition of property or separate possession ofa share.19—Decree where set-off is allowed.[Subsidiary]ORDER 22EXECUTION OF DECREES AND ORDERSRule1—Modes of paying money under decree.2—Payment out of court to decree-holder.3—Lands situate in more than one jurisdiction.4—Procedure where court desires that its own decree shall be executedby another court.6 —Application for execution.7—Oral and written applications.8 —Application for attachment of movable property not in judgmentdebtor’s possession.9—Application for attachment of immovable property to contain certainparticulars.cases.11—Application for execution by joint decree-holder.12—Application for execution by transferee of decree.13—Procedure on receiving an application for execution of decree.14—Execution in case of cross-decrees.15—Execution in case of cross-claims under same decree.16—Cross-decrees and cross-claims in mortgage suits.17—Simultaneous execution.18 —Notice to show cause against execution in certain cases.19—Procedure after issue of notice.20—Process for execution.21—Endorsement on process.22—When court may stay execution.23—Liability of judgment-debtor discharged.24—Order of court which passed decree or of appellate court to bebinding upon court applied to.25—Stay of execution pending suit between decree-holder andjudgment-debtor.26—Decree for payment of money.29—Decree for immovable property.30—Decree for delivery of immovable property when in occupancyof tenant.

52[Subsidiary]CAP. 21 Civil Procedure [Rev. 201031—Discretionary power to permit judgment-debtor to show causeagainst detention in prison.32—Warrant for arrest to direct judgment-debtor to be brought up.33—Subsistence allowance.34—Proceedings on appearance of judgment-debtor in obedience tonotice or after arrest.35—Examination of judgment-debtor as to his property.matter.37—Attachment of movable property other than agricultural produce,in possession of judgment-debtor.38—Attachment of agricultural produce.39—Provisions as to agricultural produce under attachment.40—Attachment of share and other property not in possession ofjudgment-debtor.41—Attachment of share in movables.42 —Attachment of salary or allowance.43—Attachment of partnership property.45—Attachment of negotiable instrument.46—Attachment of property in custody of court.47—Attachment of decree.48 —Attachment of immovable property.49 —Removal of attachment after satisfaction of decree.50—Determination of attachment.51—Objection to attachment.52—Stay of execution.53—Raising of attachment.54—Notice of intention to proceed.55—Power to order property attached to be sold and proceeds to be paidto person entitled.56—Sale, by whom conducted and how made.58—Time of sale.59—Adjournment or stoppage of sale.60—Defaulting purchaser answerable for loss on re-sale.61—Decree-holder not to bid for or buy property without permission.63—Negotiable instruments and shares in corporations.64 —Sale by public auction.65—Irregularity not to vitiate sale, but any person injured may sue.66—Delivery of movable property, debts and shares.67—Vesting order in case of other property.68 —Sale of immovable property.69—Deposit by purchaser and re-sale on default.70—Payment of purchase-money.71—Procedure in default of payment.73—Bid of co-sharer to have preference.74—Application to set aside sale on deposit.75—Application to set aside sale on ground of irregularity or fraud.

Rev. 2010] Civil Procedure CAP. 21 5376—Application by purchaser to set aside sale on ground ofjudgment- debtor having no saleable interest.77—Sale, when to become absolute or be set aside.78—Return of purchase-money in certain cases.80—Delivery of property in occupancy of judgment-debtor.81—Delivery of property in occupancy of tenant.82—Resistance or obstruction to possession of immovable property.83—Resistance or obstruction by judgment-debtor.85—Rules not applicable to transfer pendente lite.86—Order conclusive subject to regular suit.[Subsidiary]ORDER 23ATTACHMENT OF DEBTSRule1—Order for the attachment of debts.2—Attachment of deposits.3—Effect of garnishee order.4—Execution against garnishee.5—Trial of liability of garnishee.6—Claim of third person.7—Trial of claim of third person.8—Payment by or execution on the garnishee is a valid discharge.9—Record of proceedings.10—Costs of proceedings.ORDER 24DEATH AND BANKRUPTCY OF PARTIESRule1—No abatement by party’s death if right survives.2—Procedure where one of several plaintiffs or defendants dies andright to sue survives.3—Procedure in case of death of one of several plaintiffs or of soleplaintiff.4—Procedure in case of death of one of several defendants or of soledefendant.5—Determination of question as to legal representative.6—When plaintiff’s bankruptcy bars suit.7—Effect of abatement or dismissal.9—Application of Order to appeals.10—Application of Order to execution proceedings.

54[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 25WITHDRAWAL, DISCONTINUANCE AND ADJUSTMENT OF SUITSRule1—Withdrawal by plaintiff.2—Discontinuance.3—Costs.4—Stay of subsequent suit.5—Compromise of a suit.ORDER 26SECURITY FOR COSTSRule1—Security for costs.2—Application before defence.3—Where two or more defendants.4—Claims by non-resident plaintiff.5—Effect of failure to give security.6—Investment of security.ORDER 27PAYMENT INTO COURT AND TENDERRule1—Payment into court.2—Acceptance of payment.3—Money remaining in court.4—Payment into court where several defendants.5—Payment into court on a counterclaim.7—Register of payments to be kept.8 —Investment of payment.9—Money paid in under order.10—Moneys recovered by infants or persons of unsound mind.ORDER 28COMMISSION AND REFERENCESRule1—Cases in which court may issue commission to examine witnesses.2—Where witness resides within court’s jurisdiction.3—Persons for whose examination commission may issue.4—Request to examine witness abroad.5—Court to examine witness pursuant to commission.6 —Return of commission with deposition of witness.7 —Commission to make investigations.

Rev. 2010] Civil Procedure CAP. 21 558 —Procedure of commissioner.9 —Examination of accounts by referee.10 —Instructions to referee.11—Partition of immovable property.12 —Procedure upon partition.13—Expenses of commission to be paid into court.14—Powers of commissioner.15—Attendance and examination of witnesses before commissioner.16—Parties to appear before commissioner.17—Commissions issued by foreign courts.18—Evidence in proceedings by or against the Government.[Subsidiary]ORDER 29PROCEEDINGS BY OR AGAINST THE GOVERNMENTRule1—Interpretation.2—Rules to apply to proceedings by or against the Government.Proceedings Act.4—Attachment of debts or appointment of a receiver.ORDER 30SUITS BY OR AGAINST FIRMS AND OTHER PERSONS CARRYING OUTBUSINESS IN NAMES OTHER THANTHEIR OWNRule2—Disclosure of partners’ names.3—Service.4—Notice in what capacity served.5—Appearance of partners.6—No appearance except by partners.9—Suit against person carrying on business in name other than hisown.ORDER 31SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORSRulein trustees.2—Joinder of trustees, executors and administrators.

56[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 32SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MINDRule1—Minor to sue by next friend.2—Where suit is instituted without next friend.3—Guardian ad litem.4—Who may act as next friend or be appointed guardian for the suit.5—Representation of minor by next friend or guardian for the suit.6—Receipt of property or money on behalf of minor.7—Agreement or compromise of suit on behalf of minor.8—Retirement of next friend.9—Removal of next friend.10—Stay of proceedings.11—Retirement, removal, or death of guardian ad litem.12—Procedure where minor attains majority.13—Where minor co-plaintiff attaining majority desires to repudiate suit.14—Unreasonable or improper suit.15—Application of rules to persons of unsound mind.ORDER 33SUITS BY PAUPERSRule1—Suits may be instituted by a pauper.2—Contents of application.3—Presentation of application.4—Examination of applicant.5—Rejection of application.6—Notice of day for receiving evidence of applicant’s pauperism.7—Procedure at hearing.8—Procedure if application admitted.9—Dispaupering.10—Costs where pauper succeeds.11—Procedure where pauper fails.12—Government may apply for payment of court fees.13—Government to be deemed a party.14—Refusal to allow applicant to sue as pauper to bar subsequentapplication of like nature.15—Costs.16—Court fees.17—Recovery of court fees from pauper.18—Procedure.

Rev. 2010] Civil Procedure CAP. 21 57ORDER 34[Subsidiary]INTERPLEADERRule1—Practice under this Order.2—Averments to be proved by applicant.3—Stay of suit.4—Order upon summons.5—Summary procedure.6—Costs and other orders.7—Order upon a claimant’s failure to appear.8—Questions of law.9—Adverse title of claimants.ORDER 35PROCEEDINGS BY AGREEMENT OF PARTIESRule1—Power to state case for court’s opinion.2—Where value of subject-matter must be stated.4—Parties to be subject to court’s jurisdiction.5—Hearing and disposal of case.ORDER 36SUMMARY PROCEDURERule1—Summary judgment.2—Defendant may show cause.3—Application by Government.4—Time for defence.5—Judgment for part of claim.6—Procedure where more than one defendant.7—Leave to defend.8—Costs.9—Forms.10—Setting aside of judgment.ORDER 37ORIGINATING SUMMONSRule1—Who may take out originating summons and in respect of whatmatters.2—Order for administration of estate or trust.3—Summons by vendor or purchaser of land.

58CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]4—Summons by a mortgagee, mortgagor and others.5—Caveats.6—Extension of limitation period.7—Adverse possession.8—Application under the Registered Land Act.9—Application under Chattels Transfer Act.10—Summons by a member of a partnership.11—Summons by persons interested in deeds or wills.12—Variation of trusts.13—Discretion upon summons for construction of document.14—Forms.16—Directions.17—Procedure.18—Evidence and directions upon hearing of summons.19—Powers of court upon hearing of summons.20—Court may make orders as to costs incurred by any party.ORDER 38SELECTION OF TEST SUITRule1—Staying several suits against the same defendant.2—Staying similar suits upon application by defendant.ORDER 39ARREST AND ATTACHMENT BEFORE JUDGMENTRule1—Where defendant may be called upon to furnish security forappearance.2—Security.3—Procedure on application by surety to be discharged.security.5—Where defendant may be called upon to furnish security forproduction of property.6—Attachment where cause not shown or security not furnished.7—Mode of making attachment.8—Investigation or claim to property attached before judgment.9—Removal of attachment when security furnished or suit dismissed.10—Attachment before judgment not to affect rights of strangers norbar decree-holder from applying for sale.11—Property attached before judgment not to be re-attached in executionof decree.

Rev. 2010] Civil Procedure CAP. 21 59ORDER 40[Subsidiary]TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERSRule1—Cases in which temporary injunction may be granted.2—Injunction to restrain breach of contract or other injury.3—Consequence of breach.4—Notice of application.5—Ruling of the court.6—Lapse of injunction.7—Order for injunction may be discharged, varied, or set aside.9—Power to order interim sale.10—Detention, preservation and inspection of property.11—Deposit of money and other deliverables.ORDER 41APPOINTMENT OF RECEIVERSRule1—Appointment of receivers.2—Remuneration.3—Duties.4—Enforcement of receiver’s duties.5—Removal.ORDER 42APPEALSRule1—Form of appeal.2—Filing of decree or order.3—Amendment of memorandum of appeal.4—Grounds which may be taken in appeal.5—One of several plaintiffs or defendants may obtain reversal of wholedecree where it proceeds on ground common to all.6—Stay in case of appeal.7—Security in case of order for execution of decree appealed from.8—No security to be required from the Government.9—Exercise of powers in appeal from order made in execution of decree.11—Directions under section 79B.12—Service of memorandum.13—Directions before hearing.14—Security for costs.15—Notice to be given where decree appealed from.16—Filing declaration and written submissions.17—Service of hearing notice.

60[Subsidiary]CAP. 21 Civil Procedure [Rev. 201018—Contents of notice.19—Right to begin.20—Dismissal of appeal for appellant’s default.21—Re-admission of appeal dismissed for default.22—Power to adjourn hearing and direct persons appearing interestedto be made respondents.23—Re-hearing on application of respondent against whom ex partedecree made.24—Remand of cases.26—Power to order new trial.27—Production of additional evidence in appellate court.28—Mode of taking additional evidence.30—Where court consists of more than one judge.31—What judgment may direct.32—Power of appellate court on appeal.33—Preparation and contents of decree.from.35—Dismissal for want of prosecution.ORDER 43APPEALS FROM ORDERSRule1—Appeals from Orders.2—Procedure.3—Saving.ORDER 44PAUPER APPEALSRule1—Who may appeal as a pauper.2—Inquiry into pauperism.ORDER 45REVIEWRule1—Application for review of decree or order.2—To whom applications for review may be made.3—Application where rejected, where granted.4—Application where more than one judge hears.

Rev. 2010] Civil Procedure CAP. 21 615—Re-hearing upon application granted.6—Bar of subsequent applications.[Subsidiary]ORDER 46ARBITRATION UNDER ORDER OF A COURT AND OTHER ALTERNATIVEDISPUTE RESOLUTIONRule1—Parties to a suit may apply for arbitration.2—Appointment of arbitrator.3—Form of order.4—Provisions where two or more arbitrators.5—Power to appoint arbitrator.6—Power of arbitrator or umpire appointed by court.7—Summoning witnesses and default.8—Extension of time for making award.9—Where umpire may arbitrate in lieu of arbitrators.12—Statement of special case by arbitrators or umpire.13—Costs of arbitration.14—Power to modify or correct award.15—Power to remit for reconsideration.16—Grounds for setting aside award.17—Time for application.18—Judgment on award.19—Forms.20—Alternative dispute resolutionORDER 47DISTRICT REGISTRIESRule1—Institution of suits in High Court.2—Schedule of District Registries and areas.within that area.5—Proceedings against the Government.6—Place of trial.7—All preliminary steps taken before the District Registrar.8—Appeal from decision of District Registrar.9—Taxation in District Registries.10—Appeals from subordinate courts.

62[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 48MISCELLANEOUSRule1—Process to be served at expense of party issuing.2—Service of orders, notices and documents.3—Use of forms.4—Special rules of procedure not contained in these Rules.ORDER 49SPECIAL POWERS OF REGISTRARSRule2—when Judgment may be entered by Registrar.3—Consent orders.4—No judgment against Government in default of pleading withoutleave of court.5—Execution may be ordered by Registrar.6—Registrar a Civil Court.7—Hearing of applications.ORDER 50TIMERule1—Month means calendar month.2—Exclusion of Sundays and public holidays.4—When time does not run.5—Time for giving security for costs, when not to be reckoned.6—Power to enlarge time.7—Enlargement of time by consent.8—Computation of days.9—Time of day of service.ORDER 51APPLICATIONSRule1—Procedure.2—Applications under Section 25 (2) of the Government ProceedingsAct.3—Notice to parties.4—Contents of notice.5—Dismissal or adjournments for want of notice.6—Adjournment of hearing.

Rev. 2010] Civil Procedure CAP. 21 637—Service of notice on defendant served with summons to enterappearance but not appearing.8—Transfer from court to chambers.9—Transfer from chambers to court.10—Provision under which application is made to be stated.11—Costs and other relief.12—When application are deemed to be made.13—Signature on applications and service.14—Grounds of opposition to application in High Court.15—Setting aside an ex parte order.16—Court may limit time for submissions.[Subsidiary]ORDER 52THE ADVOCATES ACTRule1—Interpretation.2—Appeals to the Chief Justice.3—Applications with respect to remuneration.4—Power to order advocate to deliver accounts and documents.5—Application for taxation by third parties.6—Application for charging order.7—Application for order for enforcement of an undertaking.8—Title and service of appeal.9—Discontinuance of appeal.10—Procedure.ORDER 53APPLICATIONS FOR JUDICIAL REVIEWRule1—Applications for mandamus, prohibition and certiorari to be madeonly with leave.2—Time for applying for certiorari in certain cases.3—Application to be by notice of motion.5—Applicant to have right to begin.6—Right to be heard in opposition.7—Provisions as to orders of certiorari for the purpose of quashingproceedings.ORDER 54REVOCATION AND TRANSITIONAL PROVISIONSRule1—Revocation.2—Transitional provisions.

64[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 1PARTIES TO SUITS[Order 1, rule 1.]Who may be joinedas plaintiffs.[Order 1, rule 2.]Power of court toorder separate trial.[Order 1, rule 3.]Who may be joinedas defendants.[Order 1, rule 4.]Court may givejudgment for oragainst one or moreof joint parties.[Order 1, rule 5.]Defendant need notbe interested in allrelief claimed.[Order 1, rule 6.]Joinder of partiesliable on samecontract.[Order 1, rule 7.]When plaintiff indoubt from whomredress to be sought.[Order 1, rule 8.] Oneperson may sue ordefend on behalf ofall in same interest.1. All persons may be joined in one suit as plaintiffs in whom any rightto relief in respect of or arising out of the same act or transaction or seriesof acts or transactions is alleged to exist, whether jointly, severally or in thealternative, where, if such persons brought separate suits, any common questionof law or fact would arise.2. Where it appears to the court that any joinder of plaintiffs mayembarrass or delay the trial of the suit, the court may either on the applicationof any party or of its own motion put the plaintiffs to their election or orderseparate trials or make such other order as may be expedient.3. All persons may be joined as defendants against whom any right torelief in respect of or arising out of the same act or transaction or series of actsor transactions is alleged to exist, whether jointly, severally or in the alternative,where, if separate suits were brought against such persons any common questionof law or fact would arise.4. Judgment may be given without amendment—(a) for such one or more of the plaintiffs as may be found to be entitledto relief for such relief as he or they may be entitled to;(b) against such one or more of the defendants as may be found to beliable according to their respective liabilities.5. It shall not be necessary that every defendant shall be interested as toall the relief claimed in any suit against him.6. The plaintiff may at his option join as parties to the same suit all orany of the persons severally, or jointly and severally liable, on any one contract,including parties to bills of exchange and promissory notes.7. Where the plaintiff is in doubt as to the persons from whom he isentitled to obtain redress, he may join two or more defendants in order that thequestion as to which of the defendants is liable, and to what extent, may bedetermined as between all parties.8. (1) Where numerous persons have the same interest in any proceedings,the proceedings may be commenced, and unless the Court otherwise orders,continued, by or against any one or more of them as representing all or asrepresenting all except one or more of them.(2) The parties shall in such case give notice of the suit to all such personseither by personal service or, where from the number of persons or any other

Rev. 2010] Civil Procedure CAP. 21 65cause such service is not reasonably practicable, by public advertisement, asthe court in each case may direct.[Subsidiary]defended under subrule (1) may apply to the court to be made a party to such suit.9. No suit shall be defeated by reason of the misjoinder or non- joinderof parties, and the court may in every suit deal with the matter in controversyso far as regards the rights and interests of the parties actually before it.[Order 1, rule 9.]Misjoinder andnon- joinder.10. (1) Where a suit has been instituted in the name of the wrong personsas plaintiff, or where it is doubtful whether it has been instituted in the namethe determination of the real matter in dispute to do so, order any other person(2) The court may at any stage of the proceedings, either upon or withoutthe application of either party, and on such terms as may appear to the court tobe just, order that the name of any party improperly joined, whether as plaintiffor defendant, be struck out, and that the name of any person who ought to havebeen joined, whether as plaintiff or defendant, or whose presence before thecourt may be necessary in order to enable the court effectually and completelyto adjudicate upon and settle all questions involved in the suit, be added.(3) No person shall be added as a plaintiff suing without a next friendor as the next friend of a plaintiff under any disability without his consent inwriting thereto.(4) Where a defendant is added or substituted, the plaint shall, unless thecourt otherwise directs, be amended in such manner as may be necessary, andamended copies of the summons and of the plaint shall be served on the new[Order 1, rule 10.]Substitution andaddition of parties.11. In respect of civil proceedings by or against the Government, thisOrder shall have effect subject to section 12 of the Government ProceedingsAct (which relates to parties to such proceedings).12. The court may give the conduct of the suit to such person as it deemsproper.13. (1) Where there are more plaintiffs than one, any one or more ofthem may be authorized by any other of them to appear, plead or act for suchother in any proceeding, and in like manner, where there are more defendantsthan one, any one or more of them may be authorized by any other of them toappear, plead or act for such other in any proceeding.[Order 1, rule 11]Governmentproceedings.[Order 1, rule12.]Conduct of suit.[Order 1, rule 13.]Appearance of one ofseveral plaintiffsor defendants forothers.(2) The authority shall be in writing signed by the party giving it and14. Any application to add or strike out or substitute a plaintiff or[Order 1, rule 14.]

66[Subsidiary]Practice.[Order 1, rule 15.]Notice to third andsubsequent parties.CAP. 21 Civil Procedure [Rev. 2010defendant may be made to the court at any time before trial by chamber summonsor at the trial of the suit in a summary manner.15. (1) Where a defendant claims as against any other person not alreadya party to the suit (hereinafter called the third party)—(a) that he is entitled to contribution or indemnity; or(b) that he is entitled to any relief or remedy relating to or connectedwith the original subject-matter of the suit and substantially thesame as some relief or remedy claimed by the plaintiff; or(c) that any question or issue relating to or connected with the saidsubject-matter is substantially the same question or issue arisingbetween the plaintiff and the defendant and should properly bedetermined not only as between the plaintiff and the defendantbut as between the plaintiff and defendant and the third party orbetween any or either of them,he shall apply to the Court within fourteen days after the close of pleadingsfor leave of the Court to issue a notice (hereinafter called a third party notice)to that effect, and such leave shall be applied for by summons in chambers exparteparty according to the rules relating to the service of a summons.(3) The notice shall state the nature and grounds of the claim, and shall,and shall be in or to the effect of Form No. 1 of Appendix A with such variationsas circumstances require and a copy of the plaint shall be served therewith.(4) Where a third party makes as against any person not already a partyto the action such a claim as is mentioned in subrule (1), the provisions of thisOrder regulating the rights and procedure as between the defendant and thethird party shall apply mutatis mutandis as between the third party and suchperson, and the court may give leave to such third party to issue a third partynotice, and the preceding rules of this Order shall apply mutatis mutandis, andto and include every notice so issued and every person served with such notice.(5) Where a person served with a notice by a third party under subrule(4) makes such a claim as is mentioned in subrule (1) against another personnot already a party to the action, such other person and any subsequent personmade a party to the action shall comply mutatis mutandis with the provisionsof this rule.[Order 1, rule 16.]Notice toGovernment as thirdparty.16. Notwithstanding anything in rule 15, leave to issue a third partynotice for service on the Government shall not be granted unless the Courtit reasonably requires as to the circumstances in which it is alleged that the

Rev. 2010] Civil Procedure CAP. 21 67of the Government concerned.17. If a person not a party to the suit who is served as mentioned in rulein 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 appearancedoing he shall be deemed to admit the validity of the decree obtained againstsuch defendant, whether obtained by consent or otherwise, and his own liabilityto contribute or indemnify, as the case may be, to the extent claimed in thethird-party notice:Provided that a person so served and failing to enter an appearancean appearance, and for good cause such leave may be given upon such terms,18. In the case of third-party proceedings against the Government, rule17 shall not apply unless the court so orders; and any application for such anorder shall be made by chamber summons served not less than seven daysbefore the return day.[Subsidiary][Order 1, rule 17.]Default ofappearance by thirdparty.[Order 1, rule 18.]Default ofappearance byGovernment as thirdparty.19. Where a third party makes default in entering an appearance inthe suit, or in delivering any pleading, and the defendant giving the noticesuffers judgment by default, such defendant shall be entitled, after causingthe satisfaction of the decree against himself to be entered upon the record, tojudgment 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 againstProvided that it shall be lawful for the court to set aside or vary anyjudgment passed under this rule upon such terms as may seem just.20. (1) A defendant shall not in any event be entitled to enter judgmentagainst the Government under rule 19 without the leave of the court.(2) Any application for leave to enter judgment against the Governmentunder this rule shall be made by chamber summons served not less than sevendays before the return day.21. (1) Where a third party makes default in entering an appearance inthe suit, and the suit is tried and results in favour of the plaintiff, the court mayeither at or after the trial enter such judgment as the nature of the suit mayrequire for the defendant giving notice against the third party:[Order 1, rule 19.]Judgment againstthird party in default.[Order 1, rule 20.]No judgment againstGovernment withoutleave of the Court.[Order 1, rule 21]Judgment after trialagainst third party indefault.Provided that execution thereof shall not be issued without leave ofthe court, until after satisfaction by such defendant of the decree against him.

68[Subsidiary][Order 1, rule 22.]Appearance of thirdparty and directions.[Order 1, rule 23.]Costs.[Order 1, rule 24.]Defendant claimingagainst a codefendant.CAP. 21 Civil Procedure [Rev. 2010trial, the court may, upon application ex partejudgment as the nature of the case may require to be entered for the defendantgiving the notice against the third party at any time after satisfaction by thedefendant of the decree obtained by the plaintiff against him.22. If a third party enters an appearance pursuant to the third- partynotice, the defendant giving the notice may apply to the court by summonsin chambers for directions, and the court upon the hearing of such applicationthe third party, order the question of such liability as between the third partyand the defendant giving the notice, to be tried in such manner, at or after thejudgment as the nature of the case may require to be entered in favour of thedefendant giving the notice against the third party.23. The court may decide all questions of costs between a third partyand the other parties to the suit, and may make such orders as to costs as thejustice of the case may require.24. (1) Where a defendant desires to claim against another person whois already a party to the suit—(a) that he is entitled to contribution or indemnity; or(b) that he is entitled to any relief or remedy relating to or connectedwith the original subject-matter of the action which is substantiallythe same as some relief or remedy claimed by the plaintiff; or(c) that any question or issue relating to or connected with the saidsubject-matter is substantially the same as some question or issuearising between the plaintiff and the defendant and should properlybe determined not only as between the plaintiff and the defendantbut as between the plaintiff and the defendant and such other personor between any or either of them,the defendant may without leave issue and serve on such other person a noticemaking such claim or specifying such question or issue.(2) No appearance to such notice shall be necessary but there shallbe adopted for the determination of such claim, question or issue the sameprocedure as if such other person were a third party under this Order.[Order 1, rule 25.]Procedure.(3) Nothing contained in this rule shall operate or be construed so as toprejudice the rights of the plaintiff against any defendant to the action.25. Applications under rules 10 and 19 may be made orally in Court orby summons in chamber.

Rev. 2010] Civil Procedure CAP. 21 69ORDER 2[Subsidiary]PLEADINGS GENERALLY1. (1) Every pleading in civil proceedings including proceedings againstthe Government shall contain information as to the circumstances in which itis alleged that the liability has arisen and, in the case of the Government, the[Order 2, rule 1.]Pleadings generally.(2) In such proceedings if the defendant considers that the pleading doesbefore the time limited by the summons for appearance has expired, by notice(3) Where such a notice has been given, the time for appearance shallplaintiff by chamber summons served on the defendant not less than seven daysbefore the return day, decided that no further information is reasonably required.2. (1) Every pleading shall be divided into paragraphs numberedconsecutively, each allegation being so far as appropriate contained in a separateparagraph.[Order 2, rule 2.]Formal requirements.not words.3. (1) Subject to the provisions of this rule and rules 6, 7 and 8, everypleading shall contain, and contain only, a statement in a summary form of thematerial facts on which the party pleading relies for his claim or defence, butnot the evidence by which those facts are to be proved, and the statement shallbe as brief as the nature of the case admits.[Order 2, rule 3.]Facts not evidence, tobe pleaded.(2) Without prejudice to subrule (1), the effect of any document or thepurport of any conversation referred to in the pleading shall, if material, bebe stated, except in so far as those words are themselves material.(3) A party need not plead any fact if it is presumed by law to be true orthe burden of disproving it lies on the other party, unless the other party has(4) A statement that a thing has been done or that an event has occurred,being a thing or an event the doing or occurrence of which constitutes a conditionprecedent necessary for the case of a party shall be implied in his pleading.4. (1) A party shall in any pleading subsequent to a plaint plead inevitable accident, act of God, any relevant Statute of limitation or any factshowing illegality—[Order 2, rule 4.]Matters whichpleaded.

70[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(a) which he alleges makes any claim or defence of the opposite partynot maintainable;(bby surprise; or(c) which raises issues of fact not arising out of the preceding pleading.(2) Without prejudice to subrule (1), a defendant to an action for therelies, and a plea that he is in possession of the land by himself or his tenant[Order 2, rule 5.]Matter may bepleaded wheneverarising.[Order 2, rule 6.]Departure.5. Subject to rules 3 (1) and 6, a party may in any pleading plead anyplaint.6. (1) No party may in any pleading make an allegation of fact, or raiseany new ground of claim, inconsistent with a previous pleading of his in thesame suit.(2) Subrule (1) shall not prejudice the right of a party to amend, orapply for leave to amend, his previous pleading so as to plead the allegationsor claims in the alternative.[Order 2, rule 7.]Particulars indefamation actions.7. (1) Where in an action for libel or slander the plaintiff alleges that thewords or matters complained of were used in a defamatory sense other thantheir ordinary meaning, he shall give particulars of the facts and matters onwhich he relies in support of such sense.(2) Where in an action for libel or slander the defendant alleges that, inso far as the words complained of consist of statements of fact, they are true insubstance and in fact, and in so far as they consist of expressions of opinion,they are fair comment on a matter of public interest, or pleads to the like effect,he shall give particulars stating which of the words complained of he allegesare statements of fact and of the facts and matters he relies on in support of theallegation that the words are true.(3) Where in an action for libel or slander the plaintiff alleges that thedefendant maliciously published the words or matters complained of, he neednot in his plaint give particulars of the facts on which he relies in support ofthe allegation of malice; but if the defendant pleads that any of those words ormatters are fair comment on a matter of public interest or were published upona privileged occasion and the plaintiff intends to allege that the defendant wasand matters from which the malice is to be inferred.

Rev. 2010] Civil Procedure CAP. 21 71(4) This rule shall apply in relation to a counterclaim for libel or slanderas if the party making the counterclaim were the plaintiff and the party againstwhom it is made the defendant.8. In an action for libel or slander in which the defendant does not byhis defence assert the truth of the statement complained of, the defendant shallnot be entitled at the trial to give evidence in chief, with a view to mitigation ofdamages, 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 atleast twenty-one days before the trial he has given the plaintiff particulars ofthe matters on which he intends to give evidence.9. A party may by his pleading raise any point of law.10. (1) Subject to subrule (2), every pleading shall contain the necessaryparticulars of any claim, defence or other matter pleaded including, withoutprejudice to the generality of the foregoing—[Subsidiary][Order 2, rule 8.]Particulars ofevidence inmitigation.[Order 2, rule 9.]Points of law.[Order 2, rule 10.]Particulars ofpleading.(a) particulars of any misrepresentation, fraud, breach of trust, wilful(b) where a party pleading alleges any condition of the mind of anyperson, whether any disorder or disability of mind or any malice,fraudulent intention or other condition of mind except knowledge,particulars of the facts on which the party relies.(2) The court may order a party to serve on any other party particularsof any claim, defence or other matter stated in his pleading, or a statement ofthe nature of the case on which he relies, and the order may be made on suchterms as the court thinks just.(3) Where a party alleges as a fact that a person had knowledge or noticeof some fact, matter or thing, then, without prejudice to the generality of subrule(2), the court may, on such terms as it thinks just, order that party to serve onany other party—(a) where he alleges knowledge, particulars of the facts on which herelies; and(b) where he alleges notice, particulars of the notice.defence unless the order is necessary or desirable to enable the defendant toplead or for some other special reason.(5) No order for costs shall be made in favour of a party applying for anshall be served in duplicate.(6) Particulars delivered shall be in Form No. 3 of Appendix A which

72[Subsidiary][Order 2, rule 11.]Admissions anddenials.CAP. 21 Civil Procedure [Rev. 2010shall form part of the pleadings.11.(1) Subject to subrule (4), any allegation of fact made by a party inhis pleading shall be deemed to be admitted by the opposing party unless itis traversed by that party in his pleading or a joinder of issue under rule 10operates as a denial of it.(2) A traverse may be made either by denial or by a statement of nonadmissionand either expressly or by necessary implication.(3) Subject to subrule (4), every allegation of fact made in a plaint orcounterclaim which the party on whom it is served does not intend to admit shalla general denial of such allegations, or a general statement of non-admission(4) Any allegation that a party has suffered damage and any allegationas to the amount of damages shall be deemed to have been traversed unless[Order 2, rule 12.]Denial by joinder ofissue.12. (1) If there is no reply to a defence, there is a joinder of issue onthat defence.(2) Subject to subrule (3)—(a) there is at the close of pleadings a joinder of issue on the pleading(b) a party may in his pleading expressly join issue on the immediatelypreceding pleading.(3) There can be no joinder of issue on a plaint or counterclaim.(4) A joinder of issue operates as a denial of every material allegationof fact made in the pleading on which there is a joinder of issue unless, in thecase of an express joinder of issue, any such allegation is excepted from thejoinder and is stated to be admitted, in which case the express joinder of issueoperates as a denial of every other such allegation.[Order 2, rule 13.]Close of pleadings.[Order 2, rule 14.]Technical objection.[Order 2, rule 15.]Striking outpleadings.13. The pleadings in a suit shall be closed fourteen days after service ofthe reply or defence to counterclaim, or, if neither is served, fourteen days afterservice of the defence, notwithstanding that any order or request for particularshas been made but not complied with.14. No technical objection may be raised to any pleading on the groundof any want of form.15. (1) At any stage of the proceedings the court may order to be struckout or amended any pleading on the ground that—

Rev. 2010] Civil Procedure CAP. 21 73(a) it discloses no reasonable cause of action or defence in law; or[Subsidiary](b) it is scandalous, frivolous or vexatious; or(c) it may prejudice, embarrass or delay the fair trial of the action; or(d) it is otherwise an abuse of the process of the court,and may order the suit to be stayed or dismissed or judgment to be enteredaccordingly, as the case may be.(2) No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made.(3) So far as applicable this rule shall apply to an originating summonsand a petition.16. Every pleading shall be signed by an advocate, or recognised agent17. An application under section 25 (2) of the Government ProceedingsAct may be made at any time before trial or during the trial.[Order 2, rule 16.]Pleading to besigned.[Order 2, rule 17]Proceedings in rem.Cap. 40ORDER 3FRAME AND INSTITUTION OF SUIT1. (1) Every suit shall be instituted by presenting a plaint to the Court,or in such other manner as may be prescribed.(2) The claim shall indicate at the heading the choice of track; namely[Order 3, rule 1]Commencement ofsuit and case trackallocation.(3) For purposes of this rule:(a(brelatively few parties; and would likely be concluded within onehundred and eighty days after the pre-trial directions under Order 11.(cor several parties and which would likely be concluded within twohundred and forty days from the date of the pre- trial directionsunder Order 11.(4) In choosing a case track, the plaintiff shall have regard to all relevantconsiderations including the following-

74CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](a) the complexity of the issues of fact, law or evidence;(b(c) the likely expense to the parties;(d) the importance of issues of law or fact to the public;(e) the nature of the remedy sought;(f) the number of parties or prospective parties; and(g) the time required for pre-trial disclosures and for preparation fortrial or hearing;[Order 3, rule 2.]Documents toaccompany suit.except small claims, shall be accompanied by—(a(b) a list of witnesses to be called at the trial;(c) written statements signed by the witnesses excluding expertwitnesses; and(d) copies of documents to be relied on at the trial including a demandletter before action:Provided that statement under sub rule (c) may with leave of court be[Order 3, rule 3.]Register of civil3. (1) A register of suits, to be called the register of civil suits, shall bebe entered in the register and all such suits shall be numbered in each yearaccording to the order in which they are instituted in that registry.date-stamped with the date on which it was so presented which shall be the date[Order 3, rule 4.]Suit to include thewhole claim.4. (1) Every suit shall include the whole of the claim which the plaintiff isentitled to make in respect of the cause of action; but a plaintiff may relinquishany portion of his claim.(2) Where a plaintiff omits to sue in respect of or relinquishes any portionof his claim, he shall not afterwards sue in respect of the portion omitted orrelinquished.(3) A person entitled to more than one relief in respect of the same cause

Rev. 2010] Civil Procedure CAP. 21 75of action may sue for all or any of such reliefs; but if he omits, except withthe leave of the court, to sue for all such reliefs he shall not afterwards sue forany relief so omitted.5. (1) Save as otherwise provided, a plaintiff may unite in the same suitseveral causes of action against the same defendant or the same defendantsjointly; and any plaintiffs having causes of action in which they are jointlyinterested against the same defendant or the same defendants jointly may unitesuch causes of action in the same suit.[Subsidiary][Order 3, rule 5.]Joinder of causes ofaction.(2) Where causes of action are united, the jurisdiction of the court asregards the suit shall depend on the amount or value of the aggregate of thesubject-matters at the date of instituting the suit.6. No cause of action shall, except with the leave of the court, be joinedwith a suit for the recovery of immovable property, except—(aclaimed or any part thereof;[Order 3, rule 6.]Only certain claimsto be joined with asuit for recovery ofimmovable property.(b) claims for damages for breach of any contract under which theproperty or any part thereof is held;(c) claims for damages for any wrong or injury to the premisesclaimed; and(d) claims in which the relief sought is based on the same cause ofaction:Provided that nothing in this rule shall prevent any party in a suit forforeclosure or redemption from asking to be put into possession of the mortgagedproperty, and such suit for foreclosure or redemption and for such delivery ofpossession shall not be deemed a suit for the recovery of immovable propertywithin the meaning of this rules.7. No claim by or against an executor or administrator, as such, shall bejoined with claims by or against him personally, unless the last-mentioned claimsare alleged to arise with reference to the estate in respect of which the plaintiffor defendant sues or is sued as executor or administrator, or are such as he wasentitled to, or liable for, jointly with the deceased person whom he represents.8. Where it appears to the court that any causes of action joined in onesuit cannot be conveniently tried or disposed of together, the court may eitheron the application of any party or of its own motion order separate trials or maymake such order as may be expedient.9. No suit shall be open to objection on the ground that a merelydeclaratory judgment or order is sought thereby, and the court may make abinding declaration of right whether any consequential relief is or could beclaimed or not.[Order 3, rule 7.]Claims by oragainst executor,administrator or heir.[Order 3, rule 8.]Power of court toorder separate trials.[Order 3, rule 9.]Declaratoryjudgment.

76CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]ORDER 4PLAINT[Order 4, rule 1.]Particulars of plaint.1. (1) The plaint shall contain the following particulars—(a) the name of the court in which the suit is brought;(b) the name, description and place of residence of the plaintiff, andan address for service;(c) the name, description and place of residence of the defendant, sofar as they can be ascertained;(d) the place where the cause of action arose;(e) where the plaintiff or defendant is a minor or person of unsoundmind, a statement to that effect; and(f) an averment that there is no other suit pending, and that there havebeen no previous proceedings, in any court between the plaintiffand the defendant over the same subject matter and that the causeof action relates to the plaintiff named in the plaint.verifying the correctness of the averments contained in rule 1(1)(f) above.(3) Where there are several plaintiffs, one of them, with written authorityof the others. company to do so.(5) The provisions of sub-rule (3) and (4) shall apply mutatis mutandisto counterclaims.(6) The court may of its own motion or on the application by the plaintiffor the defendant order to be struck out any plaint or counterclaim which doesnot comply with sub-rule (2) (3), (4) and (5) of this rule.[Order 4, rule 2.]Money suit.2. (1) Where the plaintiff seeks the recovery of money, the plaint shallstate the precise amount claimed, except where the plaintiff sues for mesneaccounts between him and the defendant.(2) The provisions of this rule shall apply to counterclaims.[Order 4, rule 3.]3. Where the subject-matter of the suit is immovable property, the plaint

Rev. 2010] Civil Procedure CAP. 21 774. Where the plaintiff sues in a representative capacity the plaint shall statethe capacity in which he sues and where the defendant is sued in a representativecapacity the plaint shall state the capacity in which he is sued, and in both casesit shall be stated how that capacity arises.5. The plaint shall show that the defendant is or claims to be interestedin the subject-matter, and that he is liable to be called upon to answer theplaintiff’s demand.[Subsidiary]Where the subjectmatterof the suit isimmovable property.[Order 4, rule 4.]Capacity of parties.[Order 4, rule 5.]Defendant’s interestand liability to beshown.costs, interest or general or other relief which may always be given as the courtdeems just, whether or not it could have been asked for or granted when the suit[Order 4, rule 6.]Statement of reliefclaimed.7. Where the plaintiff seeks relief in respect of several distinct claimsor causes of action founded upon separate and distinct grounds, they shall bestated as far as may be, separately and distinctly.8. The plaintiff shall present as many copies of the plaint as there aredefendants.9. (1) The plaint may at any stage of the suit be returned to be presentedto the court in which the suit should have been instituted.[Order 4, rule 7.]Relief founded onseparate grounds.[Order 4, rule 8.]Copies of plaint.[Order 4, rule 9.]Return of plaint.(2) On returning a plaint the judge shall endorse thereon the date of itspresentation and return, the name of the party presenting it and a brief statementof the reasons for returning it.ORDER 5ISSUE AND SERVICE OF SUMMONS[Order 5, rule 1.]Issue of summons.by the judge and shall be sealed with the seal of the court without delay, and in(3) Every summons shall be accompanied by a copy of the plaint.

78[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010Provided that the time for appearance shall not be less than ten days.(5) Every summons shall be prepared by the plaintiff or his advocate and(6) Every summons, except where the court is to effect service, shall belater, failing which the suit shall abate.[Order 5, rule 2.]Duration and renewalof summons.2. (1) A summons (other than a concurrent summons) shall be valid in validity of the original summons which is unexpired at the date of issue of theconcurrent summons.(2) Where a summons has not been served on a defendant the court may(3) Where the validity of a summons has been extended under sub-rulethe period for which its validity has been extended.(4) Where the validity of a summons is extended, the order shall operatein relation to any other summons (whether original or concurrent) issued in thesame suit which has not been served so as to extend its validity until the periodorder may be made without the advocate or plaintiff in person being heard.(6) As many attempts to serve the summons as are necessary may bemade during the period of validity of the summons.(7) Where no application has been made under subrule (2) the court maywithout notice dismiss the suit at the expiry of twenty-four months from theissue of the original summons.[Order 5, rule 3.]Service on acorporation.3. Subject to any other written law, where the suit is against a corporationthe summons may be served—(aor(bcorporation mentioned in rule 3 (a)— (ii) by sending it by prepaid registered post or by a licensed courierservice provider approved by the court to the registered postal

Rev. 2010] Civil Procedure CAP. 21 79address of the corporation; or[Subsidiary]the corporation, by leaving it at the place where the corporationcarries on business; or(iv) by sending it by registered post to the last known postal addressof the corporation.4. (1) One or more concurrent summonses may, at the request of theplaintiff, be issued at the time when the original summons is issued or at anytime thereafter before the original summons ceases to be valid.[Order 5, rule 4.]Concurrentsummons.(2) A concurrent summons shall be valid only from the date of its ownissue and shall remain valid so long as the original summons remains in force.5. (1) Where the court has issued summons to a defendant, the summonsmay be delivered for service—(a) to any person for the time being duly authorized by the court;[Order 5, rule 5.]Delivery ortransmission ofsummons for service.(b) to an advocate, or advocate’s clerk approved by the court;(c) to any subordinate court having jurisdiction in the place where thedefendant resides;(dappointed under the Administration Police Act; orCap 84.Cap 85.(e) to a licensed courier service provider approved by the court.(2) A court to which a summons is sent under subrule (1) (c) shall uponreceipt thereof proceed as if it had been issued by such court, and shall thenreturn the summons to the court of issue, together with the record of any of itsproceedings with regard thereto.(3) No objection maybe made to the service of a summons on the groundsthat the person who served the summons either was not authorized so to do orthat he exceeded or failed to comply with his authority in any way.6. Service of the summons shall be made by delivering or tenderingbehalf, and sealed with the seal of the court.(Order 5, rule 6.]Mode of service.7. Save as otherwise prescribed, where there are more defendants thanone, service of the summons shall be made on each defendant.8. (1) Wherever it is practicable, service shall be made on the defendantin person, unless he has an agent empowered to accept service, in which case[Order 5, rule 7.]Service on severaldefendants.[Order 5, rule 8.]Service to be ondefendant in person

80[Subsidiary]or on his agent.[Order 5, rule 9,)Mode of service onthe Government.Cap. 40.CAP. 21 Civil Procedure [Rev. 2010(2) A summons may be served upon an advocate who has instructionsto accept service and to enter an appearance to the summons and judgment indefault of appearance may be entered after such service.9. (1) The provisions of this Order shall have effect subject to section 13of the Government Proceedings Act, which provides for the service of documentson the Government for the purpose of or in connection with civil proceedingsby or against the Government.(2) Service of a document in accordance with the said section 13 shallbe effected—(aof the Attorney-General, or of any agent whom he has nominatedfor the purpose, but in either case with a person belonging to the(b) by posting it in a prepaid registered envelope addressed to theAttorney-General or any such agent as aforesaid,and where service under this rule is made by post the time at which the documentso posted would be delivered in the ordinary course of post shall be consideredas the time of service thereof.(3) All documents to be served on the Government for the purpose ofor in connection with any civil proceedings shall be treated for the purposes ofthese Rules as documents in respect of which personal service is not requisite. orders, summonses, warrants and other documents, proceedings and writtencommunications.[Order 5, rule 10.]Service on agent bywhom defendantcarries on business.10. (1) In a suit relating to any business or work against a person whodoes not reside within the local limits of the jurisdiction of the court from whichthe summons is issued, service on any manager or agent, who at the time ofservice personally carries on such business or work for such person within suchlimits, shall be deemed good service.(2) For the purpose of this rule, the master of a ship shall be deemed tobe an agent of the owner or charterer.[Order 5, rule 11.]Service on agent incharge in suits forimmovable property.[Order 5, rule 12.]Service on agent oradult.11. Where, in a suit to obtain relief respecting, or compensation for wrongto, immovable property, service cannot be made on the defendant in person, itmay be made on an agent of the defendant empowered to accept service or onthe agent of the defendant in charge of the property.12. Where in any suit, after a reasonable number of attempts have beenmade to serve the defendant, and defendant cannot be found, service may bemade on an agent of the defendant empowered to accept service or on any adultmember of the family of the defendant who is residing with him.

Rev. 2010] Civil Procedure CAP. 21 81[Subsidiary]13. Where a duplicate of the summons is duly delivered or tendered to thedefendant personally or to an agent or other person on his behalf, the defendantor such agent or other person shall be required to endorse an acknowledgmentof service on the original summons:[Order 5, rule 13.]Person served tosignacknowledgment.or other person has refused so to endorse, the court may declare the summonsto have been duly served.other conspicuous part of the house in which the defendant ordinarily resides orcarries on business or personally works for gain, and shall then return the original served under any of the foregoing rules of this Order shall swear and annex ortime when and the manner in which summons was served and the name andaddress of the person (if any) identifying the person served and witnessing theof Appendix A with such variations as circumstances may require.or one month’s imprisonment or both.16. On any allegation that a summons has not been properly served, theby another court, touching his proceedings, and may make such further inquirybe served in accordance with any of the preceding rules of this Order, the courtin some conspicuous place in the court-house, and also upon some conspicuouspart of the house, if any, in which the defendant is known to have last residedor carried on business or personally worked for gain, or in such other manner(2) Substituted service under an order of the court shall be as effectualas if it had been made on the defendant personally.time for the appearance of the defendant as the case may require.(4) Unless otherwise directed, where substituted service of a summonsis ordered under this rule to be by advertisement, the advertisement shall be in[Order 5, rule 14.]Procedure whendefendant refusesto accept service orcannot be found.[Order 5, rule 15.][Order 5, rule 16.]Examination of[Order 5, rule 17.]Substituted service.

82[Subsidiary][Order 5, rule 18.]Service on defendantin prison.[Order 5, rule 19.]Service on publicCAP. 21 Civil Procedure [Rev. 2010Form No. 5 of Appendix A with such variations as the circumstances require.authority, the court may, if it appears to it that the summons may be mostconveniently so served, send it for service on the defendant to the head ofdefendant.to be retained by the defendant.[Order 5, rule 20.]Duty on person towhom the summonsissent.20. (1) Where a summons is delivered or sent to any person for serviceunder rule 18 or rule 19, such person shall be bound to serve it, if possible, andto return it under his signature with a written acknowledgment of the defendant,and such signature shall be deemed to be evidence of service.(2) Where from any cause service is impossible, the summons shallbe returned to the court with a full statement of such cause and of the stepstaken to procure service, and such statement shall be deemed to be evidenceof non-service.[Order 5, rule 21.]allowed by the court whenever—(a) the whole subject-matter of the suit is immovable property situate(b) any act, deed, will, contract, obligation or liability affecting(c) any relief is sought against any person domiciled or ordinarily(d) the suit is for the administration of the personal estate of a deceasedwritten instrument, of which the person to be served is a trustee,(e) the suit is one brought to enforce, rectify, rescind, dissolve, annul,or other-wise affect a contract or to recover damages or other relieffor or in respect of the breach of a contract—

Rev. 2010] Civil Procedure CAP. 21 83[Subsidiary](iii) by its terms or by its legislation to be governed by the Lawshas jurisdiction to hear and determine that suit in respect ofthat contract,made, even though such a breach was preceded or accompanied by a breach out(f(gdamages are or are not also sought in respect thereof; or(hmay be allowed by the court by—(a) an originating summons, originating notice of motion, petition, orother originating proceedings under any written law under whichproceedings can be commenced otherwise than by plaint;[Order 5, rule 22.]Service of otherprocess out of thejurisdiction.(b) any summons, order or notice in any interpleader proceedings orfor the appointment of an arbitrator or umpire, or to remit, set asideor enforce an award in an arbitration held or to be held within thejurisdiction;(c) any summons, order or notice in any proceedings duly institutedwhether by plaint or other originating process mentioned inparagraph (a); or(d) where the person on whom the originating summons, originatingnotice of motion, petition or other originating proceedings,or a summons, order or notice, is to be served is neither aCommonwealth citizen nor residing within the Commonwealth,a copy of the originating summons, petition, notice of motion orother originating proceedings, or summons, order or notice shallbe served instead of the original together with an intimation inwriting that process in the form of the copy has been issued orotherwise launched.(2) Rules 25, 26, 27, 28, 29 and 30 shall apply mutatis mutandis to serviceof any process under subrule (1).

84CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](3) Nothing in this rule shall affect any practice or power of the courtunder which, when lands, funds, choses in action, rights or property withinthe jurisdiction are sought to be dealt with or affected, the court may (withoutaffecting to exercise jurisdiction over any person out of the jurisdiction) causesuch person to be informed of the nature or existence of the proceedings with aview to such person having an opportunity of claiming, opposing, or otherwiseintervening.[Order 5, rule 23.]Service undercontract.23. Without prejudice to the other rules in this Order, where—(a) leave to serve a summons or notice of a summons or other processhas been allowed under rule 21 or 22; and(b) the contract provides that in the event of any suit in respect ofthe contract being begun, the process by which it is begun may beserved on a defendant, or on such other person on his behalf as isin that suit may be served as provided in the contract.[Order 5, rule 24.]Probate and marriagesuits.[Order 5, rule 25.]Application tobe supported byevidence.[Order 5, rule 26.]entering appearance.[Order 5, rule 27.]Service wheredefendant resides out[Order 5, rule 28.]Notice in lieu ofsummons.24. In probate, Mohammedan or Hindu marriage, divorce and successionsuits, service of a summons or notice of a summons may by leave of the court25. Every application for leave to serve such summons or notice on athat in the belief of the deponent the plaintiff has a good cause of action, andshowing in what place or country such defendant is or probably may be found,and whether such defendant is a Commonwealth citizen or a British protectedperson or not, and the grounds on which the application is made; and no such26. Any order giving leave to effect such service or give such noticeshall limit a time after such service or notice within which such defendant isto enter an appearance; such time to depend on the place or country where orwithin which the summons is to be served or the notice given.has been granted under rule 21, and the defendant is a Commonwealth citizenin any of the countries for the time being mentioned in subsection (3) of thatsection, the summons shall be served in such manner as the Court may direct.28. (1) Where the defendant is neither a Commonwealth citizen asaforesaid nor resides in any of the countries referred to in rule 27, notice of thesummons and not the summons itself shall be served upon him.(2) Notice of summons shall be in Form No. 6 of Appendix A with suchvariations as the circumstances require.

Rev. 2010] Civil Procedure CAP. 21 85[Subsidiary]29. Where leave is given to serve notice of summons in a foreign countryto which this rule may by order of the Chief Justice from time to time be applied,the following procedure shall be adopted—(a) the notice to be served shall be sealed with the seal of the Highto the Minister for the time being responsible for Foreign Affairstogether with a copy thereof translated into the language of thecountry in which service is to be effected, and with a request for thefurther transmission of the same through the diplomatic channel tothe Government of the country in which leave to serve notice of thesummons has been given; and such request shall be in Form No. 7of Appendix A with such variations as circumstances may require;[Order 5, rule 29.]Service of notice ofsummons in a foreigncountry.(b) the party bespeaking a copy notice of summons for service underForm No. 8 of Appendix A;(c transmitted through the diplomatic channel by the government orcourt of a foreign country to which this rule applies, to the Highsummons to have been personally served, or to have been dulyserved upon the defendant in accordance with the law of such these Rules in that behalf;(dCourt in the manner provided in paragraph (cthat efforts to serve a notice of summons have been without effect,the court may, upon the ex parte application of the plaintiff, orderthat the plaintiff be at liberty to bespeak a request for substitutedservice of such notice; and such order shall be in Form No. 9 ofAppendix A, with such variations as circumstances may require;(e) a request for substituted service of a notice of summons underthis rule may be bespoken by the plaintiff at the department where Appendix A, and the notice of summons and copy of the same,and the order, shall be sealed and transmitted to the Minister inthe manner aforesaid together with a request in Form No. 10 ofAppendix A, with such variations as circumstances may require.30. The court may direct that any summons, order or notice shall be servedon any party or person in a foreign country, and the procedure prescribed byrule 27, with reference to service of notice of a summons, shall apply to serviceof any summons, order or notice so directed to be served.[Order 5, rule 30.]Extension ofprocedure to anyorder or notice.

86[Subsidiary][Order 5, rule 31.]Application toGovernment.CAP. 21 Civil Procedure [Rev. 201031. Rules 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 shall apply in the caseof civil proceedings by the Government but shall not apply in the case of civilproceedings against the Government.[Order 5, rule 32.]Procedure.32. Where in any civil or commercial matter pending before a court ortribunal of a foreign country a letter of request from such court or tribunal fortransmitted to the High Court, with an intimation that it is desirable that effectshould be given to the same, the following procedure shall be adopted—(a) the letter or request for service shall be accompanied by a translationthereof in the English language, and by two copies of the process ofcitation to be served, and two copies thereof in the English language;(b) service shall be effected by delivering to and leaving with theperson to be served one copy of the process to be served, and onecopy of the translation thereof, in accordance with the rules and(c) after service has been effected the process server shall return tothe Registrar of the High Court one copy of the process togethercost of effecting such service;(d) the particulars of charges for the cost of effecting service shall besubmitted to the Registrar of the High Court, who shall certify thecorrectness of the charges, or such other amount as shall be properlypayable for the cost of effecting service;(e) the Registrar shall return the letter of request for service receivedfrom the foreign country, together with the evidence of service withForm No. 11 of Appendix A.[Order 5, rule 33.]General powers ofthe court.[Order 5, rule 34.]Request for servicefrom foreign country.33. Upon the application of the Attorney-General the court may makeall such orders for substituted service or otherwise as may be necessary to giveeffect to rule 32.34. Where in any civil or commercial matter pending before a court ortribunal in any foreign country with which a Convention in that behalf has beenconsular or other authority of such country, the following procedure shall,subject to any special provisions contained in the Convention, be adopted—(a) the service shall be effected by the delivery of the original or acopy of the document, as indicated in the request, and the copy of

Rev. 2010] Civil Procedure CAP. 21 87the translation, to the party or person to be served in person by theprocess server;[Subsidiary](b) no court fees shall be charged in respect of the service, and theservice shall be submitted to the Registrar of the High Court, whoshall certify the amount properly payable in respect thereof;ORDER 6APPEARANCE OF PARTIES1. Where a defendant has been served with summons to appear, he shallprescribed in the summons.2. (1) Appearance shall be effected by delivering or sending by post toAppendix A with such variation as the circumstances require, signed by theadvocate by whom the defendant appears or, if the defendant appears in person,by the defendant or his recognised agent.(2) On receipt of the memorandum of appearance as required undercopies thereof with the court stamp showing the date on which they werereceived and—(a stamped copies to the person appearing, or(b) if they were sent by post, he shall send one copy by post tothe plaintiff’s address for service and one copy by post to thedefendant’s address for service.(3) Where the defendant appears by delivering the memorandum ofappearance as required under subrule (1) he shall within seven days from thedate on which he appears serve a copy of the memorandum of appearance upon(4) Where a defence contains the information required by rule 3 it shallwhere necessary be treated as an appearance.3. (1) The advocates of the defendant shall state in the memorandum ofand postal address.(2) A defendant appearing in person shall state in the memorandum ofappearance his addresses for service being either his place of residence or hisplace of business and his postal address, and if he has neither residence nor[Order 6, rule 1]Time for appearance.[Order 6, rule 2.]Mode of appearance.[Order 6, rule 3.]Defendant’s addressfor service.

88[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(3) When a corporation appears without an advocate the memorandumof appearance shall state the addresses for service which may be either thepostal address.[Order 6, rule 4.]Irregularmemorandum,[Order 6, rule 5.]Defendants appearingby same advocate.[Order 6, rule 6.]Delivery ofdocuments to addressfor service.4. If the memorandum of appearance does not contain an address for5. If two or more defendants appear in the same suit by the same advocateand at the same time, the names of all the defendants so appearing shall beinserted in the same memorandum of appearance.6. (1) Documents may either be delivered by hand or by licensed courierservice provider approved by the court to the address for service or may beposted to it.ORDER 7DEFENCE AND COUNTERCLAIM[Order 7, rule1.]Defence.[Order 7, rule2.]Defence of tender.[Order 7, rule 3.]Set-off andcounterclaim.[Order 7, rule 4.]Set-off or1. Where a defendant has been served with a summons to appear hewithin fourteen days after he has entered an appearance in the suit and serve2. Where in any suit a defence of tender before action is pleaded thedefendant shall pay into court, in accordance with Order 27, the amount allegedto have been tendered, and the tender shall not be available as a defence unlessand until payment into court has been made.3. A defendant in a suit may set-off, or set-up by way of counterclaimagainst the claims of the plaintiff, any right or claim, whether such set-off orcounterclaim sound in damages or not, and whether it is for a liquidated orunliquidated amount, and such set-off or counterclaim shall have the samethe same suit, both on the original and on the cross-claim; but the Court mayon the application of the plaintiff before trial, if in the opinion of the court suchset-off or counterclaim cannot be conveniently disposed of in the pending suit, orought not to be allowed, refuse permission to defendant to avail himself thereof.4. Notwithstanding anything contained in rule 2, a person shall not beentitled to avail himself of any set-off or counterclaim in any proceedings

Rev. 2010] Civil Procedure CAP. 21 89by the Government for the recovery of taxes, duties or penalties, or to availhimself in proceedings by the Government of any other nature of any set-offor counterclaim arising out of a right or claim to repayment in respect of anytaxes, duties or penalties. accompanied by—(a[Subsidiary]counterclaim inproceedings byGovernment.[Order 7, rule 5.]Documents toaccompany defenceor counter-claim.(b) a list of witnesses to be called at the trial;(c) written statements signed by the witnesses except expert witnesses;and(d) copies of documents to be relied on at the trial.Provided that statements under sub-rule (c) may with leave of the court6. If either party wishes to deny the right of any other party to claimas executor or as trustee whether in bankruptcy or otherwise, or in anyrepresentative or other alleged capacity or the alleged constitution of any[Order 7, rule 6.]Persons inrepresentativecapacity.7. Where any defendant seeks to rely upon any grounds as supportingthat he does so by way of counterclaim.[Order 7, rule7.] Pleading acounterclaim.8. Where a defendant by his defence sets up any counterclaim which raisesquestions between himself and the plaintiff, together with any other person orpersons, he shall add to the title of his defence a further title similar to the titlein a plaint, setting forth the names of all persons who, if such counterclaim wereto be enforced by cross-action, would be defendants to such cross-action, andshall deliver to the court his defence for service on such of them as are partiesto the action together with his defence for service on the plaintiff within the9. Where any such person as is mentioned in rule 8 is not a party tothe suit, he shall be summoned to appear by being served with a copy of thedefence, which shall be served in accordance with the rules for regulatingservice of summons.10. Any person not already a party to the suit who is served with a defenceand counterclaim as aforesaid must appear thereto as if he had been served witha summons to appear in the suit.[Order 7, rule 8.]Title of counterclaim.[Order 7, rule 9.]Claim againstperson not party.[Order 7, rule 10.]Appearance by addedparties.11. Any person named in a defence as a party to a counterclaim therebymade may, unless some other or further order is made by the court, deliver aserve a copy thereof on all parties to the suit.[Order 7, rule 11.]Reply tocounterclaim.

90CAP. 21 Civil Procedure [Rev. 2010[Subsidiary][Order 7, rule 12.]Exclusion ofcounterclaim.[Order 7, rule 13.]Discontinuance, stayor dismissal of suit.[Order 7, rule 14.]Judgment forbalance.[Order 7, rule 15.]Defence or set-offfounded on separategrounds.[Order 7, rule 16.]New ground ofdefence.12. Where a defendant sets up a counterclaim, if the plaintiff or any otherperson named in the manner aforesaid as party to such counterclaim contendsthat 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 courtfor an order that such counterclaim may be excluded, and the court may, on thehearing of such application, make such order as shall be just.13. If, in any case in which the defendant sets up a counterclaim thesuit of the plaintiff is stayed, discontinued or dismissed, the counterclaim maynevertheless be proceeded with.14. Where in any suit a set-off or counterclaim is established as a defenceagainst the plaintiff’s claim, the court may, if the balance is in favour of thedefendant, give judgment for the defendant for such balance, or may otherwiseadjudge to the defendant such relief as he may be entitled to upon the meritsof the case.15. Where the defendant relies upon several distinct grounds of defenceor set-off founded upon separate and distinct facts, they shall be stated, as faras practicable, separately and distinctly.16. (1) Any ground of defence which has arisen after action brought, butbefore the defendant has delivered his defence and before the time limited forhis doing so has expired, may be raised by the defendant in his defence, eitheralone or together with other grounds of defence; and if, after a defence has beendelivered, any ground of defence arises to any set-off or counterclaim allegedtherein by the defendant, it may be raised by the plaintiff in his reply, eitheralone or together with any other ground of reply.(2) Where any ground of defence arises after the defendant has delivered adefence, or after the time limited for his doing so has expired, the defendant may,and where any ground of defence to any set-off or counterclaim arises after thetime limited for delivering a reply has expired, the plaintiff may, within fourteendays after such ground of defence has arisen or at any subsequent time, by leaveof the court, deliver a further reply, as the case may be, setting forth the same.(3) Whenever any defendant in his defence, or in any further defence asmentioned in subrule (2), alleges any ground of defence which has arisen afterthe commencement of the suit, the plaintiff may deliver a confession of suchdefence, and may make application by summons for his costs up to the time ofpleading of such defence.[Order 7, rule 17.]Subsequentpleadings.after the defence or the last of the defences has been served on to him, unlessthe time is extended.(2) No pleading subsequent to the reply shall be pleaded without leave of

Rev. 2010] Civil Procedure CAP. 21 91(3) Where a counterclaim is pleaded, a defence thereto shall be subjectto the rules applicable to defence.18. (1) Subject to rule 8 all pleadings (including amended pleadings)(2) The court may return the duplicate to an advocate who shall deliverit to the address for service on the opposite party within seven days.[Subsidiary][Order 7, rule 18.]Filing subsequentpleadings.(3) Where the duplicate is not returned to an advocate for delivery thecourt shall deliver it to the address for service or to the opposite party or hisadvocate or representative if he attends at the registry before its delivery.19. (1) A register of documents shall be kept at every registry in whichthe following particulars in respect of each such document shall be entered,namely—[Order 7, rule 19.]Register ofdocuments.(a) the number of the document;(b) the number of the suit to which it relates;(c) the nature of the document;(ddocument shall be date-stamped with the date on which it was so presented20. Documents under this order shall be served in the manner prescribedunder Order 5 of these Rules.[Order 7, rule 20.]Service ofdocuments.ORDER 8AMENDMENT OF PLEADINGS1. (1) A party may, without the leave of the court, amend any of hispleadings once at any time before the pleadings are closed.(2) Where an amended plaint is served on a defendant—[Order 8, rule 1.]Amendment ofpleading withoutleave.(adefence; and(bthe service of the amended plaint whichever is later.

92CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](3) Where an amended defence is served on a plaintiff—(a) if the plaintiff has already served a reply on that defendant, he mayamend his reply; and(b) the period for service of his reply or amended reply is fourteendays after the service on him of the amended defence.(4) References in subrules (2) and (3) to a defence and a reply includereferences to a counterclaim and a defence to counterclaim respectively.(5) Where an amended counterclaim is served on a party (other than theplaintiff) against whom the counterclaim is made, subrule (2) shall apply asif the counterclaim were a statement of claim and as if the party by whom thecounterclaim is made were the plaintiff and the party against whom it is madewere a defendant.(6) Where a party has pleaded to a pleading which is subsequentlyamended and served on him under subrule (1), then, if that party does not amendhis pleading under the foregoing provisions of this rule, he shall be taken to relyon it in answer to the amended pleading, and Order 2 rule 12 (2) shall have effectat the expiry of the period within which the pleading could have been amended.[Order 8, rule 2.]Application fordisallowance ofamendment.2. (1) Within fourteen days after the service on a party of a pleadingamended under rule 1 (1), that party may apply to the court to disallow theamendment.if an application to make the amendment in question had been made under rule3 at the date when the amendment was made under rule 1 (1) leave to make theamendment or part of the amendment would have been refused, it shall orderthe amendment or that part of it to be struck out.(3)Any order made on an application under this rule may include suchterms as to costs or otherwise as the court thinks just.[Order 8, rule 3.]Amendment ofpleading with leave.3. (1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6and the following provisions of this rule, the court may at any stage of theproceedings, on such terms as to costs or otherwise as may be just and in suchmanner as it may direct, allow any party to amend his pleadings.(2) Where an application to the court for leave to make an amendmentsuch as is mentioned in subrule (3), (4) or (5) is made after any relevant periodnevertheless grant such leave in the circumstances mentioned in any suchsubrule if it thinks just so to do.(3) An amendment to correct the name of a party may be allowed undersubrule (2) notwithstanding that it is alleged that the effect of the amendmentto be corrected was a genuine mistake and was not misleading or such as to

Rev. 2010] Civil Procedure CAP. 21 93cause any reasonable doubt as to the identity of the person intending to sue orintended to be sued.(4) An amendment to alter the capacity in which a party sues (whetheras plaintiff or as defendant by counterclaim) may be allowed under subrule (2)of the plaint or counterclaim, he could have sued.[Subsidiary](5) An amendment may be allowed under subrule (2) notwithstandingthat its effect will be to add or substitute a new cause of action if the new causeof action arises out of the same facts or substantially the same facts as a causeof action in respect of which relief has already been claimed in the suit by theparty applying for leave to make the amendment.4. Rule 3 shall have effect in relation to an originating summons, apetition and an originating notice of motion as it has effect in relation to a plaint.5. (1)For the purpose of determining the real question in controversybetween the parties, or of correcting any defect or error in any proceedings,the court may either of its own motion or on the application of any party orderany document to be amended in such manner as it directs and on such terms asto costs or otherwise as are just.[Order 8, rule 4.]Amendment oforiginating process.[Order 8, rule 5.]General power toamend.(2) This rule shall not have effect in relation to a judgment or order.6. Where the court has made an order giving any party leave to amend,within fourteen days, the order shall cease to have effect, without prejudice tothe power of the court to extend the period.[Order 8, rule 6.]Failure to amendafter order.7. (1) Every pleading and other documents amended under this Ordershall be endorsed with the date of the amendment and either the date of theorder allowing the amendment or, if no order has been made, the number ofthe rule in pursuance of which the amendment was made.[Order 8, rule 7.]Mode of amendment.(2) All amendments shall be shown by striking out in red ink all deletedwords, but in such a manner as to leave them legible, and by underlining inred ink all added words.(3) Colours other than red shall be used for further amendments to thesame document.8. The court may hear and determine an oral application made underthis Order.[Order 8, rule 8.]Procedure.ORDER 9RECOGNIZED AGENTS AND ADVOCATES1. Any application to or appearance or act in any court required or[Order 9, rule 1.]

94[Subsidiary]Applications,appearances oracts in person, byrecognized agent orby advocate.CAP. 21 Civil Procedure [Rev. 2010authorized by the law to be made or done by a party in such court may, exceptwhere 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 anadvocate duly appointed to act on his behalf:Provided that—(a) any such appearance shall, if the court so directs, be made by theparty in person; and(b) where the party by whom the application, appearance or act isrequired or authorized to be made or done is the Attorney- Generalappearance or act for and on behalf of the Government, thedo any such application, appearance or act.[Order 9 rule 2.]Recognized agents.2. The recognized agents of parties by whom such appearances,applications and acts may be made or done are—(a) subject to approval by the court in any particular suit personsholding powers of attorney authorizing them to make suchappearances and applications and do such acts on behalf of parties;(b) persons carrying on trade or business for and in the names ofparties not resident within the local limits of the jurisdiction ofthe court within which limits the appearance, application or actis made or done, in matters connected with such trade or businessonly, where no other agent is expressly authorized to make and dosuch appearances, applications and acts;(c authorized under the corporate seal.[Order 9, rule 3.]Service of processon recognized agent.3. (1) Processes served on the recognized agent of a party shall be aseffectual as if the same had been served on the party in person, unless the courtotherwise directs.(2) The provisions for the service of process on a party to a suit shallapply to the service of process on his recognized agent.[Order 9, rule 4.]Agent to acceptservice.[Order 9, rule 5.]4. (1) Besides the recognized agents described in rule 2, any personresiding within the jurisdiction of the court may be appointed an agent to acceptservice of process.(2) Such appointment may be special or general, and shall be made byan instrument in writing signed by the principal, and such instrument or, if the5. A party suing or defending by an advocate shall be at liberty to change

Rev. 2010] Civil Procedure CAP. 21 95his advocate in any cause or matter, without an order for that purpose, but unlesscause or matter is proceeding and served in accordance with rule 6, the formeradvocate shall, subject to rules 12 and 13 be considered the advocate of the party[Subsidiary]Change of advocate.6. The party giving the notice shall serve on every other party to thecause or matter (not being a party in default as to entry of appearance) and onthe former advocate a copy of the notice endorsed with a memorandum stating7. Where a party, after having sued or defended in person, appoints anadvocate to act in the cause or matter on his behalf, he shall give notice of theappointment, and the provisions of this Order relating to a notice of changeof advocate shall apply to a notice of appointment of an advocate with the8. (1) Where a party, after having sued or defended by an advocate,intends to act in person in the cause or matter, he shall give a notice stating hisintention to act in person and giving an address for service within the jurisdictionof the court in which the cause or matter is proceeding, and the provisions ofthis Order relating to a notice of change of advocate shall apply to a notice of[Order 9, rule 6.]Service of notice ofchange of advocate.[Order 9, rule 7.]Notice ofappointment ofadvocate.[Order 9, rule 8.]Notice of intention toact in person.(2) The address for service given under subrule (1) shall comply withOrder 6, rule 3.9. When there is a change of advocate, or when a party decides to actin person having previously engaged an advocate, after judgment has beenpassed, such change or intention to act in person shall not be effected withoutan order of the court—[Order 9, rule 9.]Change to be effectedby order of court orconsent of parties.(a) upon an application with notice to all the parties; or(b proposed incoming advocate or party intending to act in personas the case may be.10. An application under rule 9 may be combined with other prayersprovided the question of change of advocate or party intending to act in person11. The party who gives notice under rule 8 or obtains an order underrule 9 may perform the duties prescribed under this Order in person or throughhis new advocate.[Order 9, rule 10.]Procedure.[Order 9, rule 11.]Power to act inperson or throughnew advocate.12. (1) Where an advocate who has acted for a party in a cause ormatter has died or become bankrupt or cannot be found or has failed to takeotherwise unable to act as an advocate, and the party has not been given notice[Order 9, rule 12.]Removal of advocatefrom record atinstance of another

96[Subsidiary]party.CAP. 21 Civil Procedure [Rev. 2010of change of advocate or notice of intention to act in person in accordance withthis Order, any other party to the cause or matter may, on notice to be servedlast-known place of address, unless the Court otherwise directs, apply to theCourt for an order declaring that the advocate has ceased to be the advocatean order accordingly.(2) Where the order is made, the party applying for the order shall serve onevery other party to the cause or matter (not being a party in default as to entryof appearance) a copy of the said order and procure the order to be entered inby the applicant or his advocate that the order has been duly served as aforesaid;advocate or else gives such an address for service as is required of a party actingin person, and complies with this Order relating to notice of appointment of anadvocate or notice of intention to act in person, any document may be served(3) Any order made under this rule shall not affect the rights of theadvocate and the party for whom he acted as between themselves.[Order 9, rule 13.]Withdrawal ofadvocate who hasceased to act for aparty.13. (1) Where an advocate who has acted for a party in a cause or matterhas ceased so to act and the party has not given notice of change in accordancewith this Order, the advocate may on notice to be served on the party personallyor by prepaid post letter addressed to his last- known place of address, unlessthe court otherwise directs, apply to the court by summons in chambers for anorder to the effect that the advocate has ceased to be the advocate acting forthe party in the cause or matter, and the court may make an order accordingly:Provided that, unless and until the advocate has—(a) served on every party to the cause or matter (not being a party indefault as to entry of appearance) or served on such parties as thecourt may direct a copy of the said order; and(b) procured the order to be entered in the appropriate court; and(cbeen duly served as aforesaid,he shall (subject to this Order) be considered the advocate of the party to the(2) From and after the time when the order has been entered in theappropriate court, any document may be served on the party to whom theeither appoints another advocate or else gives such an address for service as isrequired of a party acting in person, and also complies with this Order relatingto notice of appointment of an advocate or notice of intention to act in person.

Rev. 2010] Civil Procedure CAP. 21 97(3) Any order made under this rule shall not affect the rights of theadvocate and the party as between themselves.[Subsidiary]ORDER 10CONSEQUENCE OF NON-APPEARANCE, DEFAULT OF DEFENCE ANDFAILURE TO SERVE1. (1) Where no appearance has been entered for a defendant who is aninfant or person of unsound mind, before proceeding further the plaintiff shallapply to the court for an order that some proper person be assigned guardianof such defendant by whom he may appear and defend the suit.[Order 10, rule 1.]Suits against infantsand persons ofunsound mind.(2) No order may be made under sub-rule (1) unless the summons hasbeen served and Order 32 rule 3 (4) has been complied with, unless the courtotherwise orders.2. Where any defendant fails to appear and the plaintiff wishes to proceedunless the summons has been served by a process-server appointed by the court.3. Where a defendant fails to serve either the memorandum of appearanceor defence within the prescribed time, the court may on its own motion oron application by the plaintiff, strike out the memorandum of appearancecircumstances.4. (1) Where the plaint makes a liquidated demand only and the defendantfail so to appear, the court shall, on request in Form No. 13 of Appendix A, enterjudgment against the defendant or defendants for any sum not exceeding thesuch rate as the court thinks reasonable, to the date of the judgment, and costs.(2) Where the plaint makes a liquidated demand together with some otherclaim, and the defendant fails, or all the defendants fail, to appear as aforesaid,the Court shall, on request in Form No. 13 of Appendix A, enter judgment forthe liquidated demand and interest thereon as provided by sub-rule (1) but theaward of costs shall await judgment upon such other claim.[Order 10, rule 2.]uponnon- appearance.[Order 10, rule 3.]Failure to serve.[Order 10, rule 4.]Judgment upon aliquidated demand.5. Where the plaint makes a liquidated demand with or without some otherclaim, and there are several defendants of whom one or more appear and anyother 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 rule4, and execution may issue upon such judgment and decree without prejudiceto the plaintiff’s right to proceed with the action against such as have appeared.6. Where the plaint is drawn with a claim for pecuniary damages only orfor detention of goods with or without a claim for pecuniary damages, and anydefendant fails to appear, the court shall, on request in Form No. 13 of Appendix[Order 10, rule 5.]Liquidated demandagainst severaldefendants.[Order 10, rule 6.]Interlocutoryjudgment.

98[Subsidiary][Order 10, rule 7.]Interlocutoryjudgment whereseveral defendants.[Order 10, rule 8.]Judgment indefault against theGovernment.[Order 10, rule 9.]General rule whereno appearanceentered.[Order 10, rule 10.]Default of defence.[Order 10, rule 11.]Setting asidejudgment.CAP. 21 Civil Procedure [Rev. 2010A, enter interlocutory judgment against such defendant, and the plaintiff shallset down the suit for assessment by the court of the damages or the value ofthe goods and damages as the case may be.7. Where the plaint is drawn as mentioned in rule 6 and there are severaldefendants of whom one or more appear and any other fails to appear, the courtshall, on request in Form No. 13 of Appendix A, enter interlocutory judgmentagainst the defendant failing to appear, and the damages or the value of the goodsand the damages, as the case may be, shall be assessed at the same time as thehearing of the suit against the other defendants, unless the court otherwise orders.8. No judgment in default of appearance or pleading may be enteredagainst the Government without the leave of the court and any application forleave shall be served not less than seven days before the return day.by this Order, where any party served does not appear the plaintiff may setdown the suit for hearing.10. The provisions of rules 4 to 9 inclusive shall apply with any necessary11. Where judgment has been entered under this Order the court mayset aside or vary such judgment and any consequential decree or order uponsuch terms as are just.ORDER 11PRE-TRIAL DIRECTIONS AND CONFERENCES[Order 11, rule 1.]Application.[Order 11, rule 2.]Pretrial questionnaire.[Order 11, rule 3.]Case Conference.1. This Order shall apply to all suits except small claims or such othersuits as the court may by order exempt from this requirement.2. After the close of the pleadings parties shall within ten days complete,3. (1) With a view to furthering expeditious disposal of cases and casemanagement the court shall within thirty days after the close of pleadingsconvene a Case Conference in which it shall—(a) consider compliance with Order 3 rule 2 and Order 7 rule 5;(b) identify contested and uncontested issues;(c) explore methods to resolve the contested issues;(devents in the proceedings;

Rev. 2010] Civil Procedure CAP. 21 99(e) narrow or resolve outstanding issues;(f) create a timetable for the proceedings;(g) change the track of a case;(h) consider consolidation of suits;(i) identify a test suit and order stay of other suits.(2) In addition to any other general power the court may at the caseconference—(a) deal with any interlocutory applications or create a suitabletimetable for their expeditious disposal;(b(c) order admission of statements without calling of the makers aswitnesses where appropriate and the production of any copy of astatement where the original is unavailable;(dor give orders for discovery or production or inspection orinterrogatories which may be appropriate to the case;(e) order for the examination of any witness by an examiner or by theissue of Commission outside court and for the admission of anysuch examination as evidence in court;(f) make any procedural order;(g) by consent of the parties, or where appropriate on its own motionmake an order for interlocutory relief;(h) make a referral order for alternative dispute resolution;(i) convene a hearing;(j) give any suitable directions to facilitate expeditious disposal of thesuit or any outstanding issues;(k) encourage the parties to co-operate with each other in the conductof the proceedings;(l) help the parties to settle the whole or part of the case; (m) considercost of taking it;[Subsidiary]

100[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(n) deal with as many aspects of the case as it can on the same occasion;(o) make any such orders as may be appropriate including—(i) striking out the action or defence;(ii) makinganawardofcosts;(iii) striking out of any document or part of it; or(iv) creating or amending a case timetable.[Order 11, rule 4.]Case conferenceorder.[Order 11, rule 5.]Settlementconference Order.4. Upon conclusion of the case conference the court shall issue a CaseConference Order in terms of Appendix C.5. (1). With a view to providing an opportunity for settlement in everysuit to which this Order applies the court shall within sixty days of the caseconference in the case of a fast track case, and ninety days in the case of multitrackcase, convene a settlement conference for the purpose of—(a) settling the case or issues in the case; and(b) providing the parties and their advocates an opportunity to appearbefore the court to settle the suit or narrow down the issues.(2) Each party shall at least seven days before the date appointed for thesettlement conference prepare and exchange a Settlement Conference Briefwhich should include the following—(a) a concise summary of the facts including the agreed facts andadmissions;(b) a concise summary of the issues and the law to be relied upon byeach party including their rights and interests;(cand(d) expert reports and the relevant portions of documents relied upon.[Order 11, rule 6.]Trial conference[Order 11, rule 7.]Trial Conference.6. Each party shall at least ten days before the trial conference, complete,7. (1) At least thirty days before the hearing date of the suit a TrialConference shall be convened by the court for the following purposes—(a) planning of trial time;(b) exploring the most expeditious way to introduce evidence and

Rev. 2010] Civil Procedure CAP. 21 101(cexceeding fourteen days;(d) ordering the admission of statements without the calling of themakers as witnesses where appropriate and the production of anycopy of a statement where the original is unavailable;(e(f) ordering for the examination of any witness by the issue ofCommission outside court and for the admission of any suchexamination as evidence in court;(g) making appropriate orders relating to experts reports includingtheir exchange and admissibility at the trial;(h) making appropriate orders concerning the receiving in evidenceof any exhibit; and(i) making a referral order for alternative dispute resolution.(2) It shall be the duty of every party and or his advocate to strictly complywith the provisions of rule 3(2) and to give such information as the judge mayrequire, including but not limited to the number of the witnesses expected to becalled and the nature of their evidence, to enable the court to consider and settlethe length of time which will probably be required for the hearing of the suit.(3). Any party or his advocate who wilfully fails or omits to comply withthe provisions of this Order shall be deemed to have violated the overridingobjective as stipulated in Section 1A and 1B of the Act and the court may ordercosts against the defaulting party unless for reasons to be recorded, the courtorders otherwise.(4)At the conclusion of the Trial Conference—(a) parties or their advocates shall sign a memorandum as prescribedin Appendix E hereto setting out the results of the conference; and(b)The court may make such order or orders as it considers necessarywith respect to the conduct of the suit.[Subsidiary]8. The memorandum and order stipulated in rule 4 (4) shall bind theparties unless the court otherwise orders.9. For the purposes of this Order, the Chief Justice may appoint casemanagement judges and such number of case managers as he shall deemnecessary.[Order 11, rule 8.]Trial ConferenceOrder.[Order 11, rule 9]Case managers.

102[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 12HEARING AND CONSEQUENCE OF NON-ATTENDANCE[Order 12, rule 1.]When neither partyattends.[Order 12, rule 2.]When only plaintiffattends.hearing outside the court, neither party attends, the court may dismiss the suit.(a) that notice of hearing was duly served, it may proceed ex parte;(b) that notice of hearing was not duly served, it shall direct a secondnotice to be served; or(cto attend, it shall postpone the hearing.[Order 12, rule 3.]When only defendantattends.for hearing outside the court, only the defendant attends and he admits no partof the claim, the suit shall be dismissed except for good cause to be recordedby the court.(2) If the defendant admits any part of the claim, the court shall givejudgment against the defendant upon such admission and shall dismiss thesuit so far as it relates to the remainder except for good cause to be recordedby the court.(3) If the defendant has counterclaimed, he may prove his counterclaimso far as the burden of proof lies on him.[Order 12, rule 4.]When some only ofplaintiffs attend.[Order 12, rule 5]When some only ofdefendants attend.[Order 12, rule 6]Effect of dismissal.4. If only some of the plaintiffs attend, the court may either proceed withthe suit or make such other order as may be just.5. If only some of the defendants attend, the court may proceed with thesuit and may give such judgment as is just in respect of the defendants whohave not attended.6. (1) Subject to subrule (2) and to any law of limitation of actions,where a suit is dismissed under this Order the plaintiff may bring a fresh suit.(2) When a suit has been dismissed under rule 3 no fresh suit may bebrought in respect of the same cause of action.[Order 12, rule 7.]Setting asidejudgment ordismissal.7. Where under this Order judgment has been entered or the suit hasbeen dismissed, the court, on application, may set aside or vary the judgmentor order upon such terms as may be just.

Rev. 2010] Civil Procedure CAP. 21 103ORDER 13[Subsidiary]ADMISSIONS1. Any party to a suit may give notice by his pleading, or otherwise inwriting, that he admits the truth of the whole or part of the case of any other party.2. Any party may at any stage of a suit, where admission of facts hasbeen made, either on the pleadings or otherwise, apply to the court for suchjudgment or order as upon such admissions he may be entitled to, withoutwaiting for the determination of any other question between the parties; andthe court may upon such application make such order, or give such judgment,as the court may think just.[Order 13, rule 1.]Notice of admissionof case.(Order 13, rule 2.]Judgment onadmissions.ORDER 14PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS1. (1) Subject to subrule (2), there shall be endorsed on every documentwhich has been admitted in evidence in the suit the following particulars—(a) the number and title of the suit;[Order 14, rule 1.]Endorsements ondocuments admittedin evidence.(b) the party producing the document; the date on which it wasproduced; and(ccourt.(2) Where a document so admitted is an entry in a book, account orrecord, and a copy thereof has been substituted for the original under rule 2,the particulars aforesaid shall be endorsed on the copy, and the endorsementunder his direction.2. (1) Save in so far as is otherwise provided by any law relating tothe production in evidence of bankers’ books, where a document admitted inevidence in the suit is an entry in a letter-book or a shop- book or other accountin current use, the party on whose behalf the book or account is produced mayfurnish a copy of the entry.(2) Where such a document is an entry in a public record produced fromto a person other than a party on whose behalf the book or account is produced,the court may require a copy of the entry to be furnished—(a) where the record, book, or account is produced on behalf of a party,then by that party; or(b) where the record, book, or account is produced in obedience to[Order 14, rule 2.]Endorsements oncopies of admittedentries in books,accounts, andrecords.

104[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010an order of the court acting on its own motion, then by either orany party.(3) (2), the court shall, after causing the copy to be examined, comparedit occurs to be returned to the person producing it:Provided that the court may accept, in the case of a copy of a publicrecord is.[Order 14, rule 3.]Record of admittedand return of rejecteddocuments.[Order 14, rule 4.]Court may orderany document to beimpounded.[Order 14, rule 5]Return of admitteddocuments.3. (1) Every document which has been admitted in evidence, or a copythereof where a copy has been substituted for the original under rule 2, shallform part of the record of the suit.(2) Documents not admitted in evidence shall not form part of the record,and shall be returned to the persons respectively producing them after they havein rule 1 (1), together with a statement of their having been rejected.4. Notwithstanding anything hereinbefore contained, the court may, if5. (1) Any person, whether a party to the suit or not, desirous of receivingback any document produced by him in the suit and placed on the record, shall,unless the document is impounded under rule 4, be entitled to receive backthe same—(a) when the suit has been disposed of, and, if the suit is one in which(bProvided that—(i) a document may be returned at any time earlier than thatprescribed by this rule if the person applying therefor deliversoriginal and undertakes in writing to produce the original ifrequired to do so;(ii) no document shall be returned which, by force of the decree,has become wholly void or useless.(2) On the return of a document admitted in evidence a receipt shall begiven by the person receiving it.[Order 14, rule 6.]6. (1) The court may of its own motion, and may in its discretion upon

Rev. 2010] Civil Procedure CAP. 21 105the application of any of the parties to a suit, send for, either from its ownrecords, or from any other court, the record of any other suit or proceedingand inspect the same.[Subsidiary]Court may send forrecords of its own orof other Court.(2) Every application made under this rule shall (unless the court material to the suit in which the application is made, and that the applicantcannot without unreasonable delay or expense obtain a duly authenticated copyof the record or of such portion thereof as the applicant requires, or that theproduction of the original is necessary for the purposes of justice.(3) Nothing contained in this rule shall be deemed to enable the courtto use in evidence any document which under the law of evidence would beinadmissible in the suit.7. The provisions herein contained as to documents shall, so far as maybe, apply to all other material objects producible as evidence.ORDER 15[Order 14, rule 7.]Provisions as todocuments applied tomaterial objects.ISSUESby the one party and denied by the other.[Order 15, rule 1.]Framing of issues.(2) Issues are of two kinds—(a) issues of fact; and(b) issues of law.(3) Material propositions are those propositions of law or fact which aplaintiff must allege in order to show a right to sue or a defendant must allegein order to constitute a defence.other shall form the subject of a distinct issue.2. The court may frame the issues from all or any of the followingmaterials—(a) allegations made on oath by the parties, or by any persons presenton their behalf, or made by the advocates of such parties;[Order 15, rule 2]Materials fromwhich issues may beframed.(b) allegations made in the pleading or in answers to interrogatoriesdelivered in the suit;(c) the contents of documents produced by either party.

106[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 16SUMMONING AND ATTENDANCE OF WITNESSES[Order 16, rule 1]Summons to attendto give evidence orproduce documents.[Order 16, rule 2.]Expenses ofwitnesses to bepaid into courton applying forsummons.1. At any time before the trial conference under Order 11 the parties maysummonses to persons whose attendance is required either to give evidence orto produce documents.2. (1) The party applying for a summons shall, before the summons isthe persons summoned in passing to and from the court in which he is requiredto attend, and for one day’s attendance.(2) In determining the amount payable under this rule regard shall be hadto such scale for expenses of witnesses as may from time to time be approvedby the High Court, but the court may, in the case of any person summoned togive evidence as an expert, allow reasonable remuneration for the time occupiedboth in giving evidence and in performing any work of an expert characternecessary for the case.[Order 16, rule 3.]Tender of expenseslodged.3. The sum so paid into court shall be tendered to the person summonedat the time of serving the summons, if it can be served personally; or if the courtwill be paid out to him on his attendance.[Order 16, rule 4.]Procedure wherepaid in. Expenses ofwitnesses detainedmore than one day.or reasonable remuneration, the court may direct such further sum to be paid tothe person summoned as appears to be necessary on that account, and, in caseof default in payment, may order such sum to be levied by attachment and saleof the movable property of the party obtaining the summons; or the court maydischarge the person summoned without requiring him to give evidence; or mayboth order such levy and discharge such person as aforesaid.(2) Where it is necessary to detain the person summoned for a longerperiod than one day, the court may from time to time order the party at whosethe expenses of his detention for such further period, and, in default of suchdeposit being made, may order such sum to be levied by attachment and saleof the movable property of such party; or the court may discharge the personsummoned without requiring him to give evidence; or may both order suchlevy and discharge such person as aforesaid.[Order 16, rule 5.]Time, place, andpurpose of attendancesummons.5. Every summons for the attendance of a person to give evidence or toproduce a document shall specify the time and place at which he is required toattend, and whether his attendance is required for the purpose of giving evidenceor 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 thesummons with reasonable accuracy.

Rev. 2010] Civil Procedure CAP. 21 107[Subsidiary]6. Any person may be summoned to produce a document without beingsummoned to give evidence; and any person summoned merely to produce adocument shall be deemed to have complied with the summons if he causes suchdocument to be produced instead of attending personally to produce the same.7. Any person present in court may be required by the court to giveevidence or to produce any document there and then in his possession or power[Order 16, rule 6.]Summons to producedocuments.[Order 16, rule 7.]Power to requirepersons presentin court to giveevidence or producedocument.8. Every summons under this Order shall be served as nearly as may bein the same manner as a summons to a defendant, and the rules in Order 5 as toproof of service shall apply in the case of all summonses served under this rule.allow him a reasonable time for preparation and for travelling to the place atwhich his attendance is required. 10. (1) Where a person to whom a summons has been issued, either toattend to give evidence or to produce a document, fails to attend or to produceby another court, touching the service or non-service of the summons.(2) Where the court has reason to believe that such evidence or productionis material, and that such person has, without lawful excuse, failed to attend orto produce the document in compliance with the summons or has intentionallyavoided service, it may issue a proclamation requiring him to attend to giveevidence or to produce the document at a time and place to be named therein;conspicuous part of the house in which he ordinarily resides.(3) In lieu of or at the time of issuing such proclamation, or at any timeafterwards, the court may, in its discretion, issue a warrant, either with or withoutbail, for the arrest of such person, and may make an order for the attachment11. Where, at any time after the attachment of his property, such person(a) that he did not, without lawful excuse, fail to comply with the[Order 16, rule 8.]Summons, howserved[Order 16, rule 9.]Time for servingsummons.[Order 16, rule 10.]Procedure wherewitness fails tocomply withsummons.[Order 16, rule 11.]If witness appearsattachment may bewithdrawn.

108[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010summons or intentionally avoid service; and(b) where he has failed to attend at the time and place named in aproclamation issued under rule 10, that he had no notice of suchproclamation in time to attend,the Court shall direct that the property be released from attachment, and shall[Order 16, rule 12.]Procedure if witnessfails to appear.12. The court may, where such person does not appear, or appears butregard to his condition in life and all the circumstances of the case, and mayorder his property, or any part thereof, to be attached and sold, or, if alreadyattached under rule 10, to be sold for the purpose of satisfying all costs of suchProvided that, if the person whose attendance is required pays intoreleased from attachment.[Order 16, rule 13.]Mode of attachment.[Order 16, rule 14.]Duty of personssummoned to giveevidence or producedocument.[Order 15, rule 15.]When summonedpersons may depart.[Order 16 rule 16.]Application of rules10 to 13.[Order 16, rule 17.]Procedure wherewitness apprehendedcannot give evidenceor produce document.13. The provisions with regard to the attachment and sale of property inthe execution of a decree shall, so far as they are applicable, be deemed to applyto any attachment and sale under this Order as if the person whose property isso attached were a judgment-debtor.14. Whoever is summoned to appear and give evidence in a suit shallattend at the time and place named in the summons for that purpose, and whoeveris summoned to produce a document shall either attend to produce it or causeit to be produced at such time and place.15. (1) A person so summoned and attending shall, unless the courtotherwise directs, attend at each hearing until the suit has been disposed of.(2) The court may upon the oral application of either party in court orupon application by summons in chambers and upon payment through the courtof all necessary expenses require any person so summoned to furnish securityfor his attendance at the next hearing or any further hearing or until the suit isdisposed of and in default of his furnishing such security may order him to bedetained in prison.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 asummons, departs without lawful excuse in contravention of rule 15.17. Where any person arrested under a warrant is brought before the courtin custody, and cannot, owing to the absence of the parties or any of them, givethe evidence or produce the document which he has been summoned to giveor produce, the court may require him to give reasonable bail or other securitysecurity being given may release him, and in default of his giving such bail or

Rev. 2010] Civil Procedure CAP. 21 109security may order him to be detained in prison.18. Where any party to a suit present in court refuses, without lawfulexcuse, when required by the court, to give evidence or produce any documentthere and then in his possession or power, the court may pronounce judgment19. Where any party to a suit is required to give evidence, or to producea document, the provisions as to witnesses shall apply to him so far as theyare applicable.[Subsidiary][Order 16, rule 18.]Consequence ofrefusal of a party togive evidence whencalled on by theCourt.[Order 16, rule 19.]Rules as to witnessesto apply to partiessummoned.ORDER 17PROSECUTION OF SUITS1. (1) Once the suit is set down for hearing, it shall not be adjournedthe adjournment.(2) When the court grants an adjournment it shall give a date for furtherhearing or directions.[Order 17, rule 1.]Hearing from dayto day.2. (1) In any suit in which no application has been made or step takenby either party for one year, the court may give notice in writing to the partiesto show cause why the suit should not be dismissed, and if cause is not shownto its satisfaction, may dismiss the suit.[Order 17, rule 2]Notice to show causewhy suit should notbe dismissed.(2) If cause is shown to the satisfaction of the court it may make such(3) Any party to the suit may apply for its dismissal as provided insub-rule 1.(4) The court may dismiss the suit for non-compliance with any directiongiven under this Order.3. Where, on any day to which the hearing of the suit is adjourned, theparties or any of them fail to appear, the court may proceed to dispose of thesuit in one of the modes directed in that behalf by Order 12, or make such other4.Where any party to a suit to whom time has been granted fails toproduce his evidence, or to cause the attendance of his witnesses, or to performany other act necessary to the further progress of the suit, for which time hasbeen allowed, the court may, notwithstanding such default, proceed to decidethe suit forthwith.[Order 17, rule 3.]Procedure if partiesfail to appear on day[Order 17, rule 4.]Court may proceednotwithstandingeither party fails toproduce evidence.

110[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 18HEARING OF SUIT AND EXAMINATION OF WITNESSES[Order 18, rule 1.]Right to begin.[Order 18, rule 2.]Statement andproduction ofevidence.1.The plaintiff shall have the right to begin unless the court otherwiseorders.2. Unless the court otherwise orders—which the hearing is adjourned, the party having the right to begin shall statehis case and produce his evidence in support of the issues which he is boundto prove.(2) The other party shall then state his case and produce his evidence,and may then address the court generally on the case. The party beginningmay then reply.(3) After the party beginning has produced his evidence then, if the otherparty has not produced and announces that he does not propose to produceevidence, the party beginning shall have the right to address the court generallyon the case; the other party shall then have the right to address the court in reply,but if in the course of his address he cites a case or cases the party beginningshall have the right to address the court at the conclusion of the address of theother party for the purpose of observing on the case or cases cited.(4) The court may in its discretion limit the time allowed for addressesby the parties or their advocates.[Order 18, rule 3.]Witnesses to beexamined in opencourt.[Order 18, rule 4.]How evidence to berecorded.3. The evidence of the witnesses in attendance shall be taken orallyin open court in the presence of and under the personal direction andsuperintendence of the judge.4. The evidence of each witness shall be taken down in writing by or inthe 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, andwhen completed shall be signed by the judge:Provided that—(i) the court may use such recording processes and technology asmay from time to time be approved;(ii) the transcript of such evidence when checked and approved by[Order 18, rule 5.]Any particularquestion and answermay be taken down.5. The court may, of its own motion or on the application of any party orhis advocate, take down any particular question and answer, or any objection toany question, if there appears to be any special reason for so doing.

Rev. 2010] Civil Procedure CAP. 21 1116. Where any question put to a witness is objected to by a party or hisadvocate, and the court allows the same to be put, the judge shall take downthe question, the answer, the objection, and the name of the person making it.7. The court may record such remarks as it thinks material respectingthe demeanour of any witness while under examination.8. (1) Where a judge is prevented by death, transfer, or other cause fromconcluding the trial of a suit or the hearing of any application, his successormay deal with any evidence taken down under the foregoing rules as if suchevidence had been taken down by him or under his direction under the saidrules, and may proceed with the suit or application from the stage at which hispredecessor left it.[Subsidiary][Order 18, rule 6.]Questions objected toand allowed by court.[Order 18, rule 7.]Remarks ondemeanour ofwitness.[Order 18, rule 8.]Power to deal withevidence taken beforeanother judge.(2) The provisions of subrule (1) shall, so far as they are applicable,be deemed to apply to evidence taken in a suit transferred under section 18of the Act.9. (1) Where a witness is about to leave the jurisdiction of the court, orshould be taken immediately, the court may, upon the application of any partyor of the witness, at any time after institution of the suit, take the evidence ofsuch witness in the manner hereinbefore provided.(2) Where such evidence is not taken forthwith and in the presence ofexamination, shall be given to the parties.(3) The evidence so taken shall be signed by the judge and shall beevidence in the suit.[Order 18, rule 9.]Power to examinewitness immediately.10. The court may at any stage of the suit recall any witness who hasbeen examined, and may, subject to the law of evidence for the time being in11. The court may at any stage of a suit inspect any property or thingconcerning which any question may arise.[Order 18, rule 10.]Court may recall andexamine witness.[Order 18, rule 11].Power of court toinspect.ORDER 19AFFIDAVITSmay be read at the hearing, on such conditions as the court thinks reasonable:Provided that, where it appears to the court that either party desires the production of a witness for cross-examination and that such witness[Order 19, rule 1.]Power to order anypoint to be proved by

112[Subsidiary][Order 19, rule 2.]Power to orderattendance ofdeponent for crossexamination.[Order 19, rule 3.]Matters to whichCAP. 21 Civil Procedure [Rev. 2010can be produced, an order shall not be made authorising the evidence of suchthe court may, at the instance of either party, order the attendance for crossexaminationof the deponent.(2) Such attendance shall be in court, unless the deponent is exemptedfrom personal appearance in court, or the Court otherwise directs.of his own knowledge to prove:Provided that in interlocutory proceedings, or by leave of the court, anand grounds thereof.of hearsay or argumentative matter or copies of or extracts from documents,[Order 19, rule 4.]Deponent’sparticulars.[Order 19, rule 5.]Manner of drawing[Order 19, rule 6.]Striking out matter.[Order 19, rule 7.]Irregularity in form[Order 19, rule 8.][Order 19, rule 9.]Procedure.postal address of the deponent, and if the deponent is a minor shall state his age.be to a distinct portion of the subject.which is scandalous, irrelevant or oppressive.used in any suit notwithstanding any defect by misdescription of the partiesor otherwise in the title or other irregularity in the form thereof or on anytechnicality.9. Applications under this Order may by chamber summons or orallyin court.ORDER 20APPLICATION FOR AN ACCOUNT[Order 20, rule 1.]Order for accounts.1. Where a plaint prays for an account, or where the relief sought or theplaint involves the taking of an account, if the defendant either fails to appear or

Rev. 2010] Civil Procedure CAP. 21 113some preliminary question to be tried, an order for the proper accounts with allnecessary inquiries and directions usual in similar cases shall forthwith be made.counterclaim which includes a claim for an account or a claim which necessarilyinvolves taking an account, on—[Subsidiary][Order 20, rule 2.]Order for accounts oncounterclaim.(a) the plaintiff;(b) any other party; or(c) any person who becomes a party by virtue of such service,may apply for an order under this rule.3. An application for such order as is mentioned in rule 1 and 2 shall bean account; and such application may be made at any time after the time forentering an appearance has expired.is some preliminary question to be tried, order that an account be taken and may[Order 20, rule 3.]Procedure.[Order 20, rule 4.]Orders by court.ORDER 21JUDGMENT AND DECREE1. In suits where a hearing is necessary, the court, after the case hasbeen heard, shall pronounce judgment in open court, either at once or withinsixty days from the conclusion of the trial notice of which shall be given to theparties or their advocates.[Order 21, rule 1.]Judgment, whenpronounced.Provided that where judgment is not given within sixty days the judgeshall record reasons thereof copy of which shall be forwarded to the Chief2. (1) A judge may pronounce a judgment written and signed but notpronounced by his predecessor.(2) A judge of the High Court may pronounce a judgment written andsigned but not pronounced by another judge of the High Court.3. (1) A judgment pronounced by the judge who wrote it shall be datedand signed by him in open court at the time of pronouncing it.(2) A judgment pronounced by a judge other than the judge by whom it[Order 21, rule 2.]Power to pronouncejudgment written byanother judge.[Order 21, rule 3.]Judgment to besigned.

114[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010was written shall be dated and countersigned by him in open court at the timeof pronouncing it.(3) A judgment once signed shall not afterwards be altered or added tosave as provided by section 99 of the Act or on review.[Order 21, rule 4.]Contents ofjudgment.[Order 21, rule 5.]Court to state itsdecision on eachissue.[Order 21, rule 6.]Judgment affectingregistered title toland.[Order 21, rule 7.]Contents of decree.4. Judgments in defended suits shall contain a concise statement of thecase, the points for determination, the decision thereon, and the reasons forsuch decision.5. In suits in which issues have been framed, the court shall state its6. Where there is a prayer for a judgment the grant of which would resultin some alteration to the title of land registered under any written law concerningthe court before any such judgment is delivered.7. (1) The decree shall agree with the judgment; it shall contain thenumber of the suit, the names and descriptions of the parties, and particularsof the claim, and shall specify clearly the relief granted or other determinationof the suit.(2) The decree shall also state by whom or out of what property or inwhat proportion the costs incurred in the suit are to be paid.(3) The court may direct that the costs payable to one party by the othershall be set-off against any sum which is admitted or found to be due from theformer to the latter.[Order 21, rule 8.]Preparation anddating of decrees andorders.8. (1) A decree shall bear the date of the day on which the judgmentwas delivered.(2) Any party in a suit in the High Court may prepare a draft decree andsubmit it for the approval of the other parties to the suit, who shall approve itwith or without amendment, or reject it, without undue delay; and if the draftthat it is drawn up in accordance with the judgment, shall sign and seal thedecree accordingly.(3) If no approval of or disagreement with the draft decree is receivedwithin seven days after delivery thereof to the other parties, the registrar, onup in accordance with the judgment, shall sign and seal the decree accordingly.same in chambers before the judge who heard the case or, if he is not available,before any other judge, and shall give notice thereof to the parties.

Rev. 2010] Civil Procedure CAP. 21 115(5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinatecourt and reference to the registrar and judge in the subrules shall refer tomagistrate.(6) Any order, whether in the High Court or in a subordinate court,which is required to be drawn up, shall be prepared and signed in like manneras a decree.(7) Nothing in this rule shall limit the power of the court to approve adraft decree at the time of pronouncing judgment in the suit, or the power ofthe court to approve a draft order at the time of making the order.[Subsidiary]9. (1) Where the amount of costs has been—(a) agreed between the parties;(b[Order 21, rule 9.]Costs.Sub-Leg Cap. 16.(c (Remuneration) Order; or(d) taxed by the court,the amount of costs may be stated in the decree or order.(2) In all other cases, and where the costs have not in fact been stated inthe decree or order in accordance with subrule (1), after the amount of the costsSub-Leg Cap. 16.paragraph 10 of the Advocates (Remuneration) Order.10. Where the subject-matter of the suit is immovable property, thein a government record or survey, the decree shall specify such boundaries ornumbers.[Order 21, rule 10.]Decree for recoveryof immovableproperty.11. Where the suit is in respect of movable property, and the decree is forthe delivery of such property, the decree shall also state the amount of moneyto be paid as an alternative if delivery cannot be had.[Order 21, rule 11.]Decree for deliveryof movable property.12. (1) Where and in so far as a decree is for the payment of money,that payment of the amount decreed shall be postponed or shall be made byinstalments, with or without interest, notwithstanding anything contained inthe contract under which the money is payable.(2) After passing of any such decree, the court may on the application of[Order 21, rule 12.]Decree maydirect payment byinstalments.

116[Subsidiary][Order 21, rule 13.]Decree for possessionand mesneCAP. 21 Civil Procedure [Rev. 2010the judgment-debtor and with the consent of the decree- holder or without theof the amount decreed be postponed or be made by instalments on such terms asto the payment of interest, the attachment of the property of the judgment-debtor13. (1) Where a suit is for the recovery of possession of immovableproperty and for rent or mesne(a) for the possession of the property;(bduring a period prior to the institution of the suit or directing aninquiry as to such rent or mesne(c) directing an inquiry as to rent or mesneof such suit until—(i) the delivery of possession to the decree-holder;(ii) the relinquishment of possession by the judgment- debtor withnotice to the decree-holder through the court; or(iii) the expiration of three years from the date of the decree,(2) Where an inquiry is directed under subrule (1) (b) or (1) (cwith the result of such inquiry.[Order 21, rule 14.]Decree inadministration suit.14. (1) Where a suit is for an account in respect of any property or for itsdue administration under the decree of the court, the court shall, before passing(2) In the administration by the court of the property of any deceaseddebts and liabilities, the same rules shall be observed as to the respective rightsof secured and unsecured creditors, and as to debts and liabilities provable, andas to the valuation of annuities and future and contingent liabilities, respectively,as may be in force for the time being with respect to the estates of personsadjudged or declared insolvent; and all persons, who in any such case wouldbe entitled to be paid out of such property, may come in under the preliminarydecree, and make such claims against the same as they may respectively beentitled to by virtue of this Act.[Order 21, rule 15.]Decree in suitfor dissolution ofpartnership.15. Where a suit is for the dissolution of a partnership, or the takingthe day on which the partnership shall stand dissolved, or be deemed to havebeen dissolved, and directing such accounts to be taken, and other acts to be

Rev. 2010] Civil Procedure CAP. 21 117[Subsidiary]16. In a suit for an account of pecuniary transactions between a principaland an agent, and in any other suit not hereinbefore provided for, where it isnecessary, in order to ascertain the amount of money due to or from any party,[Order 21, rule 16.]Decree in suit foraccount betweenprincipal and agent.17. The court may, either by the decree directing an account to be takenor by any subsequent order, give special directions with regard to the mode inwhich the account is to be taken or vouched, and in particular may direct thatin taking the account the books of account in which the accounts in questionhave been kept shall be taken as prima facie evidence of the truth of the mattertherein contained with liberty to the parties interested to take such objectionthereto as they may be advised.18. Where a court passes a decree for the partition of property or for theseparate possession of a share therein, the court may, if the partition or separationcannot be conveniently made without further inquiry, pass a preliminary decreedeclaring the rights of the parties interested in the property and giving suchfurther directions as may be required.19. (1) Where the defendant has been allowed a set-off against the claimof the plaintiff, the decree shall state what amount is due to the plaintiff andwhat amount is due to the defendant, and shall be for the recovery of any sumwhich appears to be due to either party.[Order 21, rule 17.]Special directions asto accounts.[Order 21, rule 18.]Decree in suitfor partition ofproperty or separatepossession of a share.[Order 21, rule 19.]Decree where set-offis allowed.(2) Any decree passed in a suit in which a set-off is claimed shall besubject to the same provisions in respect of appeal to which it would have beensubject if no set-off had been claimed.(3) The provisions of this rule shall apply whether or not the set- off isadmissible under rule 3 of Order 7.20.The registrar, or in the case of a subordinate court, the presidingmagistrate shall upon written request made by the parties or any of them, anddecree:Provided that nothing in this rule shall preclude the registrar or thecause being shown for such request.[Order 21, rule 20.]judgment and decreeto be furnished.ORDER 22EXECUTION OF DECREES AND ORDERS1. (1) All money payable under a decree or order shall be paid asfollows—[Order 22, rule 1.]Modes of payingmoney under decree.

118[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(a) into the court whose duty it is to execute the decree;(b) direct to the decree-holder; or(c) otherwise as the court which made the decree directs.(2) Where any payment is made under subrule (1) (a), notice of suchpayment shall be sent by the court to the decree-holder and his advocate, if any.[Order 22, rule 2.]Payment out of courtto decree-holder.2. (1) Where any money payable under a decree of any kind is paid directto the decree-holder or the decree is otherwise adjusted in whole or in part to thesatisfaction of the decree-holder, the decree- holder may certify such paymentor adjustment to the court whose duty it is to execute the decree, and the courtshall record the same accordingly.(3) The judgment-debtor also may inform the court of such payment oradjustment, and apply to the court to issue a notice to the decree-holder to showfails to show cause why the payment or adjustment should not be recorded as[Order 22, rule 3.]Lands situate in morethan one jurisdiction.[Order 22, rule 4.]Procedure wherecourt desires that itsown decree shall beexecuted by anothercourt.3.Where immovable property forms one estate or tenure situate withinthe local limits of the jurisdiction of two or more courts, any one of such courtsmay attach and sell the entire estate or tenure.4. The court sending a decree for execution by another court shall send—(a) a copy of the decree;(bobtained by execution within the jurisdiction of the court by whichit was passed, or, where the decree has been executed in part, theextent to which satisfaction has been obtained and what part of thedecree remains unexecuted; and(c) a copy of any order for the execution of the decree, or, if no such[Order 22, rule 5.]Court receivingcopies of decree toproof.[Order 22, rule 6.]Application forexecution.5. The court to which a decree is so sent shall cause such copies andexecution, or of the copies thereof, unless the court, for any special reasons tobe recorded under the hand of the judge, requires such proof.6. Where the holder of a decree desires to execute it, he shall apply tothe court which passed the decree, or, if the decree has been sent under theprovisions hereinbefore contained to another court, then to such court or to thewith Form No. 14 of Appendix A:Provided that, where judgment in default of appearance or defence

Rev. 2010] Civil Procedure CAP. 21 119has been entered against a defendant, no execution by payment, attachmentor eviction shall issue unless not less than ten days notice of the entry ofjudgment has been given to him either at his address for service or served onfor execution.7. (1) Where a decree is for the payment of money the court may, on theoral application of the decree-holder at the time of the passing of the decree,order immediate execution thereof by the arrest of the judgment-debtor, priorto the preparation of a warrant, if he is within the precincts of the court.[Subsidiary][Order 22, rule 7.]Oral and writtenapplications.(2) Save as otherwise provided by subrule (1) or by any other enactmentor rule, every application for the execution of a decree shall be in writing,signed by the applicant or his advocate or by some other person proved to thesatisfaction of the court to be acquainted with the facts of the case, and shallcontain in a tabular form the following particulars—(a) the number of the suit;(b) the names of the parties;(c) the date of the decree;(d) whether any appeal has been preferred from the decree;(e) whether any, and, if any, what payment or other adjustment of thematter in controversy has been made between the parties subsequentto the decree;(f) whether any, and if any, what previous applications have been madefor the execution of the decree, the dates of such applications, andtheir results;(g) the amount with interest, if any, due upon the decree, or other reliefgranted thereby, together with particulars of any cross- decree,whether passed before or after the date of the decree sought to beexecuted;(h) the amount of the costs, if any, awarded;(i) the name of the person against whom execution of the decree issought; and(j) the mode in which the assistance of the court is required, whether—(ii) by the attachment and sale, or by the sale without attachment,of any property;(iii) by the arrest and detention in prison of any person;

120CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](iv) by the appointment of a receiver;(v) otherwise, as the nature of the relief granted may require.(3) The court to which an application is made under subrule (2) may[Order 22, rule 8.]Application forattachment ofmovableproperty notin judgment-debtor’spossession.[Order 22, rule 9.]Application forattachment ofimmovable propertyto contain certainparticulars.8.Where an application is made for the attachment of any movableproperty belonging to a judgment-debtor, but not in his possession, the decreeholdershall annex to the application an inventory of the property to be attached,containing a reasonably accurate description of the same.9. Where an application is made for the attachment of any immovableproperty belonging to a judgment-debtor, it shall contain at the foot—(aor numbers; and(bproperty to the best of the belief of the applicant, and so far as hehas been able to ascertain the same.[Order 22, rule 10.]Power to requireLand Registries incertain cases.[Order 22, rule 11.]Application forexecution by jointdecree-holders.10. Where an application is made for the attachment of any land whichis registered in the Land Registries, the court may require the applicant toregistered as proprietors of, or as possessing, any transferable interest in theland or its revenue, or as liable to pay revenue for the land, and the shares ofthe registered proprietors.11. (1) Where a decree has been passed jointly in favour of more personsthan one, any one or more of such persons may, unless the decree imposes anycondition to the contrary, apply for the execution of the whole decree for theand the legal representatives of the deceased.to be executed on an application made under this rule it shall make such orderas it deems necessary for protecting the interests of the persons who have notjoined in the application.[Order 22, rule 12.]Application forexecution bytransferee of decree.12.Where a decree or, if a decree has been passed jointly in favour of twoor more persons, the interest of any decree-holder in the decree is transferredby assignment in writing or by operation of law, the transferee may applyfor execution of the decree to the court which passed it; and the decree maybe executed in the same manner and subject to the same conditions as if theapplication were made by such decree-holder:

Rev. 2010] Civil Procedure CAP. 21 121Provided that—(a) where the decree, or such interest as aforesaid, has been transferredby assignment, notice of such application shall be given to thetransferor and the judgment-debtor, and the decree shall not beexecuted until the court has heard their objections, if any, to itsexecution; or(b) where a decree for the payment of money against two or morepersons has been transferred to one of them, it shall not be executedagainst the others.[Subsidiary]13. (1) On receiving an application for the execution of a decree asprovided by rule 7 (2), the court shall ascertain whether such of the requirementsof rules 7 to 9 as may be applicable to the case have been complied with; and, ifthey have not been complied with, the court may reject the application, or may[Order 22, rule13.]Procedure onreceiving anapplication forexecution of decree.(2) Where an application is amended under subrule (1), it shall be deemedto have been an application in accordance with law and presented on the date(3) Every amendment made under this rule shall be signed and datedby a judge or registrar.(4) When the application is admitted, the court shall, subject to theprovisions hereinafter contained, order execution of the decree according tothe nature of the application:Provided that in the case of a decree for the payment of money the valueof the property attached shall, as nearly as may be, correspond with the amountdue under the decree.14. (1) Where applications are made to a court for the execution of crossdecreesin separate suits for the payment of two sums of money passed betweenthe same parties and capable of execution at the same time by such court, then—[Order 22, rule 14.]Execution in case ofcross-decrees.(a) if the two sums are equal, satisfaction shall be entered upon bothdecrees; and(b) if the two sums are unequal, execution may be taken out only bythe holder of the decree for the larger sum and for so much only asremains after deducting the smaller sum, and satisfaction for thesmaller sum shall be entered on the decree for the larger sum aswell as satisfaction on the decree for the smaller sum.(2) This rule shall be deemed to apply where either party is an assignee ofone of the decrees and as well in respect of judgment-debts due by the originalassignor as in respect of judgment-debts due by the assignee himself.

122[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(3) This rule shall not be deemed to apply, unless—(a) the decree-holder in one of the suits in which the decrees havethe same character in both suits; and(b(4) The holder of a decree passed against several persons jointly andseverally may treat it as a cross-decree in relation to a decree passed againsthim singly in favour of one or more of such persons.[Order 22, rule 15.]Execution in case ofcross-claims undersame decree.15.Where application is made to a court for the execution of a decreeunder which two parties are entitled to recover sums of money from eachother, then—(a) if the two sums are equal, satisfaction for both shall be enteredupon the decree; and(b) if the two sums are unequal, execution may be taken out only bythe party entitled to the larger sum, and for so much only as remainsafter deducting the smaller sum, and satisfaction of the smaller sumshall be entered upon the decree.[Order 22, rule 16.]Cross-decrees andcross-claims inmortgage suits.[Order 22, rule 17.]Simultaneousexecution.[Order 22, rule 18.]Notice to show causeagainst execution incertain cases.16. The provisions of rules 14 and 15 shall apply when one or both ofthe decrees for sale is in enforcement of a mortgage or charge.17. The court may, in its discretion, refuse execution at the same timeagainst the person and property of the judgment-debtor.18. (1) Where an application for execution is made—(a) more than one year after the date of the decree;(b) against the legal representative of a party to the decree; or(c) for attachment of salary or allowance of any person under rule 43,the court executing the decree shall issue a notice to the person against whomthe decree should not be executed against him:Provided that no such notice shall be necessary in consequence of morethan one year having elapsed between the date of the decree and the applicationfor execution if the application is made within one year from the date of thelast order against the party against whom the execution is applied for, made onany previous application for execution, or in consequence of the applicationbeing made against the legal representative of the judgment-debtor, if upon a

Rev. 2010] Civil Procedure CAP. 21 123previous application for execution against the same person the court has orderedexecution to issue against him:[Subsidiary]Provided further that no such notice shall be necessary on any applicationfor the attachment of salary or allowance which is caused solely by reason ofthe judgment-debtor having changed his employment since a previous orderfor attachment.(2) Nothing in subrule (1) shall be deemed to preclude the court fromissuing any process in execution of a decree without issuing the notice therebyprescribed, if, for reasons to be recorded, it considers that the issue of suchnotice would cause unreasonable delay or would defeat the ends of justice.(3) Except as provided in rule 6 and in this rule, no notice is required tobe served on a judgment debtor before execution is issued against him.19. (1) Where the person to whom notice is issued under rule 18 does notappear or does not show cause to the satisfaction of the court why the decreeshould not be executed, the court shall order the decree to be executed.[Order 22, rule 19.]Procedure after issueof notice.(2) Where such person offers any objection to the execution of the decree,20. (1) When the preliminary measures (if any) required by the foregoingrules have been taken, the court shall, unless there is cause to the contrary, issueits process for the execution of the decree.[Order 22, rule 20.]Process of execution.(2) Every such process shall bear the date and the day on which it isin this behalf, and shall be sealed with the seal of the court and delivered to the endorse thereon the day on, and the manner in which it was executed, and, ifthe reason for the delay, or, if it was not executed, the reason why it was notexecuted, and shall return the process with such endorsement to the court.execute the process, the court may examine him touching his alleged inability,and shall record the result.22. (1) The court to which a decree has been sent for execution shall,reasonable time to enable the judgment-debtor to apply to the court by whichthe decree was passed, or to any court having appellate jurisdiction in respectof the decree or the execution thereof, for an order to stay the execution, or forany other order relating to the decree or execution which might have been madethereby, or if application for execution has been made thereto.[Order 22, rule 21.]Endorsement onprocess.[Order 22, rule 22.]When court may stayexecution.

124CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](2) Where the property or person of the judgment-debtor has beenseized under an execution, the court which issued the execution may order therestitution of such property or the discharge of such person pending the resultsof the application.(3) Before making an order to stay execution or for the restitution ofproperty or the discharge of the judgment-debtor the court may require suchsecurity from, or impose such conditions upon, the judgment-debtor as it[Order 22, rule 23.]Liability ofjudgment-debtordischarged.[Order 22, rule 24.]Order of court whichpassed decree or ofappellate court to bebinding upon courtapplied to.[Order 22, rule 25.]Stay of executionpending suit betweendecree- holder andjudgment-debtor.[Order 22, rule 26.]Decree for paymentof money.[Order 22, rule 27.]movable property.23. No order of restitution or discharge under rule 22 shall prevent theproperty or person of a judgment-debtor from being retaken in execution ofthe decree sent for execution.24. Any order of the court by which a decree is passed, or of such appellatecourt as aforesaid, in relation to the execution of such decree, shall be bindingupon the court to which the decree is sent for execution.25. Where a suit is pending in any court against the holder of a decreeof such court in the name of the person against whom the decree was passed,execution of the decree until the pending suit has been decided.26. Subject to the provisions of section 38 of the Act, every decree forthe payment of money, including a decree for the payment of money as analternative to some other relief, may be executed by the detention in prison ofthe judgment-debtor, or by the attachment and sale of his property, or by both.movable or share, and by the delivery thereof to the party to whom it has beenadjudged, or to such person as he appoints to receive delivery on his behalf,or by the detention in prison of the judgment-debtor, or by the attachment ofhis property, or by both.(2) Where any attachment under subrule (1) has remained in force for sixmonths, if the judgment-debtor has not obeyed the decree and the decree-holderhas applied to have the attached property sold, such property may be sold, andout of the proceeds the court may award to the decree-holder, in cases whereof movable property, such amount and, in other cases, such compensation asapplication.(3) Where the judgment-debtor has obeyed the decree and paid all costs of

Rev. 2010] Civil Procedure CAP. 21 125executing the same which he is bound to pay, or where, at the end of six monthsfrom the date of attachment, no application to have the property sold has beenmade, or, if made, has been refused, the attachment shall cease. performance of a contract, or for an injunction, has been passed, has hadan opportunity of obeying the decree, and has wilfully failed to obey it; thedecree may be enforced by his detention in prison, or by the attachment of hisproperty, or by both.[Subsidiary][Order 22, rule 28.]performance or for aninjunction.for an injunction has been passed is a corporation the decree may be enforcedby the attachment of the property of the corporation.(3) Where any attachment under subrule (1) or (2) has remained inforce for six months, if the judgment-debtor has not obeyed the decree and thedecree-holder has applied to have the attached property sold, such propertymay be sold; and out of the proceeds the court may award to the decree-holderjudgment-debtor on his application.(4) Where the judgment-debtor has obeyed the decree and paid all costsof executing the same which he is bound to pay, or where at the end of sixmonths from the date of the attachment, no application to have the propertysold has been made, or, if made, has been refused, the attachment shall cease.injunction has not been obeyed, the court may, in lieu of or in addition to all orany of the processes aforesaid, direct that the act required to be done may bedone so far as practicable by the decree- holder, or some other person appointedby the court, at the cost of the judgment-debtor, and upon the act being done theexpenses incurred may be ascertained in such manner as the court may directand may be recovered as if they were included in the decree.29. (1) Where a decree is for the delivery of any immovable property,possession thereof shall be delivered to the party to whom it has been adjudged,or to such person as he may appoint to receive delivery on his behalf, and, ifnecessary, by removing any person bound by the decree who refuses to vacatethe property.[Order 22, rule 29.]Decree forimmovable property.(2) Where a decree is for the joint possession of immovable property,conspicuous place on the property.(3) Where possession of any building or enclosure is to be delivered,and the person in possession being bound by the decree does not afford freefacility to any woman not appearing in public according to the customs of hercommunity to withdraw, remove or open any lock or bolt or break open anydoor or do any other act necessary for putting the decree-holder in possession.

126[Subsidiary][Order 22, rule 30.]Decree for deliveryof immovable.property when inoccupancy of tenant.[Order 22, rule 31.]Discretionary powerto permit judgmentdebtorto show causeagainst detention inprison.CAP. 21 Civil Procedure [Rev. 201030. Where a decree is for the delivery of any immovable property inthe occupancy of a tenant or other person entitled to occupy the same and notbound by the decree to relinquish such occupancy, the court shall order deliverythe property and notifying the occupant in such manner as may be suitable thesubstance of the decree in regard to the property.31. (1) Notwithstanding anything in these Rules, where an application isfor the execution of a decree for the payment of money by the arrest and detentionin prison of a judgment-debtor who is liable to be arrested in pursuance of theapplication, the court may, instead of issuing a warrant for his arrest, issue athe notice and show cause why he should not be committed to prison.(2) Where appearance is not made in obedience to the notice, the courtshall, if the decree-holder so requires, issue a warrant for the arrest of thejudgment-debtor.[Order 22, rule 32.]Warrant for arrestto direct judgmentdebtorto be broughtup.[Order 22, rule 33.]Subsistenceallowance.32. Every warrant for the arrest of a judgment-debtor shall direct the convenient speed, unless the amount which he has been ordered to pay, togetherwith the interest thereon and the costs (if any) to which he is liable, be soonerpaid.33. (1) No judgment-debtor shall be arrested in execution of a decreefor the subsistence of the judgment-debtor from the time of his arrest until hecan be brought before the court.(2) Where a judgment-debtor is committed to prison in execution of aparty on whose application the judgment-debtor has been arrested by monthly(4) Sums disbursed by the decree-holder for the subsistence of thejudgment-debtor in prison shall be deemed to be costs in the suit:Provided that the judgment-debtor shall not be detained in prison orarrested on account of any sum so disbursed.[Order 22, rule 34.]Proceedings onappearance ofjudgment-debtor inobedience to noticeor after arrest.34. (1) Where a judgment-debtor appears before the court in obedience toa notice issued under rule 31, or is brought before the court after being arrestedin execution of a decree for the payment of money, and it appears to the courtpay the amount of the decree, or, if that amount is payable by instalments, theamount of any instalment thereof, the court may, upon such terms as it thinks

Rev. 2010] Civil Procedure CAP. 21 127directing his release, as the case may be.[Subsidiary](2) Before making an order for the committal of the judgment- debtor(a) that the judgment-debtor, with the object or effect of obstructingor delaying the execution of the decree—(i) is likely to abscond or leave the local limits of the jurisdictionof the court; or(ii) has, after the institution of the suit in which the decree waspassed, dishonestly transferred, concealed or removed anypart of his property, or committed any other act of bad faith inrelation to his property; or(b) that the judgment-debtor has, or has had since the date of the decree,the means to pay the amount of the decree, or some substantial partthereof, and refuses or neglects, or has refused or neglected, to paythe same, but in calculating such means there shall be left out ofaccount any property which is exempt from attachment in executionof the decree; or(c) that the decree is for a sum for which the judgment-debtor was(3) While any of the matters mentioned in subrule (2) are beingconsidered, the court may, in its discretion, order the judgment-debtor to berelease him on his furnishing security, to the satisfaction of the court, for hisappearance when required by the court.(4) A judgment-debtor released under this rule may be rearrested.(5) Where the court does not make an order under subrule (1), it shallcause the judgment-debtor to be arrested, if he has not already been arrested,and, subject to the provisions of this Act, commit him to prison.35. Where a decree is for the payment of money, the decree- holder mayapply to the court for an order that—(a) the judgment-debtor;[Order 2, rule 35.]Examination ofjudgment-debtor asto his property.(b(c) any other person,be orally examined as to whether any or what debts are owing to thejudgment-debtor, and whether the judgment-debtor has any and what propertyor means of satisfying the decree, and the court may make an order for the

128[Subsidiary][Order 22, rule 36.]Attachment in caseof decree for rent,other matter.[Order 22, rule 37.]Attachment ofmovable propertyother thanagricultural produce,in possession ofjudgment-debtor.[Order 22, rule 38.]Attachment ofagricultural produce.CAP. 21 Civil Procedure [Rev. 2010and for the production of any books or documents.36. Where a decree directs an inquiry as to rent or mesneother matter, the property of the judgment-debtor may, before the amount duefrom him has been ascertained, be attached, as in the case of an ordinary decreefor the payment of money.37. Where the property to be attached is movable property, other thanagricultural produce, in the possession of the judgment-debtor, the attachmentin his own custody, or in the custody of one of his subordinates, and shall beresponsible for the due custody thereof:Provided that, when the property seized is subject to speedy and naturaldecay, or when the expense of keeping it in custody is likely to exceed its value,seized is livestock the court may make such arrangement for the custody and38. Where the property to be attached is agricultural produce, the(a) where such produce is a growing crop, on the land on which suchcrop is growing; or(b) where such produce has been cut or gathered, on the barn, stock,or place in which it is deposited,and another copy on the outer door or on some other conspicuous part of thehouse in which the judgment-debtor ordinarily resides, or, with the leave ofthe court, on the outer door or on some other conspicuous part of the housein which he carries on business or personally works for gain, or in which heis known to have last resided or carried on business or personally workedfor gain; and the produce shall thereupon be deemed to have passed into thepossession of the court.[Order 22, rule 39.]Provisions as toagricultural produceunder attachment.39. (1) Where agricultural produce is attached, the court shall make suchpurpose of enabling the court to make such arrangements, every applicationfor the attachment of a growing crop shall specify the time at which it is likely(2) Subject to such conditions as may be imposed by the court inthis behalf, either in the order of attachment or in any subsequent order, thejudgment-debtor may tend, cut, gather and store the produce and do any otheract necessary for maturing or preserving it; and if the judgment-debtor failsto do all or any of such acts the decree-holder may, with the permission of thecourt and subject to the like conditions, do all or any of them either by himselfor by any person appointed by him in this behalf, and the costs incurred by thedecree-holder shall be recoverable from the judgment-debtor as if they were

Rev. 2010] Civil Procedure CAP. 21 129included in, or formed part of, the decree.[Subsidiary](3) Agricultural produce attached as a growing crop shall not be deemed tohave ceased to be under attachment or to require re- attachment merely becauseit has been severed from the soil.(4) Where an order for the attachment of a growing crop has been madeand may in its discretion, make a further order prohibiting the removal of thecrop pending the execution of the order of attachment.40. (1) In the case of—(a) a share in the capital of a corporation; or(b) other movable property not in the possession of the judgmentdebtor,[Order 22, rule 40.]Attachment of shareand other propertynot in possession ofjudgment-debtor.attachment shall be made by a written order prohibiting—(i) in the case of the share, the person in whose name the sharemay be standing from transferring the same or receiving anydividend thereon; or(ii) in the case of the other movable property except as aforesaid,the person in possession of the same from giving it over to thejudgment-debtor.precincts of the court, and another copy shall be sent, in the case of the share,property (except as aforesaid) to the person in possession of the same.(3) If the person in possession of the movable property does not layclaim to such property under rule 51, the court may make an order for actualseizure of the property as if it were in the possession of the judgment-debtor.41. Where the property to be attached consists of the share or interestof the judgment-debtor in movable property belonging to him and another asco-owners, the attachment shall be made by a notice to the judgment-debtorprohibiting him from transferring the share or interest or charging it in any way.42. (1) Where the property to be attached is any salary or periodicalallowance payable to the judgment-debtor by any person, the court, whetherthe judgment-debtor or the person by whom such salary or allowance is payableis or is not within the local limits of the court’s jurisdiction, may order that theamount shall, subject to the provisions of section 44 of the Act, be withheldfrom such salary or allowance either in one payment or by monthly instalmentsas the court may direct; and upon notice of the order to the person by whom[Order 22, rule 41.]Attachment of sharein movables.[Order 22, rule 42.]Attachment of salaryor allowance.

130[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010such salary or allowance is payable such person shall withhold and remit to thecourt or, if the court by the order so directs, to the advocate for the judgmentcreditor,the amount due under the order or each or any monthly instalment,as the case may be.(2) Where the attachable proportion of such salary or allowance is alreadyof attachment the person by whom such salary or allowance is payable shallretain every subsequent order and, upon satisfaction of such previous andor allowance in accordance with the terms of the order next received by him.(3) Subject to subrule (2), every order made under this rule shall, withoutfurther notice or other process, be binding on the person by whom such salaryallowance payable by such person; and the person by whom such salary orallowance is payable shall be liable for any sum paid in contravention of this rule.[Order 22, rule 43.]Attachment ofpartnership property.Cap. 29.43. (1) Save as otherwise provided by this rule, property belonging to apartnership shall not be attached or sold in execution of a decree other than a(2) The court may, on the application of the holder of a decree against apartner, make an order charging the interest of such partner in the partnershipby the same or a subsequent order, appoint a receiver of the share of such partnerwhich may be coming to him in respect of the partnership, and direct accountsand inquiries and make an order for the sale of such interest or other orders asmight have been directed or made if a charge had been made in favour of thedecree-holder by such partner, or as the circumstances of the case may require.Applications under this subrule shall be in accordance with the provisions ofsection 27 of the Partnership Act.(3) The other partner or partners shall be at liberty at any time to redeemthe interest charged, or, in the case of a sale being directed, to purchase the same.(4) Every application for an order under subrule (2) shall be served on(5) Every application made by any partner of the judgment- debtor undersubrule (3) shall be served on the decree-holder and on the judgment-debtor,and on such of the other partners as do not join in the application and as are(6) Service under subrule (4) or (5) shall be deemed to be service on allthe partners, and all orders made on such applications shall be similarly served.[Order 22, rule 44.]Execution of decreebe granted—

Rev. 2010] Civil Procedure CAP. 21 131(a) against any property of the partnership;[Subsidiary](b) against any person who has appeared in his own name under rules6 or 7 of Order 30 or who has admitted on the pleadings, that heis, or who has been adjudged to be, a partner; or(c) against any person other than an infant who has been individuallyserved as a partner with the summons and has failed to appear.(2) Where the decree-holder claims to be entitled to cause the decreeto be executed against any person other than such a person as is referred to insubrules (1) (b) and (1) (ccourt which passed the decree for leave, and, where the liability is not disputed,such court may grant such leave, or, where such liability is disputed, may orderthat the liability of such person be tried and determined in any manner in whichany issue in a suit may be tried and determined.(3) Where the liability of any person has been tried and determined undersubrule (2), the order made thereon shall have the same force and be subject tothe same conditions as to appeal or otherwise as if it were a decree.shall not release, render liable, or otherwise affect any partner therein unlesshe has been served with a summons to appear.45. Where the property to be attached is a negotiable instrument notbe made by actual seizure, and the instrument shall be brought into court andheld subject to further orders of the court.[Order 22, rule 45.]Attachmentof negotiableinstrument.46. Where the property to be attached is in the custody of any court, theattachment 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 tothe further orders of the court from which the notice is issued:[Order 22, rule 46.]Attachment ofproperty in custodyof court.Provided that, where such property is in the custody of a court, anyquestion of title or priority arising between the decree-holder and any otherperson, not being the judgment-debtor, claiming to be interested in such propertyby virtue of any assignment or otherwise, shall be determined by such court.47. (1) Where the property to be attached is a decree, either for thepayment of money or for sale in enforcement of a mortgage or charge, theattachment shall be made—[Order 22, rule 47.]Attachment ofdecree.(a) if the decrees were passed by the same court, then by order ofsuch court; and(b) if the decree sought to be attached was passed by another court,then by the issue to such other court of a notice by the court whichpassed the decree sought to be executed, requesting such other courtto stay the execution of its decree unless and until—

132CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](i) the court which passed the decree sought to be executed cancels thenotice; or(ii) the holder of the decree sought to be executed or his judgment-debtorapplies to the court receiving such notice to execute its own decree.(2) Where a court makes an order under subrule (1) (a), or receives anapplication under subrule (1) (b) (ii), it shall, on the application of the creditorwho has attached the decree of his judgment- debtor proceed to execute theattached decree and apply the net proceeds in satisfaction of the decree soughtto be executed.(3) The holder of a decree sought to be executed by the attachment ofrepresentative of the holder of the attached decree and to be entitled to executesuch attached decree in any manner lawful for the holder thereof.(4) Where the property to be attached in the execution of a decree is adecree other than a decree of the nature referred to in subrule (1), the attachmentshall be made by a notice, by the court which passed the decree sought to beexecuted to the holder of the decree sought to be attached, prohibiting him fromtransferring or charging the same in any way; and, where such decree has beenpassed by any other court, also by sending to such other court a notice to abstainfrom executing the decree sought to be attached until such notice is cancelledby the court from which it was sent.(5) The holder of a decree attached under this rule shall give to the courtexecuting the decree such information and aid as may be required.(6) On the application of the holder of a decree sought to be executedby the attachment of another decree, the court making an order of attachmentunder this rule shall give notice of such order to the judgment-debtor bound bythe decree attached; and no payment or adjustment of the attached decree madeby the judgment-debtor in contravention of such order after receipt of noticethereof, either through the court or otherwise, shall be recognised by any courtso long as the attachment remains in force.[Order 22, rule 48.]Attachment ofimmovable property.48. (1) Where the property to be attached is immovable, the attachmentshall be made by an order prohibiting the judgment-debtor from transferringfrom such purported transfer or charge, and the attachment shall be completeand effective upon registration of a copy of the prohibitory order or inhibitionagainst the title to the property.property.[Order 22, rule 49.]Removal ofattachment after49. Where—(a) the amount decreed with costs and all charges and expenses

Rev. 2010] Civil Procedure CAP. 21 133resulting from the attachment of any property are paid into court,or satisfaction of the decree is otherwise made through the court[Subsidiary]satisfaction of decree.(b) the decree is set aside or reversed,the attachment shall be deemed to be withdrawn, and, in the case of immovableproperty the withdrawal shall, if the judgment-debtor so desires, be proclaimedprescribed by rule 48 of this Order.50. Where any property has been attached in execution of a decree, butby reason of the decree-holder’s default the court is unable to proceed furtherwith the application for execution, it shall either dismiss the application or fordismissal of such application the attachment shall cease.[Order 22, rule 50.]Determination ofattachment.51. (1) Any person claiming to be entitled to or to have a legal or equitableinterest in the whole of or part of any property attached in execution of a decreemay at any time prior to payment out of the proceeds of sale of such propertygive notice in writing to the court and to all the parties and to the decree-holderof his objection to the attachment of such property.[Order 22, rule 51.]Objection toattachment.(2) Such notice shall be accompanied by an application supported byor person makes to the whole or portion of the property attached.(3) Such notice of objection and application shall be served within seven52. Upon receipt of a valid notice and application as provided under rule51, the court may order a stay of the execution for not more than fourteen daysand shall call upon the attaching creditor by notice in writing to intimate to thecourt and to all the parties in writing within seven days whether he proposesto proceed with the attachment and execution thereunder wholly or in part.53. Should the attaching creditor in pursuance of a notice issued under rule52 either fail to reply to the court and the objector within the period prescribedby the notice or intimate in writing to the court and the objector within theperiod prescribed by such notice that he does not propose to proceed with theexecution of the attachment of the whole or of a portion of the property subjectto the attachment, the court shall make an order raising the attachment as to thewhole or a portion of the property subject to the attachment in accordance withthe intimation received from the attaching creditor and shall make such order[Order 22, rule 52.]Stay of execution.[Order 22, rule 53.]Raising ofattachment.54. If the attaching creditor proposes to proceed with the attachmentand the court shall proceed to hear the application expeditiously.[Order 22, rule 54.]Notice of intention toproceed.55. Any court executing a decree may order that any property attached by[Order 22, rule 55.]

134[Subsidiary]Power to orderproperty attached tobe sold and proceedsto be paid to personentitled.[Order 22, rule 56.]Sale, by whomconducted and howmade.CAP. 21 Civil Procedure [Rev. 2010it and liable to sale, or such portion thereof as may seem necessary to satisfy thethereof, shall be paid to the party entitled under the decree to receive the same.56. (1) Save as otherwise prescribed, every sale in execution of a decreecourt may appoint in this behalf, and shall be made by public auction in themanner prescribed.(2) Any court executing a decree may make orders relating to the paymentof the charges for attaching the property or conducting the sale of the propertyand for the enforcement of such payment.[Order 22, rule 57.]by public auction.57. (1) Where any property is ordered to be sold by public auction inexecution of a decree, the court shall cause public notice and advertisement ofthe intended sale to be given in such manner as the court may direct.(2) Such public notice shall be drawn up after notice to the decree-holderand the judgment-debtor, and shall state the time and place of sale, and specifyas fairly and accurately as possible—(a) the property to be sold;(b) any encumbrance to which the property is liable;(c) the amount for the recovery of which the sale is ordered; and(d) every other thing which the court considers material for a purchaserto know in order to judge the nature and value of the property:Provided that notice to the judgment-debtor may be dispensed with, orsubstituted service thereof ordered, for reasons to be recorded by the court.(3) Every application for an order for sale under this rule shall beaccompanied by a statement signed in the manner hereinbefore prescribed forthe signing of pleadings and containing, so far as they are known to or can beascertained by the person so signing, the matters required by subrule (2) to bepublic notice, the court may summon any person whom it thinks necessary tosummon and may examine him in respect to any such matters and require himto produce any document in his possession or power relating thereto.(5) Directions shall be given as to the mode and expense of advertisingthe sale, which expense shall be costs of the sale.(6) The advertisement shall be in Form No. 15 of Appendix A.

Rev. 2010] Civil Procedure CAP. 21 13558. Save in the case of property of the kind described in the proviso torule 37, no sale hereunder shall without the consent in writing of the judgmentdebtor,take place until after the expiration of at least thirty days in the case ofin the precincts of the court of the judge ordering the sale.59. (1) The court may, in its discretion, adjourn any sale hereunder todiscretion adjourn the sale, recording his reasons for such adjournment:Provided that where the sale is made in, or within the precincts of thecourt, no such adjournment shall be made without leave of the court.(2) Where a sale is adjourned under subrule (1) for a longer period thanseven days, fresh public notice shall be given, unless the judgment-debtorconsents to waive it.(3) Every sale shall be stopped if, before the lot is knocked down, the debtthe sale, or proof is given to his satisfaction that the amount of such debt andcosts has been paid into the court which ordered the sale.of the purchaser’s default, and all expenses attending such re- sale, shall bethe instance of either the decree-holder or the judgment-debtor, be recoverablefrom the defaulting purchaser under the provisions relating to the execution ofa decree for the payment of money.[Subsidiary][Order 22, rule 58.]Time of sale.[Order 22, rule 59.]Adjournment orstoppage of sale.[Order 22, rule 60.]Defaulting purchaseranswerable for losson re-sale.61. (1) No holder of a decree in execution of which property is sold shall,without the express permission of the court, bid for or purchase the property.(2) Where a decree-holder purchases with such permission, the purchasemoney and the amount due on the decree may, subject to section 50 of the Act,be set off against one another, and the court executing the decree shall enter upsatisfaction of the decree in whole or in part accordingly.[Order 22, rule 61.]Decree-holder notto bid for or buyproperty withoutpermission.(3) Where a decree-holder purchases, by himself or through anotherof the judgment-debtor or any other person whose interests are affected by thesale, by order set aside the sale; and the costs of such application and order,attending it, shall be paid by the decree-holder.with any sale shall, either directly or indirectly bid for, acquire or attempt toacquire, any interest in the property sold.63. Where the property to be sold is a negotiable instrument or a share in[Order 22, rule 62.]Restriction onbidding or purchase[Order 22, rule 63.]

136[Subsidiary]Negotiableinstrumentsand shares incorporations.[Order 22, rule 64.]Sales by publicauction.CAP. 21 Civil Procedure [Rev. 2010a 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. (1) Where movable property is sold by public auction, the price ofperson holding the sale directs, and in default of payment the property shallforthwith be re-sold.the sale shall grant a receipt for the same, and the sale shall become absolute.(3) Where the movable property to be sold is a share in goods belongingto the judgment-debtor and a co-owner, and two or more persons, of whom oneis such co-owner, respectively bid the same sum for such property or for anylot, the bidding shall be deemed to be the bidding of the co-owner.[Order 22, rule 65.]Irregularity not tovitiate sale, but anyperson injured maysue.[Order 22, rule 66.]Delivery of movableproperty, debts andshares.65. No irregularity in publishing or conducting the sale of movableproperty shall vitiate the sale; but any person sustaining any injury by reasonof such irregularity at the hand of any other person may institute a suit againsthim for compensation, or (if such person is the purchaser) for the recovery of66. (1) Where the property sold is movable property of which actualseizure has been made, it shall be delivered to the purchaser.(2) Where the property sold is movable property in the possession of someperson other than the judgment-debtor, the delivery thereof to the purchaser shallbe made by giving notice to the person in possession ordering him to deliverpossession of the property to the purchaser.(3) Where the property sold is a share in a company, the delivery thereofshall be made by a written order of the court prohibiting the person in whosename the share may be standing from making any transfer of the share to anyperson except the purchaser, or receiving payment of any dividend or interestfrom permitting any such transfer or making any such payment to any personexcept the purchaser.(4) Where the execution of a document or the endorsement of the partyin whose name a negotiable instrument or share in a company is standing isrequired to transfer such negotiable instrument or share, the judge or registrarmay execute such document or make such endorsement as may be necessary,and such execution or endorsement shall have the same effect as an executionor endorsement by that party.(5) An execution or endorsement under subrule (4) may adopt thefollowing forms of words—A.B. by C.D. judge of the court of (or as the case may be) in suit No. of

Rev. 2010] Civil Procedure CAP. 21 13720 by E.F. against A.B.[Subsidiary](6) Until the transfer of such negotiable instrument or share, the courtmay appoint in writing some person to receive any interest or dividend duethereon and to sign a receipt therefor, and any receipt so signed shall be validand effective for all purposes.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 hemay direct, and such property shall vest accordingly.68. Sale of immovable property in execution of decrees may be orderedby any court.[Order 22, rule 67.]Vesting order in caseof other property.[Order 22, rule 68.]Sale of immovableproperty.69. (1) On every sale of immovable property the person declared to bethe purchaser shall pay immediately after such declaration a deposit of twenty-person conducting the sale, and, in default of such deposit, the property shallforthwith be re-sold.(2) Where the decree-holder is the purchaser, and is entitled to set off thepurchase-money under rule 61, the court may dispense with the requirementsof this rule.[Order 22, rule 69.]Deposit by purchaserand re-sale ondefault.70. (1) Except as provided by rule 61, the full amount of the purchasemoneyshall be paid upon the delivery to the purchaser of an executedconveyance or transfer of the property.[Order 22, rule 70.]Payment of purchasemoney.(2) The purchase money shall be paid into court unless the court otherwiseorders.71. In default of payment within the period under rule 70, the depositand shall if forfeited be allocated towards satisfaction of the decree, and theproperty shall be re-sold, and the defaulting purchaser shall forfeit all claim tothe property or to any part of the sum for which it may subsequently be sold.72. Every re-sale of immovable property, in default of payment of thepurchase-money within the period allowed for such payment, shall be madehereinbefore prescribed for the sale.[Order 22, rule 71.]Procedure in defaultof payment.[Order 22, rule 72.]re-sale.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 samesum for such property or for any lot, the bid shall be deemed to be the bid ofthe co-sharer.74. (1) Where immovable property has been sold in execution of a decree,any person, either owning such property or holding an interest therein by virtueof a title acquired before such sale, may apply to have the sale set aside on his[Order 22, rule 73.]Bid of co-sharer tohave preference.[Order 22, rule 74.]Application to setaside sale on deposit.

138[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010depositing in court—(a) for payment to the purchaser, a sum equal to ten percent of thepurchase-money; and(bordered, less any amount which may since the date of such public(2) Where a person applies under rule 75 to set aside the sale of hisimmovable property, he shall not, unless he withdraws his application, beentitled to make or prosecute an application under this rule.(3) Nothing in this rule shall relieve the judgment-debtor from anyliability he may be under in respect of costs and interest not covered by the[Order 22, rule 75.]Application to setaside sale on groundof irregularity orfraud.[Order 22, rule 76.]Application bypurchaser to setaside sale on groundof judgment-debtorhaving no saleableinterest.[Order 22, rule 77.]Sale, when to becomeabsolute or be setaside.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, mayapply to the court to set aside the sale on the ground of a material irregularityor fraud in publishing or conducting it:Provided that no sale shall be set aside on the ground of irregularity orsustained substantial injury by reason of such irregularity or fraud.76. The purchaser at any such sale in execution of a decree may applyto the court to set aside the sale on the ground that the judgment- debtor hadno saleable interest in the property sold.77. (1) Where no application is made under rule 74, rule 75 or rule 76, orwhere such application is made and disallowed, the court shall make an orderthe interest of the judgment-debtor in the property sold is concerned.(2) Where such application is made and allowed and where, in the caseof an application under rule 74, the deposit required by that rule is made withinthirty days from the date of sale, the court shall make an order setting asidethe sale:Provided that no order shall be made unless notice of the application hasbeen given to all persons affected thereby.(3) No suit to set aside an order made under this rule shall be broughtby any person against whom such order is made.

Rev. 2010] Civil Procedure CAP. 21 13978. Where a sale of immovable property is set aside under rule 75, thepurchaser 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 whomit has been paid.[Subsidiary][Order 22, rule 78.]Return of purchasemoneyin certaincases.79. Where a sale of immovable property has become absolute, the courtbear the date and the day on which the sale became absolute.80. Where the immovable property sold is in the occupancy of thejudgment-debtor, or of some person on his behalf, or of some person claimingunder a title created by the judgment-debtor subsequently to the attachment ofthe court shall, on the application of the purchaser, order delivery to be made byputting such purchaser, or any person whom he may appoint to receive deliveryon his behalf, in possession of the property, and, if need be, by removing anyperson who refuses to vacate the same.81.Where the property sold is in the occupancy of a tenant or other personunder rule 79, the court shall, on the application of the purchaser, order deliveryon the property and notifying the occupant in such manner as the court may directthat the interest of the judgment-debtor has been transferred to the purchaser.[Order 22, rule 79.]purchaser.[Order 22, rule 80.]Delivery of propertyin occupancy ofjudgment-debtor.[Order 22, rule 81.]Delivery of propertyin occupancy oftenant.82. (1) Where the holder of a decree for the possession of immovableproperty or the purchaser of any such property sold in execution of a decree isresisted or obstructed by any person in obtaining possession of the property,he may make an application to the court complaining of such resistance orobstruction.[Order 22, rule 82.]Resistance orobstruction topossession ofimmovable property.the party against whom the application is made to appear and answer the same.occasioned without any just cause by the judgment-debtor, or by some otherperson at his instigation, it shall direct that the applicant be put into possessionof the property, and, where the applicant is still resisted or obstructed inobtaining possession, the court may also, at the instance of the applicant, orderthe judgment-debtor, or any person acting at his instigation, to be detained inprison for a period not exceeding thirty days.occasioned by any person (other than the judgment-debtor) claiming in goodfaith to be in possession of the property on his own account or on account ofsome person other than the judgment-debtor, the court shall make such ordersas it may deem just.85. Nothing in rule 84 shall apply to resistance or obstruction in executionof a decree for the possession of immovable property by a person to whom the[Order 22, rule 83.]Resistance orobstruction byjudgment-debtor.[Order 22, rule84.] Resistance orobstruction by bona claimant.[Order 22, rule 85.]Rules not applicable

140[Subsidiary]to transfereependente lite.[Order 22, rule 86.]Order conclusivesubject to regularsuit.CAP. 21 Civil Procedure [Rev. 2010judgment-debtor has transferred the property after the institution of the suit inwhich the decree was passed or to the dispossession of any such person.86. Any party not being a judgment-debtor against whom an order ismade under rule 83 or rule 84, may institute a suit to establish the right whichhe claims to the present possession of the property; but, subject to the result ofsuch suit, if any, the order shall be conclusive.ORDER 23ATTACHMENT OF DEBTS[Order 23, rule 1.]Order for theattachment of debts.1. (1) A court may, upon the ex parte application of a decree- holder, andeither before or after an oral examination of the judgment- debtor, and uponis indebted to the judgment-debtor and is within the jurisdiction, order that alldebts (other than the salary or allowance coming within the provisions of Orderto the judgment-debtor shall be attached to answer the decree together with thecosts of the garnishee proceedings; and by the same or any subsequent order itmay be ordered that the garnishee shall appear before the court to show causewhy he should not pay to the decree- holder the debt due from him to thetogether with the costs aforesaid.(2) At least seven days before the day of hearing the order nisi shall beserved on the garnishee, and, unless otherwise ordered, on the judgment-debtor.(3) Service on the judgment-debtor may be made either at the addressfor service if the judgment-debtor has appeared in the suit and given an addressfor service, or on his advocate if he has appeared by advocate, or if there hasbeen no appearance then by leaving the order at his usual residence or place ofbusiness or in such manner as the court may direct.(4) An order nisi shall be in Form No. 16 of Appendix A.[Order 23, rule 2.]Attachment ofdeposits.shall for the purposes of this Order be a sum due or accruing and shall beattachable accordingly notwithstanding that any of the following requirementsis applicable to the account and has not been complied with-(a) that notice is required before any money is withdrawn;(b) that a personal application must be made before any money iswithdrawn;(c) that a deposit book must be produced before any money iswithdrawn; or

Rev. 2010] Civil Procedure CAP. 21 141(d) that a receipt for money deposited in the account must be producedbefore any money is withdrawn.3. Service of an order that debts due to a judgment-debtor liable under adecree shall be attached, or notice thereof to the garnishee in such manner, asthe court may direct, shall bind such debts in his hands.[Subsidiary][Order 23, rule 3.]Effect of garnisheeorder.4. If the garnishee does not dispute the debt due or claimed to be duefrom him to the judgment-debtor, or, if he does not appear upon the day ofhearing named in an order nisi, then the court may order execution against theperson and goods of the garnishee to levy the amount due from him, or so muchgarnishee proceedings; and the order absolute shall be in Form No. 17 or 18 ofAppendix A, as the case may require.[Order 23, rule 4.]Execution againstgarnishee.5. If the garnishee disputes his liability, the court, instead of making anorder that execution be levied, may order that any issue or question necessaryfor determining his indebtedness be tried and determined in the manner in whichan issue or question in a suit is tried or determined.6. Whenever in any proceedings to obtain an attachment of debts it issuggested by the garnishee that the debt sought to be attached belongs to somethird person, or that any third person has a lien or charge upon it, the courtmay order such third person to appear, and state the nature and particulars ofhis claim upon such debt.7. After hearing the allegations of any third person under such order, asin rule 6 mentioned, or of any other person who by the same or any subsequentorder the court may order to appear, or in case of such third person not appearingwhen ordered, the court may order execution for levying the amount due fromthe garnishee, together with the costs of the garnishee proceedings, or orderany issue or question to be tried or determined according to the preceding rulesof this Order, and may bar the claim of such third person or make such other8. Payment made by or execution levied upon the garnishee under anysuch proceeding as aforesaid shall be a valid discharge to him as against thejudgment-debtor to the amount paid or levied, although such proceeding ororder may be set aside or the decree reversed.in which the decree sought to be enforced was obtained.10. The costs of any application for an attachment of debts and of anyproceedings arising from or incidental to such application, shall be in thediscretion of the court, and the costs of the decree-holder shall, unless otherwisedirected, be retained out of the money recovered by him under the garnisheeorder, and in priority to the amount due under the decree.[Order 23, rule 5.]Trial of liability ofgarnishee.[Order 23, rule 6.]Claim of thirdperson.[Order 23, rule 7.]Trial of claim of thirdperson.[Order 23, rule 8.]Payment by orexecution on thegarnishee is a validdischarge.[Order 23, rule 9.]Record ofproceedings.[Order 23, rule 10.]Costs of proceedings.

142CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]ORDER 24DEATH AND BANKRUPTCY OF PARTIES[Order 24, rule 1.]No abatement byparty’s death if rightsurvives.[Order 24, rule 2.]Procedure where oneof several plaintiffsor defendants diesand right to suesurvives.[Order 24, rule 3].]Procedure in caseof death of one ofseveral plaintiffs orof sole plaintiff.1. The death of a plaintiff or defendant shall not cause the suit to abateif the cause of action survives or continues.2. Where there are more plaintiffs or defendants than one, and any one ofthem dies, and where the cause of action survives or continues to the survivingplaintiff or plaintiffs alone or against the surviving defendant or defendantsalone, 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. (1) Where one of two or more plaintiffs dies and the cause of actiondoes not survive or continue to the surviving plaintiff or plaintiffs alone, or asole plaintiff or sole surviving plaintiff dies and the cause of action survives orcontinues, the court, on an application made in that behalf, shall cause the legalrepresentative of the deceased plaintiff to be made a party and shall proceedwith the suit.(2) Where within one year no application is made under subrule (1),the suit shall abate so far as the deceased plaintiff is concerned, and, on theapplication of the defendant, the court may award to him the costs which hemay have incurred in defending the suit to be recovered from the estate of thedeceased plaintiff:Provided the court may, for good reason on application, extend the time.[Order 24, rule 4.]Procedure in caseof death of one ofseveral defendants orof sole defendant.4. (1) Where one of two or more defendants dies and the cause of actiondoes not survive or continue against the surviving defendant or defendantsalone, or a sole defendant or sole surviving defendant dies and the cause ofaction survives or continues, the court, on an application made in that behalf,shall cause the legal representative of the deceased defendant to be made a partyand shall proceed with the suit.(2) Any person so made a party may make any defence appropriate tohis character as legal representative of the deceased defendant.(3) Where within one year no application is made under subrule (1), thesuit shall abate as against the deceased defendant.[Order 24, rule 5.]Determination ofquestion as to legalrepresentative.[Order 24, rule 6.]5. Where a question arises as to whether any person is or is not the legalrepresentative of a deceased plaintiff, or a deceased defendant, such questionshall be determined by the court.

Rev. 2010] Civil Procedure CAP. 21 143(unless for any special reason the court otherwise directs) to give security forthe costs thereof within such time as the court may direct.the suit, and to give such security within the time so ordered, the defendant mayapply for the dismissal of the suit on the ground of the plaintiff’s bankruptcy, andthe court may make an order dismissing the suit and awarding to the defendantthe costs which he has incurred in defending the same to be proved as a debtagainst the plaintiff’s estate.7. (1) Where a suit abates or is dismissed under this Order, no fresh suitshall be brought on the same cause of action.(2) The plaintiff or the person claiming to be the legal representative ofplaintiff may apply for an order to revive a suit which has abated or to set asidecause from continuing the suit, the court shall revive the suit or set aside such[Subsidiary]When plaintiff’sbankruptcy bars suit.[Order 24, rule 7.]Effect of abatementor dismissal.8. (1) In other cases of an assignment, creation, or devolution of anyinterest during the pendency of a suit, the suit may, by leave of the court, becontinued by or against the person to or upon whom such interest has comeor devolved.[Order 24, rule 8.]Procedure in case ofassignment before(2) The attachment of a decree pending an appeal therefrom shall bedeemed to be an interest entitling the person who procured such attachment to9. In the application of this Order to appeals, so far as may be, the[Order 24, rule 9.]Application of Orderto appeals.10. Nothing in rules 3, 4 and7 shall apply to proceedings in executionof a decree or order.ORDER 25[Order 24, rule 10.]Application ofOrder to executionproceedings.WITHDRAWAL, DISCONTINUANCE AND ADJUSTMENT OF SUITS1. At any time before the setting down of the suit for hearing the plaintiffmay by notice in writing, which shall be served on all parties, wholly discontinuehis suit against all or any of the defendants or may withdraw any part of hisclaim, and such discontinuance or withdrawal shall not be a defence to anysubsequent action.[Order 25, rule 1.]Withdrawal byplaintiff.2. (1) Where a suit has been set down for hearing it may be discontinued,[Order 25, rule 2.]Discontinuance.

144[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010by all the parties.(2) Where a suit has been set down for hearing the court may grant theplaintiff leave to discontinue his suit or to withdraw any part of his claim upon(3) The provisions of this rule and rule 1 shall apply to counterclaims.[Order 25, rule 3.]Costs.[Order 25, rule 4.]Stay of subsequentsuit.[Order 25, rule 5.]Compromise of asuit.3. Upon request in writing by any defendant the registrar shall signjudgment for the costs of a suit which has been wholly discontinued, and anydefendant may apply at the hearing for the costs of any part of the claim againsthim which has been withdrawn.4. If any subsequent suit shall be brought before payment of the costs ofa 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 havebeen paid.5. (1) Where it is proved to the satisfaction of the court, and the court afterhearing the parties directs, that a suit has been adjusted wholly or in part by anyin respect of the whole or any part of the subject-matter of the suit, the courtshall, on the application of any party, order that such agreement, compromiseor satisfaction be recorded and enter judgment in accordance therewith.(2) The Court, on the application of any party, may make any furtherorder necessary for the implementation and execution of the terms of the decree.ORDER 26SECURITY FOR COSTS[Order 26, rule 1.]Security for costs.[Order 26, rule 2.]Application beforedefence.[Order 26, rule 3.]Where two or moredefendants.[Order 26, rule 4.]Claims by nonresidentplaintiff.1. In any suit the court may order that security for the whole or anypart of the costs of any defendant or third or subsequent party be given by anyother party.the defence together with a statement of the deponent’s belief in the truth ofthe facts alleged.3. Where it appears to the court that the substantial issue is which oftwo or more defendants is liable or what proportion of liability two or moredefendants should bear no order for security for costs may be made.founded on a bill of exchange or other negotiable instrument or on a judgmentor order of a foreign court, any order for security for costs shall be in thediscretion of the court.

Rev. 2010] Civil Procedure CAP. 21 1455. (1) If security for costs is not given within the time ordered and if theplaintiff is not permitted to withdraw the suit, the court shall, upon application,dismiss the suit.[Subsidiary][Order 26, rule 5.]Effect of failure togive security.(2) If a suit is dismissed under subrule (1) and the plaintiff proves thatthe court may set aside the order dismissing the suit and extend the time forgiving the required security.6. (1) Where security by payment has been ordered, the party orderedjoint names of himself and the defendant or in the names of their respectiveadvocates when advocates are acting.[Order 26, rule 6.]Investment ofsecurity.ORDER 27PAYMENT INTO COURT AND TENDER1. (1) In any suit for a debt or damages any defendant may at any timeafter appearance upon notice to the plaintiff pay into court a sum of money insatisfaction of the claim or (where several causes of action are joined in onesuit) in satisfaction of one or more of the causes of action.[Order 27, rule 1.]Payment into court.(2) Where money is paid into court in satisfaction of one or more ofseveral causes of action the notice shall specify the causes of action in respectof which payment is made and the sum paid in respect of each such cause ofaction unless the registrar or, in a subordinate court, presiding magistrate,otherwise orders.or withdrawn or delivered in an amended form by leave of the registrar or, in asubordinate court, the presiding magistrate, upon such terms as are just exceptthat the defendant may, without leave deliver a notice increasing the amountof any sum paid into court, which shall be in Form No. 20 of Appendix A.2. (1) Where money is paid into court under rule 1 the plaintiff may,within fourteen days of the receipt of notice thereof, or where more than onepayment has been made, within fourteen days of the receipt of notice of the lastin satisfaction of different causes of action by giving notice to the defendantin Form No. 21 of Appendix A and thereupon he shall be entitled to receivepayment accordingly.(2) Payment shall be made to the plaintiff or to his advocate, andthereupon proceedings in the suit or in respect of the cause or causes of actionto which the payment relates shall be stayed.(3) The registrar shall, if so requested in writing not less than fourteendays after delivery to the defendant of the notice in Form No. 21 of AppendixA, give judgment for the plaintiff’s costs incurred up to the time of payment[Order 27, rule 2.]Acceptance ofpayment.

146[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010into court unless the defendant has applied by summons for an order disallowingthe plaintiff’s costs or any part thereof.(4) A plaintiff in an action for libel or slander who has accepted a paymentinto court may apply by summons for leave to make in open court a statementthe terms of which shall have been approved by the court.[Order 27, rule 3.]Money remaining incourt.[Order 27, rule 4.]Payment into whereseveral defendants.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 inpursuance of an order of the court, which may be made at any time before, at orafter the hearing of the suit; and where such an order is made the money shallnot be paid out except in satisfaction of the claim or cause or causes of actionin respect of which it was paid in.4. (1) Money may be paid into court under rule 1 by any of severaldefendants sued jointly or in the alternative upon notice to the other defendants.(2) If within fourteen days after receipt of notice of payment into courtthe plaintiff elects to accept the sum or sums paid into court, he shall give noticein Form No. 21 of Appendix A to each defendant.(3) Upon acceptance under subrule (2) all further proceedings in thesuit or in respect of the cause of action to which the payment relates, as thecase may be, shall be stayed, and the money shall not be paid out except inpursuance of an order of the court dealing with the whole costs of the suit orcause of action, as the case may be.(4) If in an action for libel or slander against several defendants suedjointly any defendant pays money into court, the plaintiff may within fourteendays elect to accept the payment in satisfaction of his claim against the defendantmaking the payment and shall give notice to all defendants in Form No. 21 ofAppendix A; and the plaintiff may proceed to judgment under rule 2 (3) againstthe defendant who has made such payment, and the action shall thereupon bestayed against that defendant.(5) The plaintiff may continue with the suit against any other defendant,but the sum paid into court shall be set off against any damages ordered to bepaid to the plaintiff by such defendant.[Order 27, rule 5.]Payment into on acounterclaim.[Order 27, rule 6.]payments into court.Cap. 36.5. A plaintiff or other person made a defendant to a counterclaim maypay money into court in accordance with the provisions of this Order subject6. (1) Unless a defence of tender before action or a plea under section 12of the Defamation Act is pleaded, the fact that a payment into court has beenmade under this Order shall not be mentioned in any pleading.(2) Subject to rule 3, no communication of such fact may be made tothe judge until all questions of liability and the amount of the debt or damagesshall have been decided, whereupon the fact shall be mentioned to the judgewho shall take into account the amount of such payment in exercising his

Rev. 2010] Civil Procedure CAP. 21 147discretion as to costs.7. The registrar of every court shall maintain a register containing detailsof every payment into court made under this Order.[Subsidiary][Order 26, rule 7.]Register of paymentsto be kept.8. (1) In place of payment into court as provided by the foregoing rulesin the joint names of himself and the plaintiff or in the names of their respectiveadvocates when advocates are acting.(2) Such payment shall in all respects be as effective as payment intocourt and the court may make orders for its disposal.[Order 27, rule 8.]Investment ofpayment.9. Money paid into court under an order of the court shall not be paidout except in pursuance of an order of the court:[Order 27, rule 9.]Money paid in underorder of court.into court by the defendant pursuant to an order under the provisions of Order36, he may (unless the court shall order otherwise) by his pleading appropriatethe whole or any part of such money, and any additional payment if necessarytender, may appropriate the whole or any part of the money in court as paymentinto court of the money alleged to have been tendered; and the money soappropriated shall thereupon be deemed to be money paid into court pursuantto the preceding rules of this Order relating to money paid into court with aplea of tender, as the case may be, and shall be subject in all respects thereto.10. (1) In any cause or matter in the High Court in which money ordamages is claimed by or on behalf of an infant or a person of unsound mindbut not found upon inquiry to be incapable of managing his own affairs, suingeither alone or in conjunction with other parties, no settlement, compromise oracceptance of money paid into court, whether before or at or after the hearing,shall, as regards the claims of any such infant or person of unsound mind, bevalid without the sanction of the court, and no money or damages recovered orawarded in any such cause or matter in respect of the claims of any such infantor person of unsound mind, whether by judgment or by settlement, compromise,payment into court or otherwise, before, or at after the hearing, shall be paidto the next friend of the plaintiff or to the plaintiff’s advocate, unless the courtshall so direct;[Order 27, rule 10.]Moneys recovered byinfants or persons ofunsound mind.(2) all money or damages recovered or awarded under subrule (1) , unlessthe court shall otherwise direct, be paid to the Public Trustee, and shall, subjectto any general or special directions of the court, be held and applied by him inProvided always that the Public Trustee may pay out of the decretalamount such costs as the plaintiff infant or person of unsound mind may haveincurred in the institution and conduct of the cause or matter in which the decree

148[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010shall have been issued.ORDER 28COMMISSION AND REFERENCES[Order 28, rule 1.]Cases in whichcourt may issuecommission toexamine witnesses.[Order 28, rule 2.]Where witnessresides withincourt’s jurisdiction.[Order 28, rule 3.]Persons for whoseexaminationcommission mayissue.1. Any court may in any suit issue a commission for the examinationon interrogatories or otherwise of any person resident within the limits of itsjurisdiction who is exempted under the Act from attending the court or who is2. A commission for the examination of a person who resides within thelocal limits of the jurisdiction of the court issuing the same may be issued toof—3. (1) Any court may in any suit issue a commission for the examination(a) any person resident beyond the local limits of its jurisdiction;(b) any person who is about to leave such limits before the date onwhich he is required to be examined in court; or(copinion of the court attend without detriment to the public service.[Order 28, rule 4]Request to examinewitness abroad.[Order 28, rule 5.]Court to examinewitness pursuant tocommission.[Order 28, rule 6.]Return ofcommission withdeposition of witness.[Order 28, rule 7.]Commissions tomake investigations.4. Where any court to which application is made for the issue of asuch commission or a letter of request.any person shall examine him or cause him to be examined pursuant thereto.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 wasissued, unless the order for issuing the commission has otherwise directed, inwhich case the commission shall be returned in terms of such order; and thecommission and the return thereto and the evidence taken under it shall formpart of the record of the suit.7. On the application of any party or of its own motion in any suit, thecourt may issue a commission to any person to make an investigation and reportto the court for the purpose of ascertaining-(a) any matter in dispute in the suit, whether or not the matter issubstantially the whole matter in dispute between the parties; or

Rev. 2010] Civil Procedure CAP. 21 149(b) the value of any property or the extent of any damage thereto, or[Subsidiary]8. (1) The commissioner, after such local inspection as he deemsnecessary and after reducing to writing the evidence taken by him, shall returnsuch evidence, together with his report in writing signed by him, to the court.[Order 28, rule 8.]Procedure ofcommissioner.(2) The report of the commissioner and the evidence taken by him (butnot the evidence without the report) shall be evidence in the suit and shallform part of the record; but the court, or, with the permission of the court, anyof the parties to the suit, may examine the commissioner personally in opencourt touching any of the matters referred to him or mentioned in his report,or as to his report, or as to the manner in which he has made the investigation.of the commissioner, it may direct such further inquiry to be made as it shall9. On the application of any party or of its own motion in any suit inwhich the examination of accounts is necessary or desirable, the court may refer10. (1) The court shall furnish a referee appointed under rule 9 withsuch part of the proceedings and such instructions as appear necessary, and theinstructions shall distinctly specify whether the referee is merely to transmitthe proceedings which he may hold on the inquiry, or also to report his ownopinion on the point referred for his examination.[Order 28, rule 9.]Examination ofaccounts by referee.[Order 28, rule 10.]Instructions toreferee.(2) The proceedings and report (if any) of the referee shall be evidence11. Where a preliminary decree for partition has been passed, the courtaccording to the rights as declared in such decree.[Order 28, rule 11.]Partition ofimmovable property.12. (1) The person appointed shall, after such inquiry as may be necessary,divide the property into as many shares as may be directed by the order underwhich he was appointed, and shall allot such shares to the parties, and may, ifauthorised thereto by the said order, award sums to be paid for the purpose ofequalising the value of the shares.[Order 28, rule 12.]Procedure uponpartition.(2) He shall then prepare and sign a report, or, where more than oneperson was appointed, and they cannot agree, they shall prepare and sign separatereports, appointing the share of each party and distinguishing each share (ifso directed by the said order) by measurements and boundaries. Such reportor reports shall be annexed to the appointments, and transmitted to the court;and the court, after hearing any objections which the parties may make to the

150[Subsidiary][Order 28, rule 13.]Expenses ofcommission to bepaid into court.[Order 28, rule 14.]Powers ofcommissioner.CAP. 21 Civil Procedure [Rev. 201013. Before issuing any commission, reference or appointment under thisOrder, the court may order such sum (if any) as it thinks reasonable for theexpenses of the commission, reference or inquiry, to be, within a time to becommission, reference or appointment is issued.14. Any person appointed under this Order may, unless otherwise directedby the order of appointment—(a) examine the parties themselves and any witness whom they orany of them may produce, and any other person whom the personappointed thinks proper to call upon to give evidence in the matterreferred to him;(b) call for and examine documents and other things relevant to thesubject of the inquiry; or(c) at any reasonable time enter upon or into any land or buildingmentioned in the order.[Order 28, rule 15.]Attendance andexamination ofwitnesses beforecommissioner.15. (1) The provisions of the Act and these Rules relating to thesummoning, attendance and examination of witnesses, and to the remunerationof, and penalties to be imposed upon witnesses, shall apply to persons requiredto give evidence or to produce documents under this Order, and for the purposesof this rule any person appointed under this Order shall be deemed to be a judge.(2) A commissioner appointed under the Act may apply to the courtnecessary to issue to or against any witness who resides within the local limitsof the jurisdiction of such court, and such court may in its discretion issue suchprocess as it considers reasonable and proper.[Order 28, rule 16.]Parties to appearbefore commissioner.16. (1) Where a commission is issued under the preceding rules, the courtshall direct that the parties to the suit shall appear before the commissioner inperson or by their agents or advocates.(2) Where all or any of the parties do not so appear, the person executingthe commission may proceed in their absence.[Order 28, rule 17.]Commissions issuedby foreign courts.17. The provisions as to the execution and return of commissions for theexamination of witnesses shall apply to commissions issued by—(a) courts situated in any part of the Commonwealth other than(b) courts of any foreign country for the time being in alliance with

Rev. 2010] Civil Procedure CAP. 21 151[Subsidiary]18. For the avoidance of doubt it is hereby declared that any powersexercisable by the court in regard to the taking of evidence are exercisablein civil proceedings by or against the Government as they are exercisable inproceedings between subjects.[Order 28, rule 18.]Evidence inproceedings byor against theGovernment.ORDER 29PROCEEDINGS BY OR AGAINST THE GOVERNMENT in subsection (3) of section 19 of that Act—meaning as it has for the purposes of Parts IV and V of the GovernmentProceedings Act by virtue of subsection (3) of section 2 of that Act;decree, rule, award, declaration and an order for costs) made in civil proceedingsbrought by or against the Government, or in connection with any arbitration towhich the Government is a party, in favour of any person against the Government(2) Except where the context otherwise requires, references to suitswhere the subject-matter is immovable or movable property shall be construedas including proceedings against the Government for an order declaring thatthe plaintiff is entitled as against the Government to such property or to thepossession thereof.[Order 29, rule 1.]Interpretation.2. (1) Except as provided by the Government Proceedings Act or bythese Rules—(a) these Rules shall apply to all civil proceedings by or against theGovernment; and(b) civil proceedings by or against the Government shall take the sameform as civil proceedings between subjects and shall, if no specialform is applicable, take the form of a suit instituted by a plaint.[Order 29, rule 2.]Rules to applyto proceedingsby or against theGovernment.Cap. 40(2) No order against the Government may be made under—(a) Order 14, rule 4 (Impounding of documents);(b) Order 22 (Execution of decrees and orders);(c) Order 23 (Attachment of debts);

152[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(d) Order 40 (Injunctions); and(e) Order 41 (Appointment of receiver).[Order 29, rule.3.]Application for asection. 21 ofthe GovernmentProceedings Act.Cap.40.[Order 29, rule 4.]Attachment of debtsor appointment of areceiver.Proceedings Act (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;be issued with respect to costs ordered to be paid to the applicant shall be madeshall be in one of Form Nos. 22 and 23 of Appendix A with such variations ascircumstances may require.4. (1) No order for the attachment of debts under Order 23 or for theappointment of a receiver under Order 41 shall be made or have effect inrespect of any money due or accruing or alleged to be due or accruing fromthe Government.(2) In a case where it is alleged that such an order could have beenobtained and would have had effect in respect of such money if it had been dueor accruing from a subject the court may on the application by summons of thedecree-holder make an order restraining the judgment-debtor from receivingsuch money and directing payment by the Government to the decree-holder orreceiver; and the court may appoint a receiver for that purpose.(3) No such order shall be made in respect of money which is subject tothe provisions of any enactment prohibiting or restricting assigning or chargingor taking in execution.(4) (a) Any such summons under subrule (2) shall on the Governmentat least four days before the return day and, unless otherwise ordered, on thejudgment-debtor or his advocate.(b) Service on the judgment-debtor or his advocate shall be in the mannerprovided for such service by Order 23 rule 1, and service on the Governmentshall be effected by service on the Attorney-General in accordance with Order5, rule 9.(5) If the Government disputes liability the court may order that any issueor question necessary for determining the liability of the Government shall betried or determined in any manner in which any issue or question in a suit maybe tried or determined; and where it is suggested by the Government that thedebt with reference to which the proceedings are taken belongs to some thirdperson, or that any third person has a claim upon it, the court may order suchthird person to appear and state the nature and particulars of his claim uponsuch debt; and after hearing any such third person as aforesaid, and any otherperson whom by the same or any subsequent order the court may require toappear, the court may bar the claim of the third person or make such order withthe third person’s claim (if any) and to costs as it deems just and reasonable,and if the third person does not appear when ordered, the court may exercise

Rev. 2010] Civil Procedure CAP. 21 153any powers which it might have exercised if he had appeared.[Subsidiary]whom the order for the attachment of debts or for the appointment of a receiver means the person in whose favour it could have been obtained.ORDER 30SUITS BY OR AGAINST FIRMS AND OTHER PERSONSCARRYING OUT BUSINESS IN NAMESOTHER THAN THEIR OWN1. Any two or more persons claiming or being liable as partners andany) in which such persons were partners at the time of the accruing of thecause of action, and any party to a suit may in such case apply to the court fora statement of the names and addresses of the persons who were, at the time ofthe plaintiffs or their advocate shall, on demand in writing by or on behalf ofany defendant, within seven days, declare in writing the names and places ofinstituted.(2) Where the plaintiffs or their advocate fail to comply with any demandmade under subrule (1), all proceedings in the suit may, upon an application forthat purpose, be stayed upon such terms as the court may direct.(3) Where the names of the partners are declared in the manner referredto in subrule (1), the suit shall proceed in the same manner, and the sameconsequences in all respects shall follow, as if they had been named as plaintiffsin the plaint:Provided that all the proceedings shall nevertheless continue in the name[Order 30, rule 1.]Suing of partners in[Order 30, rule 2.]Disclosure ofpartners’ names.service of the summons shall be effected either—[Order 30, rule 3.]Service.(a) upon any one or more of the partners;(b) at the principal place at which the partnership business is carriedthe control or management of the partnership business there; or(c) as the court may direct.

154[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010Provided that, in the case of a partnership which has been dissolved to theknowledge of the plaintiff before the institution of the suit, the summons shall[Order 30, rule 4.]Notice in whatcapacity served.[Order 30, rule 5.]Appearance ofpartners.[Order 30, rule 6.]No appearanceexcept by partners.[Order 30, rule 7.]Appearance in actionprovided by rule 3, every person upon whom it is served shall be informedby notice in writing given at the time of such service, whether he is served asa partner or as a person having the control or management of the partnershipbusiness, or in both characters, and, in default of such notice, the person servedshall be deemed to be served as a partner.shall appear individually in their own names, but all subsequent proceedings6. Where a summons is served in the manner provided by rule 3, upona person having the control or management of the partnership business, no7.(1) Any person served as a partner under rule 3 but who denies that hewas a partner or liable as such at any material time may enter an appearance(2) If an appearance is so entered—(a) the plaintiff may apply to set it aside on the ground that the personentering it was a partner or liable as such, or may leave that questionto be determined at a later stage of the proceedings; or(b) the person entering the appearance may apply to set aside the serviceon him on the ground that he was not a partner or liable as such;or he may at the proper time deliver a defence denying either orboth—(i) his liability as a partner;(3) An order may on the application of either party at any time be madethat the questions as to the liability of the person served and the liability of the[Order 30, rule 8.]and partners.common; but no execution shall be issued in such suits except by leave of the

Rev. 2010] Civil Procedure CAP. 21 155court, and, on an application for leave to issue such execution, all such accountsand inquiries may be directed to be taken and made and such directions givenas may be just.[Subsidiary]9. Any person carrying on business in a name or style other than hisfar as the nature of the case will permit, all rules under this Order shall apply.ORDER 31[Order 30, rule 9.]Suit against personscarrying on businessin name other thanhis own.SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS1. In all suits concerning property vested in a trustee, executor orin such property and a third person, the trustee, executor or administrator shallrepresent the persons so interested, and it shall not ordinarily be necessary toany of them to be made parties.2. Where there are several trustees, executors or administrators, theyshall 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[Order 31, rule 1.]Representation ofconcerning propertyvested in trustees.[Order 31, rule 2.]Joinder of trustees,executors andadministrators.ORDER 32SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND1. (1) Every suit by a minor shall be instituted in his name by a personwho in such suit shall be called the next friend of the minor.(2) Before the name of any person shall be used in any action as nextfriend of any infant where the suit is instituted by an advocate, such personshall sign a written authority to the advocate for that purpose, and the authority2. (1) Where a suit is instituted by or on behalf of a minor without a nextfriend the defendant may apply to have the suit dismissed with costs to be paidby the advocate or other person by whom it was presented.(2) Notice of such application shall be given to such person, and thecourt, after hearing his objections (if any), may make such order in the matterthe fact of his minority, shall appoint a proper person to be guardian ad litemof such minor.[Order 32, rule 1.]Minor to sue by nextfriend.[Order 32, rule 2.]Where suit isinstituted withoutnext friend.[Order 32, rule 3.]Guardian ad litem.

156[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(2) An order for the appointment of guardian ad litem may be obtainedupon application in the name and on behalf of the minor or by the plaintiff. fact that the proposed guardian has no interest in the matters in controversy in(4) No order shall be made on any application under this rule exceptupon notice to the minor and to any guardian of the minor appointed or declaredby an authority competent in that behalf, or, where there is no such guardian,upon notice to the father or mother of the minor, or, where there is no fatheror mother of the minor, to the person in whose care the minor is, and, afterhearing any objections which may be urged on behalf of any person servedwith notice under this subrule.[Order 32, rule 4.]Who may act asnext friend or beappointed guardianfor the suit.4. (1) Any person who is of sound mind and has attained majority mayact as next friend of a minor or as his guardian ad litem:Provided that the interest of such person is not adverse to that of theminor, and that he is not, in the case of a next friend, a defendant, or, in thecase of a guardian ad litem, a plaintiff.(2) Where a minor has a guardian appointed or declared by competentauthority, no person other than such guardian shall act as the next friend of theminor or be appointed his guardian ad litem, unless the court considers, forreasons to be recorded, that it is for the minor’s welfare that another person bepermitted to act, or be appointed, as the case may be.(3) No person shall without his consent be appointed a guardian ad litem.adlitemduties as such guardian shall be borne either by the parties or by any one ormore of the parties to the suit, or out of any fund in court in which the minor isinterested, and may give directions for the payment or allowance of such costsas justice and the circumstances of the case may require.[Order 32, rule 5.]Representation ofminor by next friendor guardian for thesuit.[Order 32, rule 6.]Receipt of properties5. (1) Every application to the court on behalf of a minor, other thanan application under rule 10 (2), shall be made by his next friend or by hisguardian ad litem.(2) Every order made in a suit or on any application before the court inor by which a minor is in any way concerned or affected, without such minorbeing represented by a next friend or guardian ad litem, as the case may be,may be discharged, and, where the advocate of the party at whose instance suchorder was obtained, knew, or might reasonably have known, the fact of suchminority, with costs to be paid by such advocate.6. (1) A next friend or guardian ad litem shall not, without the leave ofthe court, receive any money or other movable property on behalf of a minor,

Rev. 2010] Civil Procedure CAP. 21 157either—(a) by way of compromise before decree or order; or[Subsidiary]or money on behalfof minor.(b) under a decree or order in favour of the minor.(2) Where the next friend or guardian ad litem has not been appointedor declared by competent authority to be guardian of the property of the minor,or, having been so appointed or declared, is under any disability known to thecourt to receive the money or other movable property, the court shall, if it grantshim leave to receive the property, require such security and give such directionsits proper application.7. (1) No next friend or guardian ad litem shall, without the leave ofthe court expressly recorded in the proceedings, enter into any agreement orcompromise on behalf of a minor with reference to the suit in which he acts asnext friend or guardian.[Order 32, rule 7.]Agreement orcompromise of suiton behalf of minor.(2) Any such agreement or compromise entered into without the leave ofthe court so recorded shall be voidable against all parties other than the minor.8. (1) Unless otherwise ordered by the court, a next friend shall not retirethe costs already incurred.(2) The application for the appointment of a new next friend shall bethat he has no interest adverse to that of the minor.9. (1) Where the interest of the next friend of a minor is adverse to thatof the minor, or where he is so connected with a defendant whose interest isadverse to that of the minor as to make it unlikely that the minor’s interest willbe properly protected by him, or where he does not do his duty, or during thecause, application may be made on behalf of the minor or by a defendant formay order the next friend to be removed accordingly, and make such other order(2) Where the next friend is not a guardian appointed or declared by anauthority competent in this behalf, and an application is made by a guardian soappointed or declared who desires to be himself appointed in the place of thenext friend, the court shall remove the next friend unless it considers, for reasonsto be recorded by it, that the guardian ought not to be appointed the next friendof the minor, and shall thereupon appoint the applicant to be next friend in his[Order 32, rule 8.]Retirement of nextfriend.[Order 31, rule 9.]Removal of nextfriend.10. (1) On the retirement, removal or death of the next friend of a minor,further proceedings shall be stayed until the appointment of a next friend inhis place.[Order 32, rule 10.]Stay of proceedings.

158CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](2) Where the advocate of such a minor omits, within a reasonable time,to get a new next friend appointed, any person interested in the minor or in thematter in issue may apply to the court for the appointment of one, and the court[Order 32, rule 11.]Retirement, removal,or death of guardianad litem.11. (1) Where the guardian ad litem desires to retire or does not do hissuch guardian to retire or may remove him, and may make such order as to(2) Where the guardian ad litem retires, dies, or is removed by the courtduring the pendency of the suit, the court shall appoint a new guardian in hisplace.[Order 32, rule 12.]Procedure whereminor attainsmajority.12. (1) A minor plaintiff or a minor not a party to a suit on whose behalfan application is pending shall, on attaining majority, elect whether he willproceed with the suit or application.(2) Where he elects to proceed with the suit or application he shall applyfor an order discharging the next friend and for leave to proceed in his own name.(3) The title of the suit or application shall in such case be corrected soas to read thenceforth thus—(4) Where he elects to abandon the suit or application he shall, if a soleplaintiff or sole applicant apply for an order to dismiss the suit or applicationon repayment of the costs incurred by the defendant or opposite party, or whichmay have been paid by his next friend.(5) Any application under this rule may be made ex parte by chambersummons; but no order discharging a next friend and permitting a minor plaintiffto proceed in his own name shall be made without notice to the next friend.[Order 32, rule 13.]Where minor coplaintiffattainingmajority desires torepudiate suit.13. (1) Where a minor co-plaintiff on attaining majority desires torepudiate the suit, he shall apply to have his name struck out as co- plaintiff;(2) Notice of the application shall be served on the next friend, on anyco-plaintiff, and on the defendant.(3) The costs of all parties to such application, and of all or anyproceedings theretofore had in the suit, shall be paid by such persons as thecourt directs.(4) Where the applicant is a necessary party to the suit, the court maydirect him to be made a defendant.

Rev. 2010] Civil Procedure CAP. 21 159[Subsidiary]14. (1) A minor on attaining majority may, if a sole plaintiff, apply thata suit instituted in his name by a next friend be dismissed on the ground that itwas unreasonable or improper.[Order 32, rule 14.]Unreasonable orimproper suit.(2) Notice of the application shall be served on all the parties concerned;grant the application and order the next friend to pay the costs of all parties inrespect of the application and of anything done in the suit, or make such other15. 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 personswho though not so adjudged are found by the court on inquiry, by reason ofinterests when suing or being sued.[Order 32, rule 15.]Application ofrules to persons ofunsound mind.ORDER 33SUITS BY PAUPERS1. (1) Subject to the following rules, any suit may be instituted by apauper.for the institutions of such suit.2. Every application for permission to sue as a pauper shall contain theparticulars required in regard pleadings, together with a statement that the pauperis unable to pay the fee prescribed in such suit, and the whole shall be signedin the manner prescribed for the signing of pleadings.[Order 33, rule 1.]Suits may beinstituted by apauper.[Order 33, rule 2.]Contents ofapplication.3. Notwithstanding anything contained in these Rules, the applicationshall be presented to the court by the applicant in person unless the applicantis exempted from appearance in court by section 82 of the Act, in which casethe application may be presented by an authorised agent who can answer allmaterial questions relating to the application, and who may be examined in thesame manner as the party represented by him might have been examined hadsuch party attended in person.[Order 33, rule 3.]Presentation ofapplication.4. Where the application is in proper form and duly presented the courtallowed to appear by agent, regarding the merits of the claim and the propertyof the applicant.[Order 33, rule 4.]Examination ofapplicant.5. The court shall reject an application for permission to sue as a pauper—(a) where it is not framed and presented in the manner prescribed inrules 2 and 3;[Order 33, rule 5.]Rejection ofapplication.

160CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](b) where the applicant is not a pauper;(c) where he has, within two months next before the presentation ofthe application, disposed of any property fraudulently or in orderto be able to apply for permission to sue as a pauper;(d) where his allegations do not show a cause of action; or(e) where he has entered into any agreement with reference to thesubject-matter of the proposed suit under which any other personhas obtained an interest in such subject-matter.[Order 33, rule 6.]Notice of day forreceiving evidence ofapplicant’ spauperism.[Order 33, rule 7.]Procedure at hearing.6. Where the court sees no reason to reject the application on any ofnotice shall be given to the opposite party) for receiving such evidence as theapplicant may adduce in proof of his pauperism and for hearing any evidencewhich may be adduced in disproof thereof.the court shall examine the witnesses (if any) produced by either party, andmay examine the applicant or his agent, and shall make a memorandum of thesubstance of their evidence.(2) The court shall also hear any argument which the parties may desire tooffer on the question whether, on the face of the application and of the evidence(if any) taken by the court as herein provided, the applicant is or is not subject(3) The court shall then either allow or refuse to allow the applicant tosue as a pauper.[Order 33, rule 8.]Procedure ifapplication admitted.[Order 33, rule 9.]Dispaupering.8. Where the application is granted, it shall be deemed the pleading inthe suit, and the suit shall proceed in all other respects as a suit instituted in theordinary manner except that the plaintiff shall not be liable to pay any court fee.9. The court may, on the application of the defendant, of which sevendays’ clear notice in writing has been given to the plaintiff, order the plaintiffto be dispaupered—(a) if he is guilty of vexatious or improper conduct in the course ofthe suit;(b) if it appears that his means are such that he ought not to continueto sue as a pauper; or(c) if he has entered into any agreement, with reference to the subjectmatterof the suit, under which any other person has obtained aninterest in such subject-matter.[Order 33, rule 10.]10. Where the plaintiff succeeds in the suit, the court shall calculate the

Rev. 2010] Civil Procedure CAP. 21 161amount of the court fees which would have been paid by the plaintiff if he hadnot been permitted to sue as a pauper; such amount shall be recoverable by thecharge on the subject-matter of the suit.11. Where the plaintiff fails in the suit or is dispaupered or where the suitis withdrawn or dismissed because the plaintiff does not appear when the suitis called on for hearing, the court shall order the plaintiff, or any person addedas a co-plaintiff to the suit, to pay the court fees which would have been paidby the plaintiff if he had not been permitted to sue as a pauper.12. The Government shall have the right at any time to apply to thecourt to make an order for the payment of court fees under rule 10 or rule 11.13. All matters arising between the Government and any party to the suitunder rule 10, rule 11 or rule 12 shall be deemed to be questions arising betweenthe parties to the suit within the meaning of section 34 of the Act.14. An order refusing to allow the applicant to sue as a pauper shall bea bar to any subsequent application of the like nature by him in respect of thesame right to sue; but the applicant shall be at liberty to institute a suit in the(if any) incurred by the Government and by the opposite party in opposing hisapplication for leave to sue as a pauper.15. The costs of an application for permission to sue as a pauper and ofan inquiry into pauperism shall be costs in the suit.16. (1) If any defendant alleges that he is unable to pay court fees theregistrar, upon application being made for that purpose, shall inquire into thepoverty is true, shall record on the record the result of his investigation and astatement of the proportion of the fees (if any) which the defendant is able todefendant is able to pay shall be payable.the defendant to pay court fees, he shall so certify and advise the defendant asto the fees payable by him.(3) An appeal shall lie from the decision of the registrar to a judge inchambers.17. In the event of a pauper plaintiff or defendant succeeding in any suitwhich results in a decree or order for payment to him of any sum of money fromthe other side, whether by way of costs or otherwise, the court may order thatcharge on any moneys recovered or to be recovered under such decree or order.[Subsidiary]Costs where paupersucceeds.[Order 33, rule 11.]Procedure wherepauper fails.[Order 33, rule 12.]Government mayapply for payment ofcourt fees.[Order 33, rule 13.]Government to bedeemed a party.[Order 33, rule 14.]Refusal to allowapplicant to sueas pauper tobar subsequentapplication of likenature.[Order 33, rule 15.]Costs.[Order 33, rule 16.]Court fees.[Order 33, rule 17.]Recovery of courtfees from pauper.

Rev. 2010] Civil Procedure CAP. 21 163Provided that no order shall be made against the Government under thisrule except upon an application by summons served not less than seven daysbefore the return day.[Subsidiary]8. Where the question in issue is a question of law and no facts aredisputed the court may decide the question without the trial of an issue.9. The applicant may be granted relief notwithstanding the fact thatthe titles of the claimants have not a common origin but are adverse to andindependent of one another.[Order 34, rule 8.]Questions of law.(Order 34, rule 9.]Adverse title ofclaimants.ORDER 35PROCEEDINGS BY AGREEMENT OF PARTIES1. (1) Parties claiming to be interested in the decision of any question offact or law may enter into an agreement in writing stating such question in theof the court with respect to such question—(acourt shall be paid by one of the parties to the other of them; or(bshall be delivered by one of the parties to the other of them; or(c) one or more of the parties shall do, or refrain from doing, some(2) Every case stated under this rule shall be divided into consecutivelynumbered paragraphs, and shall concisely state such facts and specify suchdocuments as may be necessary to enable the court to decide the questionraised thereby.2. Where the agreement is for the delivery of any property, or for thedoing or the refraining from doing, any particular act, the estimated value ofbe stated in the agreement.[Order 35, rule 1.]Power to state casefor court’s opinion.[Order 35, rule 2.]Where value ofsubject-matter mustbe stated.3. (1) The agreement, if framed in accordance with the rules hereinbeforea suit, the amount or value of the subject-matter of which is the same as theamount or value of the subject-matter of the agreement.suit between one or more of the parties claiming to be interested as plaintiff orplaintiffs, and the other or the others of them as defendant or defendants; andnotice shall be given to all the parties to the agreement, other than the party or[Order 35, rule 3.]and registered as suit.

164[Subsidiary][Order 35, rule 4.]Parties to besubject to court’sjurisdiction.[Order 35, rule 5.]Hearing and disposalof case.CAP. 21 Civil Procedure [Rev. 2010parties by whom it is presented.to the jurisdiction of the court and shall be bound by the statements containedtherein.5. (1) The case shall be set down for hearing as a suit instituted in theordinary manner, and the provisions of Order 10B shall apply to such suit sofar as the same are applicable(a) that the agreement was duly executed by them;(b(cit shall proceed to pronounce judgment thereon, in the same way as in an ordinarysuit, and upon the judgment so pronounced a decree shall follow.ORDER 36SUMMARY PROCEDURE[Order 36, rule 1.]Summary judgment.1. (1) In all suits where a plaintiff seeks judgment for—(a) a liquidated demand with or without interest; or(b) the recovery of land, with or without a claim for rent or mesnedetermined by notice to quit or been forfeited for non-payment ofrent or for breach of covenant, or against persons claiming undersuch tenant or against a trespasser,apply for judgment for the amount claimed, or part thereof, and interest, or forrecovery of the land and rent or mesneor of some other person who can swear positively to the facts verifying thecause of action and any amount claimed.which notice shall in no case be less than seven days.[Order 36, rule 2.]Defendant may showcause.otherwise that he should have leave to defend the suit.

166[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 37ORIGINATING SUMMONS[Order 37, rule 1.]Who may take outoriginating summonsand in respect ofwhat matters.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 personclaiming 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 theterms 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 suchcircumstances of the case may require, that is to say, the determination, withoutthe administration of the estate or trust, of any of the following questions-(a) any question affecting the rights or interest of the person claimingto be creditor, devisee, legatee, heir or cestui que trust;(b) the ascertainment of any class of creditors, devisees, legatees,heirs, or others;(c) the furnishing of any particular accounts by the executors,administrators or trustees, and the vouching, when necessary, ofsuch accounts;(d) the payment into court of any money in the hands of the executors,administrators or trustees;(e) directing the executors, administrators or trustees to do, or abstainfrom doing, any particular act in their character as executors,administrators or trustees;(f) the approval of a sale, purchase, compromise or other transaction;(g) the determination of any question arising directly out of theadministration of the estate or trust.[Order 37, rule 2.]Order foradministration ofestate or trust.2. Any of the persons named in rule 1 may in like manner apply for andobtain an order for—(a) the administration of the personal estate of the deceased;(b) the administration of the real estate of the deceased;(c) the administration of the trust.[Order 37, rule 3.]Summons by vendoror purchaser of land.3. A vendor or purchaser of immovable property or their representativesrespectively may, at any time or times, take out an originating summonsreturnable before the judge sitting in chambers, for the determination of anyquestion which may arise in respect of any requisitions or objections, or anyclaim for compensation; or any other question arising out of or connected with

Rev. 2010] Civil Procedure CAP. 21 167the contract of sale (not being a question affecting the existence or validity ofthe contract).[Subsidiary]4. Any mortgagee or mortgagor, whether legal or equitable, or any personentitled to or having property subject to a legal or equitable charge, or any personhaving the right to foreclose or redeem any mortgage, whether legal or equitable,may take out as of course an originating summons, returnable before the judgein chambers, for such relief of the nature or kind following as may be by theto say, sale, foreclosure, delivery of possession by the mortgagor, redemption,reconveyance, delivery of possession by the mortgagee.[Order 37, rule 4.]Summons bya mortgagee,mortgagor andothers.5. An application under section 116 of the Government Lands Act orsection 57 of the Registration of Titles Act shall be made by originating summonsunless there is pending a suit involving the same lands when the applicationmay be made by summons in that suit.6. (1) An application under section 27 of the Limitation of Actionsex parte by originating summons[Order 37, rule 5.]Caveats.Cap. 280 and Cap.281.[Order 37, rule 6.]Extension oflimitation period.exparte in that suit.7. (1) An application under section 38 of the Limitation of Actions Actshall be made by originating summons.[Order 37, rule 7.]Adverse possession.extract of the title to the land in question has been annexed.(3) The court shall direct on whom and in what manner the summonsshall be served.8. An application under the Registered Land Act other than under sections120, 128, 133, 138, 143 and 150 thereof shall be made by originating summonsunless there is pending a suit involving the same lands when the applicationmay be made in that suit.[Order 37, rule 8.]Application under theRegistered Land Act.Cap. 300.9. An application under section 9 of the Chattels Transfer Act shall bemade by originating summons ex partethe grounds relied upon.10. When the existence of a partnership, or the right to a partnership,or his representatives may take out an originating summons returnable beforethe judge sitting in chambers against his partners or former partners or theirrepresentatives (if any) for the purpose of having the partnership dissolved (ifit be still subsisting) and for the purpose of taking the accounts of and windingup such partnership.[Order 38, rule 9.]Application underChattels Transfer Act.Cap. 28.[Order 37, rule 10.]Summons bya member of apartnership.

168[Subsidiary][Order 37, rule 11.]Summons by personsinterested in deedsor wills.[Order 37, rule 12.]Variation of trusts.[Order 37, rule 13.]Discretion uponsummons forconstruction ofdocument.[Order 37, rule 14.]Forms.[Order 37, rule 15.]and registered.[Order 37, rule 16.]Directions.[Order 37, rule 17.]Procedure.[Order 37, rule 18.]Evidence anddirections uponhearing of summons.[Order 37, rule 19.]Powers of court uponhearing of summons.CAP. 21 Civil Procedure [Rev. 201011. Any person claiming to be interested under a deed, will, or otherwritten instrument, may apply in chambers by originating summons for thedetermination of any question of construction arising under the instrument,and for a declaration of the rights of the person interested.12. An application for an order under the Trustee Act shall be made byoriginating summons returnable before the judge sitting in chambers; and thesettler and any other person who provided property for the purposes of the trustsin question shall, if still alive and not an applicant and unless a judge for specialreasons otherwise directs, be made a respondent to summons in addition to anyother persons who are necessary and proper respondents thereto.13. The judge shall not be bound to determine any such question ofconstruction if, in his opinion, it ought not to be determined on originatingsummons.14. An originating summons shall be in Form No. 26 or No. 27 ofAppendix A with such variations as circumstances may require, and shall bewhere necessary shall be effected in accordance with Order 5.Summons and with notice to the parties list it for directions before a judge inchambers.17. The day and hour of attendance under an originating summons tofor hearing in chambers of the judge to whom such summons is assigned.18. At the time of directions, if the parties do not agree to the correctnessmay order the summons to be supported by such further evidence as he maydeem necessary, and may give such directions as he may think just for the trialof any issues arising thereupon, and may make any amendments necessary tomake the summons accord with existing facts, and to raise the matters in issuebetween the parties.19. (1) Where, on an originating summons under this Order, it appearsto the court at any stage of the proceedings that the proceedings should formay order the proceedings to continue as if the cause had been so begun andor without liberty to any of the parties to add to, or to apply for particulars of,

Rev. 2010] Civil Procedure CAP. 21 169(2) Where the court makes an order under subrule (1), Order 11 shallapply.[Subsidiary](3) This rule applies notwithstanding that the cause could not have been(4) Any reference in these Rules to proceedings begun by a plaint shall,unless the context otherwise requires, be construed as including a reference toa cause proceeding under an order made under subrule (1).20. If an originating summons is adjourned into court, the judge may, ifthe costs be taxed on the scale applicable to suits. In all other cases the judgemay make such orders as to the costs of the parties as he considers just.[Order 37, rule 20.]Court may makeorders as to costsincurred by any party.ORDER 38SELECTION OF TEST SUIT1. Where two or more persons have instituted suits against the samedefendant and such persons under rule 1 of Order I could have been joined asco-plaintiffs in one suit, upon the application of any of the parties with noticeeach suit are precisely similar, make an order directing that one of the suits betried as a test case, and staying all steps in the other suits until the selected suitshall have been determined, or shall have failed to be a real trial of the issues.2. Where a plaintiff has instituted two or more suits, and under rule 3 ofOrder 1 the several dependants could properly have been joined as co-defendantsissues to be tried in the suit to which he is a party are precisely similar to theissues to be determined in another of such suits, may order that the suit towhich such defendant is a party be stayed until such other suit shall have beendetermined or shall have failed to be a real trial of the issues.[Order 38, rule 1.]Staying several suitsagainst the samedefendant.[Order 38, rule 2.]Staying similar suitsupon application bydefendant.ORDER 39ARREST AND ATTACHMENT BEFORE JUDGMENT1. Where at any stage of a suit, other than a suit of the nature referredto in paragraphs (a) to (d(a) that the defendant with intent to delay the plaintiff, or to avoid anyprocess of the court, or to obstruct or delay the execution of anydecree that may be passed against him—(i) has absconded or left the local limits of the jurisdiction of thecourt; or[Order 39, rule 1.]Where defendantmay be called uponto furnish security forappearance.

170CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](ii) is about to abscond or leave the local limits of the jurisdictionof the court; or(iii) has disposed of or removed from the local limits of thejurisdiction of the court his property or any part thereof; or(baffording reasonable probability that the plaintiff will or maythereby be obstructed or delayed in the execution of any decreethat may be passed against the defendant in the suit,the court may issue a warrant to arrest the defendant and bring him before thecourt to show cause why he should not furnish security for his appearance:by the court until the suit is disposed of or until the further order of the court.[Order 39, rule 2.]Security.2. (1) Where the defendant fails to show such cause the court shall orderclaim against him, or to furnish security for his appearance at any time whencalled upon while the suit is pending and until satisfaction of the decree that maythe sum which may have been paid by the defendant under the proviso to rule 1.(2) Every surety for the appearance of a defendant shall bind himself,in default of such appearance, to pay any sum of money which the defendantmay be ordered to pay in the suit.[Order 39, rule 3.]Procedure onapplication by suretyto be discharged.3. (1) A surety for the appearance of a defendant may at any time applyto the court in which he became a surety to be discharged from his obligation.(2) On such application being made the court shall summon the defendant(3) On the appearance of the defendant in pursuance of the summonsor warrant, or on his voluntary surrender, the court shall direct the surety to besecurity.[Order 39, rule 4.]Procedure wheredefendant fails tofurnish security or4. Where the defendant fails to comply with any order under rule 2 or rule3, the court may commit him to prison until the decision of the suit, or, whereProvided that—(a) no person shall be detained in prison under this rule in any casefor a longer period than six months, nor for a longer period thansix weeks when the amount or value of the subject-matter of the

Rev. 2010] Civil Procedure CAP. 21 171[Subsidiary](b) no person shall be detained in prison under this rule after he hascomplied with such order.otherwise, that the defendant, with intent to obstruct or delay the execution ofany decree that may be passed against him—(a) is about to dispose of the whole or any part of his property; or(b) is about to remove the whole or any part of his property from thelocal limits of the jurisdiction of the court,[Order 39, rule 5.]Where defendantmay be called uponto furnish securityfor production ofproperty.place at the disposal of the court, when required, the said property or the valueor to appear and show cause why he should not furnish security.(2) The plaintiff shall, unless the court otherwise directs, specify theproperty required to be attached and the estimated value thereof.(3) The court may also in the order direct the conditional attachment of6. (1) Where the defendant fails to show cause why he should not furnishattached.(2) Where the defendant shows such cause or furnishes the requiredcourt shall order the attachment to be withdrawn, or make such other order as[Order 39, rule 6.]Attachment wherecause not shownor security notfurnished.7. Save as otherwise expressly provided, the attachment shall be madein the manner provided for the attachment of property in execution of a decree.8. Where any claim is preferred to property attached before judgment,such claim shall be investigated in the manner hereinbefore provided for theinvestigation of claims to property attached in execution of a decree for thepayment of money.[Order 39, rule 7.]Mode of makingattachment.[Order 39, rule 8.]Investigation or claimto property attachedbefore judgment.9. Where an order is made for attachment before judgment, the courtshall order the attachment to be withdrawn when the defendant furnishes thesecurity required, together with security for the costs of the attachment, orwhen the suit is dismissed.[Order 39, rule 9.]Removal ofattachment whensecurity furnished orsuit dismissed.

172CAP. 21 Civil Procedure [Rev. 2010[Subsidiary][Order 39, rule 10.]Attachment beforejudgment not toaffect rights ofstrangers nor bardecree-holder fromapplying for sale.[Order 39, rule 11.]Property attachedbefore judgment notto be re-attached inexecution of decree.10. Attachment before judgment shall not affect the rights, existing priorto the attachment, of persons not parties to the suit, nor bar any person holdinga decree against the defendant from applying for the sale of the property underattachment in execution of such decree.11. Where property is under attachment by virtue of this Order, and adecree 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-attachmentof the property.ORDER 40TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS[Order 40, rule 1]Cases in whichtemporary injunctionmay be granted.(a) that any property in dispute in a suit is in danger of being wasted,damaged, or alienated by any party to the suit, or wrongfully soldin execution of a decree; or(b) that the defendant threatens or intends to remove or dispose of hisproperty in circumstances affording reasonable probability thatthe plaintiff will or may be obstructed or delayed in the executionof any decree that may be passed against the defendant in the suit,the court may by order grant a temporary injunction to restrain such act, ormake such other order for the purpose of staying and preventing the wasting,damaging, alienation, sale, removal, or disposition of the property as the court[Order 40, rule 2.]Injunction to restrainbreach of contract orother injury.2. (1) In any suit for restraining the defendant from committing a breachof contract or other injury of any kind, whether compensation is claimed inthe suit or not, the plaintiff may, at any time after the commencement of thesuit, and either before or after judgment, apply to the court for a temporaryinjunction to restrain the defendant from committing the breach of contractor injury complained of, or any injury of a like kind arising out of the samecontract or relating to the same property or right.(2) The court may by order grant such injunction on such terms as toan inquiry as to damages, the duration of the injunction, keeping an account,[Order 40, rule 3.]Consequence ofbreach.3. (1) In cases of disobedience, or of breach of any such terms, the courtgranting an injunction may order the property of the person guilty of suchdisobedience or breach to be attached, and may also order such person to bedetained in prison for a term not exceeding six months unless in the meantime

Rev. 2010] Civil Procedure CAP. 21 173the court directs his release.[Subsidiary](2) No attachment under this rule shall remain in force for more thanone year, at the end of which time, if the disobedience or breach continues, theproperty attached may be sold, and out of the proceeds the court may awardentitled thereto.(3) An application under this rule shall be made by notice of motion inthe same suit.object of granting the injunction would be defeated by the delay, it may hearthe application ex parte.[Order 40, rule 4.]Notice of application.(2) An ex parte injunction may be granted only once for not more thanfourteen days and shall not be extended thereafter except once by consent ofparties or by the order of the court for a period not exceeding fourteen days.(3) In any case where the court grants an ex parte injunction the applicantshall within three days from the date of issue of the order serve the order, theapplication and pleading on the party sought to be restrained. In default ofautomatically lapse.(4) All applications under this order shall be heard expeditiously and inreason extends the time.5. In all applications for injunction, the court shall, after inter- parteshearing deliver its ruling either at once or within thirty days of the conclusionof the hearing with notice to the parties or their advocates;[Order 40, rule 5]Ruling of the court.Provided where the ruling is not delivered within thirty days, the judge6. Where a suit in respect of which an interlocutory injunction has beengranted is not determined within a period of twelve months from the date oforders otherwise.[Order 40, rule 6.]Lapse of injunction.7. Any order for an injunction may be discharged, or varied, or set aside by[Order 40, rule 7.]Order for injunctionmay be discharged,varied, or set aside.8. An injunction directed to a corporation is binding not only on thepersonal action it seeks to restrain.[Order 40, rule 8.]Injunction againstcorporation binding

174[Subsidiary][Order 40, rule 9.]Power to orderinterim sale.[Order 40, rule 10.]Detention,preservation,inspection ofproperty.CAP. 21 Civil Procedure [Rev. 20109. 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 asattached before judgment in such suit, which is subject to speedy and naturalsold at once.10. (1) The court may, on the application of any party to a suit, and on(a) make an order for the detention, preservation, or inspection of anyproperty which is the subject-matter of such suit, or as to whichany question may arise therein;(b) for all or any of the purposes aforesaid authorise any person toenter upon or into any land or building in the possession of anyother party to such suit; or(c) for all or any of the purposes aforesaid authorise any samples tobe taken, or any observation to be made, or experiment to be tried,which may seem necessary or expedient for the purpose of obtainingfull information or evidence.(2) The provisions as to execution of process shall apply mutatis mutandisto persons authorised to enter under this rule.[Order 40, rule 11.]Deposit ofmoney and otherdeliverables.11. Where the subject-matter of a suit is money or some other thingcapable of delivery, and any party thereto admits that he holds such money orother thing as a trustee for another party, or that it belongs or is due to anotherparty, the court may order the same to be deposited in court or delivered tosuch last named party, with or without security, subject to the further directionof the court.ORDER 41APPOINTMENT OF RECEIVERS[Order 41, rule 1.]Appointment ofreceivers.1. (1) Where it appears to the court to be just and convenient, the courtmay by order—(a) appoint a receiver of any property, whether before or after decree;(b) remove any person from the possession or custody of the property;(c) commit the same to the possession, custody or management ofthe receiver; and(d) confer upon the receiver all such powers as to bringing anddefending suits and for the realisation, management, protection,preservation, and improvement of the property, the collection of

Rev. 2010] Civil Procedure CAP. 21 175[Subsidiary](2) Nothing in this rule shall authorise the court to remove from thepossession or custody of any person property whom any party to the suit hasnot a present right so to remove.as remuneration for the services of the receiver.3. Every receiver so appointed shall—(afor what he shall receive in respect of the property;[Order 41, rule 2.]Remuneration.[Order 41, rule 3.]Duties.(b) submit his accounts at such periods and in such form as the courtdirects;(c) pay the amount due from him as the court directs; and(d) be responsible for any loss occasioned to the property by his wilfuldefault or gross negligence.4. Where a receiver—(a) fails to submit his accounts at such periods and in such form asthe court directs; or[Order 41, rule 4.]Enforcement ofreceiver’s duties.(b) fails to pay the amount due from him as the court directs; or(c) occasions loss to the property by his wilful default or grossnegligence,the court may direct his property to be attached, and may sell such property, andmay apply the proceeds to make good any amount found to be due from him, orany loss occasioned by him, and shall pay the balance (if any) to the receiver.5. The court may either on its own motion or on application by anyinterested party, remove a receiver appointed pursuant to this order on such[Order 41, rule 5.]Removal.ORDER 42APPEALS1. (1) Every appeal to the High Court shall be in the form of amemorandum of appeal signed in the same manner as a pleading.[Order 42, rule 1.]Form of appeal.(2) The memorandum of appeal shall set forth concisely and under distinct

176[Subsidiary][Order 42, rule 2.]Filing of decree ororder.[Order 42, rule 3.]Amendment ofmemorandum ofappeal.[Order 42, rule 4.]Grounds which maybe taken in appeal.CAP. 21 Civil Procedure [Rev. 2010heads the grounds of objection to the decree or order appealed against, withoutany argument or narrative, and such grounds shall be numbered consecutively.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 under3. (1) The appellant may amend his memorandum of appeal without leaveat any time before the court gives directions under rule 13.(2) After the time limited by subrule (1) the court may, on application,permit the appellant to amend his memorandum of appeal.4. The appellant shall not, except with leave of the court, urge or beheard in support of any ground of objection not set forth in the memorandumthe grounds of objection set forth in the memorandum of appeal or taken byleave of the court under this rule:Provided that the High Court shall not rest its decision on any other opportunity of contesting the case on that ground.[Order 42, rule 5.]One of severalplaintiffs ordefendants mayobtain reversal ofwhole decree whereit proceeds on groundcommon to all.[Order 42, rule 6.]Stay in case ofappeal.5. Where there is more than one plaintiffs or defendants than one in asuit, and the decree appealed from proceeds on any ground common to all theplaintiffs or to all the defendants, any one of the plaintiffs or of the defendantsmay appeal from the whole decree, and thereupon the High Court may reverse orvary the decree in favour of all the plaintiffs or defendants, as the case may be.6.(1) No appeal or second appeal shall operate as a stay of execution orproceedings under a decree or order appealed from except in so far as the courtorder stay of execution of such decree or order, and whether the application forsuch stay shall have been granted or refused by the court appealed from, thecourt to which such appeal is preferred shall be at liberty, on application beingmade, to consider such application and to make such order thereon as may toit seem just, and any person aggrieved by an order of stay made by the courtfrom whose decision the appeal is preferred may apply to the appellate courtto have such order set aside.(2) No order for stay of execution shall be made under subrule (1)unless—(aunless the order is made and that the application has been madewithout unreasonable delay; and

Rev. 2010] Civil Procedure CAP. 21 177(b) such security as the court orders for the due performance of suchdecree or order as may ultimately be binding on him has been givenby the applicant.(3) Notwithstanding anything contained in subrule (2), the court shallhave power, without formal application made, to order upon such terms as it(4) For the purposes of this rule an appeal to the Court of Appeal shallappeal has been given.(5) An application for stay of execution may be made informallyimmediately following the delivery of judgment or ruling.(6) Notwithstanding anything contained in subrule (1) of this rule theHigh Court shall have power in the exercise of its appellate jurisdiction to granta temporary injunction on such terms as it thinks just provided the procedure forinstituting an appeal from a subordinate court or tribunal has been complied with.7. (1) Where an order is made for the execution of a decree from whichan appeal is pending, the court which passed the decree or the court to whichby the appellant, require security to be taken for the restitution of any propertywhich may be or has been taken in execution of the decree or for the paymentof the value of such property and for the due performance of the decree or orderof the court from whose decree or order such appeal shall have been brought.(2) Where an order has been made for the sale of immovable propertyin execution of a decree and an appeal is pending from such decree, the saleshall, on the application of the judgment-debtor to the court which made theorder, or to any court to which such appeal or second appeal shall have beenmade, be stayed on such terms as to giving security or otherwise as the court8. No such security as is mentioned in rules 6 and 7 shall be requiredfrom the Government or where the Government has undertaken the defence of[Subsidiary][Order 42, rule 7.]Security in case oforder for executionof decree appealedfrom.[Order 42, rule 8.]No security to berequired from theGovernment.9. The powers conferred by rules 6 and 7 shall be exercisable wherean appeal may be or has been preferred not from the decree but from an ordermade in execution of such decree.[Order 42, rule 9.]Exercise of powersin appeal from ordermade in execution ofdecree.10. (1) A register of appeals, to be called the register of appeals, shallappeal shall be entered in such register and all appeals shall be numbered in[Order 42, rule 10.]of appeals.

178CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]each such memorandum shall be date-stamped with the date on which it wasdispute as to the amount of the fee payable.[Order 42, rule 11.]Directions undersection 79B.[Order 42, rule 12.]Service ofmemorandum.[Order 42, rule 13.]Directions beforehearing.the matter to be listed before a judge for directions under section 79B of the Act.12. After the refusal of a judge to reject the appeal under section 79B ofthe Act, the registrar shall notify the appellant who shall serve the memorandumof appeal on every respondent within seven days of receipt of the notice fromthe registrar.13. (1) On notice to the parties delivered not less than twenty-one daysafter the date of service of the memorandum of appeal the appellant shall causethe appeal to be listed for the giving of directions by a judge in chambers.(2) Any objection to the jurisdiction of the appellate court shall be raisedbefore the judge before he gives directions under this rule.(3) The judge in chambers may give directions concerning the appealgenerally and in particular directions as to the manner in which the evidenceand exhibits presented to the court below shall be put before the appellate courtand as to the typing of any record or part thereof and any exhibits or othernecessary documents and the payment of the costs of such typing whether inadvance or otherwise.(4) Before allowing the appeal to go for hearing the judge shall beof them as are not in the possession of either party have been served on thatparty, that is to say:(a) the memorandum of appeal;(b) the pleadings;(c) the notes of the trial magistrate made at the hearing;(d recording or palantypist notes made at the hearing;(ebefore the magistrate;(f) the judgment, order or decree appealed from, and, where appropriate,the order (if any) giving leave to appeal:Provided that—

Rev. 2010] Civil Procedure CAP. 21 179(i) a translation into English shall be provided of any documentnot in that language;(ii) the judge may dispense with the production of any documentor part of a document which is not relevant, other than thosea), (b) and (f).[Subsidiary]14. (1) At any time after the memorandum of appeal has been served thecourt, in its discretion, may order the appellant to give security for the wholeor any part of the costs of such appeal.[Order 42, rule 14.]Security for costs.shall order the giving of security for the whole or part of the costs of the appealwithin a time to be limited in the order.(3) If security for costs is not given within the time ordered the courtmay dismiss the appeal.15. (1) When a memorandum of appeal is lodged the court to whichsuch appeal is preferred shall send notice of the appeal to the court from whosedecree the appeal is preferred.(2) The court receiving such notice shall send with all practicable despatchall material papers in the suit, or such papers as may be specially called for bythe court to which such appeal is preferred.[Order 42, rule 15.]Notice to be givenwhere decreeappealed from.(3) Either party may on application and upon payment of the requisitecharges obtain copies of any such papers as aforesaid16. (1) Any party to an appeal who does not intend to appear in personthat effect and lodge written submissions of the arguments in support of or inopposition to the appeal, as the case may be and shall, within seven days afterlodging the submission serve a copy thereof on the other party or on each otherparty appearing in person or separately represented.(2) A party who has lodged written submissions under this rule may, withleave of the court, address the court at the hearing of the appeal.[Order 42 rule 16.]Filing declaration andwritten submissions.the respondent or on his advocate in the manner provided for under Order 5.[Order 42, rule 17.]Service of hearingnotice.18. The notice to the respondent shall declare that, if he does not appearmay be heard ex parte.[Order 42, rule 18.]Contents of notice.be adjourned, the appellant shall be heard in support of the appeal.[Order 42, rule 19.]Right to begin.

180CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](2) The court shall then, if it does not dismiss the appeal at once, hear therespondent against the appeal, and in such case the appellant shall be entitledto reply.[Order 42, rule 20.]Dismissal of appealfor appellant’sdefault.may be adjourned, the appellant does not appear when the appeal is called onan order that the appeal be dismissed.(2) Where the appellant appears, and the respondent does not appear andex parte.[Order 42, rule 21.]Re-admission ofappeal dismissed fordefault.[Order 42, rule 22.]Power to adjournhearing and directinterestedpersonstobe made respondents.[Order 42, rule 23.]Re-hearing onapplication ofrespondent againstwhom ex partedecree made.[Order 42, rule 24.]Remand of cases.[Order 42, rule 25.]Where evidence onappellate court maydetermine case[Order 42, rule 26.]Power to order new21. Where an appeal is dismissed under rule 20, the appellant may applyto the court to which such appeal is preferred for the re- admission of the appeal;appearing when the appeal was called on for hearing, the court shall re-admit22. Where it appears to the court at the hearing that any person whowas 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 ofcourt and direct that such person be made a respondent.23. Where an appeal is heard ex parte and judgment is pronounced againstthe respondent, he may apply to the court to which the appeal is preferred to re-was called on for hearing, the court shall re-hear the appeal on such terms as24. Where the court from whose decree an appeal is preferred hasdisposed of the suit upon a preliminary point, and the decree is reversed onremand the case, and may further direct what issue or issues shall be tried inthe case so remanded, and shall send a copy of its judgment and order to thecourt from whose decree the appeal is preferred, with directions to re-admitthe suit under its original number in the register of civil suits, and proceed todetermine the suit; and the evidence, if any, recorded during the original trialshall, subject to all just exceptions, be evidence during the trial after remand.to which the appeal is preferred to pronounce judgment, the court to which thethe suit, notwithstanding that the judgment of the court from whose decree theappeal is preferred has proceeded wholly upon some ground other than that onwhich the court to which the appeal is preferred proceeds.26. If upon the hearing of an appeal it shall appear to the court to whichthe appeal is preferred that a new trial ought to be had, it shall be lawful for

Rev. 2010] Civil Procedure CAP. 21 181be set aside, and that a new trial shall be had.trial.[Subsidiary]27. (1) The parties to an appeal shall not be entitled to produce additionalevidence, whether oral or documentary, in the court to which the appeal ispreferred; but if—(a) the court from whose decree the appeal is preferred has refused toadmit evidence which ought to have been admitted; or[Order 42, rule 27.]Production ofadditional evidencein appellate court.(b) the court to which the appeal is preferred requires any document tobe produced or any witness to be examined to enable it to pronouncejudgment, or for any other substantial cause,the court to which the appeal is preferred may allow such evidence or documentto be produced, or witness to be examined.(2) Wherever additional evidence is allowed to be produced by thecourt to which the appeal is preferred the court shall record the reason for itsadmission.28. Wherever additional evidence is allowed to be produced, the court towhich the appeal is preferred may either take such evidence or direct the courtfrom whose decree the appeal is preferred or any other subordinate court totake such evidence and to send it when taken to the court to which the appealis preferred.29. Where additional evidence is directed or allowed to be taken the courtto which the appeal is preferred shall specify the limits to which the evidence is30. Where the court consists of more than one judge, the decree of thefrom which the appeal is preferred, or, if the parties to the appeal agree as tothe form which the decree in appeal shall take, or as to the order to be made inappeal, the court to which the appeal is preferred may pass a decree or makean order accordingly.[Order 42, rule 28.]Mode of takingadditional evidence.[Order 42, rule 29.]and recorded.[Order 42, rule 30.]Where court consistof more than onejudge.[Order 42, rule 31.]What judgment maydirect.32. The court to which the appeal is preferred shall have power to passany decree and make any order which ought to have been passed or made andto 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 appealis as to part only of the decree and may be exercised in favour of all or any ofcross-appeal.[Order 42, rule 32.]Power of appellatecourt on appeal.33. The decree of the court to which the appeal is preferred shall be[Order 42, rule 33.]

182[Subsidiary]Preparation andcontents of decree.[Order 42, rule 34.]decree to be sent tocourt whose decreeappealed from.[Order 42, rule 35.]Dismissal for want ofprosecution.CAP. 21 Civil Procedure [Rev. 2010dated, drawn up, sealed and signed as directed by rules 7, 8 and 9 of Order 21suit, and an entry of the judgment of the court to which the appeal is preferredshall be made in the register of civil suits.35. (1) Unless within three months after the giving of directions under rule13 the appeal shall have been set down for hearing by the appellant, therespondent shall be at liberty either to set down the appeal for hearingor to apply by summons for its dismissal for want of prosecution.(2) If, within one year after the service of the memorandum of appeal,the appeal shall not have been set down for hearing, the registrar shall on noticeto the parties list the appeal before a judge in chambers for dismissal.ORDER 43APPEALS FROM ORDERS[Order 43, rule 1.]Appeals from Orders.1. (1) An appeal shall lie as of right from the following Orders and rulesunder the provisions of section 75 (1) (h) of the Act—(a) Order 1 (parties to suits);(b) Order 2 (pleadings generally);(c) Order 3 (frame and institution of suit);(d) Order 4, rule 9 (return of plaint);(e) Order 7, rule 12 (exclusion of counterclaim);(f) Order 8 (amendment of pleadings);(g) Order 10, rule 11 (setting aside judgment in default of appearance).(h) Order 12, rule 7 (setting aside judgment or dismissal for nonattendance);(i) Order 15, rules 10, 12 and 18 (sanctions against witnesses andparties in certain cases);(j(k) Order 22, rules 25, 57, 61 (3) and 73 (orders in execution);(l) Order 23, rule 7 (trial of claim of third person in attachment of

Rev. 2010] Civil Procedure CAP. 21 183debts );[Subsidiary](m) Order 24, rules 5, 6 and 7 (legal representatives);(n) Order 25, rule 5 (compromise of a suit);(o) Order 26, rules 1 and 5(2) (security for costs);(p) Order 27, rules 3 and 10 (payment into court and tender);(q) Order 28, rule 4 (orders in proceedings against the Government);(r) Order 34 (interpleader);(s) Order 36, rules 5, 7 and 10 (summary procedure);(t) Order 39, rules 2, 4 and 6 (furnishing security);(u) Order 40, rules 1, 2, 3,7 and 11 (temporary injunctions);(v) Order 41, rules 1 and 4 (receivers);(w) Order 42, rules 3, 14, 21, 23 and 35 (appeals);(x) Order 45, rule 3 (application for review);(y) Order 50, rule 6 (enlargement of time);(z) Order 52, rules 4, 5, 6 and 7 (advocates);(aa) Order 53 (judicial review orders).(2) An appeal shall lie with the leave of the court from any other ordermade under these Rules.(3) An applications for leave to appeal under section 75 of the Act shallfrom, either orally at the time when the order is made, or within fourteen daysfrom the date of such order.both an order granting the relief applied for and an order refusing such relief.2. The rules of Order 42 shall apply, so far as may be, to appeals fromorders.3. Nothing in this Order shall apply to any adjudication which, as regardsthe court expressing it, conclusively determines the rights of the parties withregard to all or any of the matters in controversy in the suit.[Order 43, rule 2.]Procedure.[Order 43, rule 3.]Saving.

184[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 44PAUPER APPEALS[Order 44, rule 1.]Who may appeal as apauper.1. Any person entitled to prefer an appeal, who is unable to pay thefee required for the memorandum of appeal, may present an applicationaccompanied by a memorandum of appeal, and may be allowed to appeal as apauper, subject in all matters, including the presentation of such application,to the provisions relating to suits by paupers in so far as those provisions areapplicable:Provided that the court shall dismiss the application unless upon a perusalof the memorandum of appeal and of the record of the lower court, it sees reasonto think that the decree is contrary to law, or against the weight of the evidence.[Order 44, rule 2.]Inquiry intopauperism.2. The inquiry into the pauperism of the applicant may be made either bythe High Court or under the orders of the High Court by the court from whosedecision the appeal is preferred:Provided that, if the applicant was allowed to sue or appeal as a pauperin the court from whose decree the appeal is preferred, no further inquiry inrespect of his pauperism shall be necessary, unless the High Court sees causeto direct such inquiry.ORDER 45REVIEW[Order 45, rule 1.]Application forreview of decree ororder.1. (1) Any person considering himself aggrieved—(a) by a decree or order from which an appeal is allowed, but fromwhich no appeal has been preferred; or(b) by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which,after the exercise of due diligence, was not within his knowledge or could notbe produced by him at the time when the decree was passed or the order made,or on account of some mistake or error apparent on the face of the record, ormay apply for a review of judgment to the court which passed the decree ormade the order without unreasonable delay.(2) A party who is not appealing from a decree or order may apply for areview of judgment notwithstanding the pendency of an appeal by some otherparty except where the ground of such appeal is common to the applicant andthe appellant, or when, being respondent, he can present to the appellate courtthe case on which he applies for the review.[Order 45, rule 2.]2. (1) An application for review of a decree or order of a court, upon some

Rev. 2010] Civil Procedure CAP. 21 185ground other than the discovery of such new and important matter or evidenceas is referred to in rule 1, or the existence of a clerical or arithmetical mistakeor error apparent on the face of the decree, shall be made only to the judge whopassed the decree, or made the order sought to be reviewed.[Subsidiary]To whomapplications forreview may be made.(2) If the judge who passed the decree or made the order is no longerattached to the court, the application may be heard by any other judge who isattached to that court at the time the application comes for hearing.(3) If the judge who passed the decree or made the order is still attachedto the court but is precluded by absence or other cause for a period of 3 monthsnext after the application for review is lodged, the application may be heard bysuch other judge as the Chief Justice may designate.a review, it shall dismiss the application.(2) Where the court is of opinion that the application for review shouldbe granted, it shall grant the same:[Order 45, rule 3.]When court maygrant or rejectapplication.Provided that no such application shall be granted on the ground ofdiscovery of new matter or evidence which the applicant alleges was not withinhis knowledge, or could not be adduced by him when the decree or order waspassed or made without strict proof of such allegation.4. (1) Where the application for a review is heard by more than one judgeand the court is equally divided the application shall be dismissed.(2) Where there is a majority, the decision shall be according to theopinion of the majority.5. When an application for review is granted, a note thereof shall bemade in the register, and the court may at once re-hear the case or make such6. No application to review an order made on an application for a reviewof a decree or order passed or made on a review shall be entertained.[Order 45, rule 4.]Application wheremore than one judgehears.[Order 45, rule 5.]Re-hearing uponapplication granted.[Order 45, rule 6.]Bar of subsequentapplications.ORDER 46ARBITRATION UNDER ORDER OF A COURTANDOTHER ALTERNATIVE DISPUTE RESOLUTION1. Where in any suit all the parties interested who are not under disabilityagree that any matter in difference between them in such suit shall be referredto arbitration, they may, at any time before judgment is pronounced, apply tothe court for an order of reference.2. The arbitrator shall be appointed in such manner as may be agreed[Order 46, rule 1.]Parties to a suit mayapply for arbitration.(Order 46, rule 2.]

186[Subsidiary]Appointment ofarbitrator.[Order 46, rule 3.]Form of order.CAP. 21 Civil Procedure [Rev. 2010upon between the parties.3. (1) The court shall, by order, refer to the arbitrator the matter inreasonable for the making of the award, and shall specify such time in the order.(2) Where a matter is referred to arbitration, the court shall not, save in themanner and to the extent provided in this Order, deal with such matter in the suit.[Order 46, rule 4.]Provisions where twoor more arbitrators.4. (1) Where the reference is to two or more arbitrators provision shallbe made in the order for a difference of opinion among the arbitrators—(a) by the appointment of an umpire; or(b) by declaring that, if the majority of the arbitrators agree, the decisionof the majority shall prevail; or(c) by empowering the arbitrators to appoint an umpire; or(d) otherwise as may be agreed between the parties, or, if they cannotagree, as the court may determine.reasonable for the making of his award in case he is required to act.[Order 46, rule 5.]Power to appointarbitrator.5. (1) In any of the following cases, namely—(a) where the parties cannot agree within thirty days with respect tothe appointment of an arbitrator, or the person appointed refuses(b) where the arbitrator or umpire—(i) dies; or(ii) refuses or neglects to act or becomes incapable of acting; ornot return at an early date; or(c) where the arbitrators are empowered by the order of reference toappoint an umpire and fail to do so,any party may serve the other or the arbitrators as the case may be with a writtennotice to appoint an arbitrator or umpire.(2) If, within seven clear days after such notice has been served or suchfurther time as the court may in each case allow, no arbitrator or no umpire isappointed, as the case may be, the court may, on application by the party whogave the notice, and after giving the other party an opportunity of being heard,

Rev. 2010] Civil Procedure CAP. 21 187appoint an arbitrator or umpire, or make an order superseding the arbitration,and in such case shall proceed with the suit.6. Every arbitrator or umpire appointed under rule 4 or rule 5 shall havethe like powers as if his name had been inserted in the order of reference.7. (1) The court shall issue the same processes to the parties and witnesseswhom the arbitrator or umpire desires to examine as the court may issue insuits tried before it.(2) Persons not attending in accordance with such process or making anyother default, or refusing to give their evidence, or are guilty of any contemptto the arbitrator or umpire during the investigation of the matters referred, shallbe subject to the like disadvantages, penalties, and punishments, by order ofthe court on the representation of the arbitrator or umpire, as they would incurfor the like offences in suits tried before the court.time for the making of the award, whether or not at the date of the agreementtime has expired, and whether or not an award has been made since the expiryof the time allowed.[Subsidiary][Order 46, rule 6.]Power of arbitratoror umpire appointedby court.[Order 46, rule 7.]Summoningwitnesses anddefault.[Order 46, rule 8.]Extension of time formaking award.(2) On application made by a party, arbitrator or umpire on notice, thecourt may either extend the time for the making of the award, whether or notat the date of the application time has expired, and whether or not an award hasbeen made since the expiry of the time allowed, or make an order supersedingthe arbitration in which case it shall proceed with the suit.9. Where an umpire has been appointed he may enter on the referencein the place of the arbitrators—(a) if they have allowed the appointed time to expire without makingan award, or[Order 46, rule 9.]Where umpire mayarbitrate in lieu ofarbitrators.(b) if they have delivered to the court or to the umpire a notice inwriting stating that they cannot agree.10. Where an award in a suit has been made, the persons who made it shallany depositions and documents which have been taken and proved before them.reading the award.(2) The award shall be read within thirty days of the notice.read by the registrar to such of the parties as are present.[Order 46, rule 10.]Award to be signed,[Order 46, rule 11.]Time for reading

188CAP. 21 Civil Procedure [Rev. 2010[Subsidiary][Order 46, rule 12.]Statement of specialcase by arbitrators orumpire.[Order 46, rule 13.]Costs of arbitration.[Order 46, rule 14.]Power to modify orcorrect award.12. Upon any reference by an order of the court, the arbitrator or umpiremay, and shall if so directed by the court, state the award as to the whole orany part thereof in the form of a special case for the opinion of the court, andthe court shall deliver its opinion thereon, and shall order such opinion to beadded to and form part of the award.of an arbitration save to the extent to which an award of costs has been properlymade by the arbitrator.14. The court may modify or correct an award—(a) where it appears that a part of the award is upon a matter not referredto arbitration and such part can be separated from the other part anddoes not affect the decision on the matter referred;(b) where the award is imperfect in form, or contains an obvious errorwhich can be amended without affecting such decision; or(c) where the award contains a clerical mistake or an error arising froman accidental slip or omission.[Order 46, rule 15.]Power to remit forreconsideration.15. (1) The court may remit an award, or any other matter referred toarbitration, for reconsideration by the same arbitrator or umpire upon such(a) where the award has left undetermined any of the matters referredto arbitration, or where it determines any matter not referred toarbitration, unless such matter can be separated without affectingthe determination of the matters referred;(b effect; or(c) where an objection to the legality of the award is apparent on theface of it.[Order 46, rule 16.]Grounds for settingaside award.(2) The order remitting the award shall state the time within which itshall be reconsidered, and rule 8 shall apply to such reconsideration as it appliesto an award.16. (1) The court may set aside an award on the following grounds only—(a) corruption or misconduct of the arbitrator or umpire; or(b) that either party has fraudulently concealed any matter which heought to have disclosed, or has wilfully misled or deceived thearbitrator or umpire.(2) An Application under this rule shall be served on the arbitrator or

Rev. 2010] Civil Procedure CAP. 21 189umpire.[Subsidiary](3) Where an award is set aside under this rule the court shall supersedethe arbitration and shall proceed with the suit.17. An application may be made under rules 13, 14, 15 and 16 withinrule 11 within thirty days of that date.[Order 46, rule 17.]Time for application.18. (1) The court shall on request by any party with due notice to otherparties enter judgment according to the award—[Order 46, rule 18.]Judgment on award.(a) when no application has been made within the time allowed byrule 17; or(b) when an application under rules 13, 14 or 16 has been heard anddetermined and no other application has been made within the timeallowed by rule 17; or(c) when an application under rules 14, 15 and 16 has been heard andrefused and no leave to appeal against such refusal has been grantedwithin fourteen days of that refusal.(2) Upon the judgment so entered a decree shall follow and no appealshall lie from such decree except in so far as the decree is in excess of, or notin accordance with the award.(3) Order 49, rule 2 shall apply to the entry of judgment under subrule (1).19. Form Nos. 28 to 32 of Appendix A shall be used for the respectivepurposes therein mentioned.20. (1) Nothing under this order may be construed as precluding the courtfrom adopting and implementing, of its own motion or at the request of theparties, any other appropriate means of dispute resolution (including mediation)for the attainment of the overriding objective envisaged under sections 1A and1B of the Act.[Order 46, rule 19.]Forms.[Order 46, rule 20.]Alternative disputeresolution.(2) The court may adopt an alternative dispute resolution and shall makesuch orders or issue such directions as may be necessary to facilitate such meansof dispute resolution.(3) Where a court mandated mediation adopted pursuant to this rule fails,the court shall forthwith set the matter down for hearing and determination inaccordance with the Rules.

190[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 47DISTRICT REGISTRIES[Order 47, rule 1.]Institution of suits inHigh Court.[Order 47, rule 2.]Schedule of DistrictRegistries and areas.[Order 47, rule 3.]a District Registry.that court situate in Nairobi or in a District Registry.2. (1) There shall be District Registries and Deputy Registrars of the HighCourt at the places and for the areas set out in the Schedule in Appendix G.(2) The Chief Justice may by notice in the Gazette amend the Schedule tosubrule (1) by the addition or deletion of any area, place of Registry or DistrictRegistrar or by the variation of any area.in that Registry.[Order 47, rule 4.]registry remain therewhen all defendantsreside within thatarea.[Order 47, rule 5.]Proceedings againstthe Government.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 DistrictRegistry whereof a suit has been instituted, all proceedings shall be taken inunder rule 8.5. Notwithstanding anything in rule 4, in any civil proceedings against theGovernment the defendant shall for the purposes of this Order be deemed neitherto reside nor to carry on business within the district of any District Registry.[Order 47, rule 6.]Place of trial.Registry of the High Court shall be tried in such place as the court may direct;suit instituted in a District Registry shall be tried by the High Court sitting inthe area of such District Registry.(2) The court may of its own motion or on the application of any partyto a suit and for cause shown order that a case be tried in a particular place tobe appointed by the court:Provided always that in appointing such particular place for trial the courtshall have regard to the convenience of the parties and of their witnesses andto the date on which such trial is to take place, and all the other circumstancesof the case.[Order 47, rule 7.]All preliminary stepstaken before the7. In a suit proceeding in a District Registry all formal steps preliminaryto the trial and all interlocutory applications shall, in the absence of a judge, bemade and taken before the District Registrar; and when such suit is ready for trial

Rev. 2010] Civil Procedure CAP. 21 191it may be set down for hearing before a judge sitting at the place of the Registry.8. (1) Any person affected by any order or decision of a District Registrarmade in any preliminary step or upon an interlocutory application may appeal toa judge; and such appeal may be made notwithstanding that the order or decisionwas in respect of a proceeding or matter as to which the District Registrar hadjurisdiction only by consent.[Subsidiary]District Registrar.[Order 47, rule 8.]Appeal from decisionof District Registrar.(2) Such appeal shall be by way of endorsement upon the record by theDistrict Registrar at the request of any party within fourteen days from themaking of such order or decision, and the record bearing such endorsementshall forthwith be sent to the registrar of the High Court who shall give suchdirections for the hearing of the appeal as he may consider reasonable.(3) The hearing of an appeal under this rule shall be before a judge inchambers.9. A District Registrar with regard to suits tried in his area shall haveany Rules of Court, and all such rules shall apply to the taxation of costs by aDistrict Registrar.10. An appeal from a decree or order of a subordinate court to the High subordinate court is situate; and the District Registrar shall, upon the paymentand forward the papers to the High Court Registry in that area for hearing anddisposal.[Order 47, rule 9.]Taxations in DistrictRegistries.[Order 47, rule 10.]Appeals fromsubordinate courts.ORDER 48MISCELLANEOUS1. (1) Every process issued under these Rules shall be served at theexpense of the party on whose behalf it is issued unless the court otherwisedirects.(2) The court fee chargeable for such service shall be paid within a time2. All orders, notices and documents required by these Rules to be givento or served on any person shall, save where other provision is made, be servedin the manner provided for the service of summons.3. Forms used for the purposes of this Act shall, with such variationas the circumstances of each case may require, be those to be found in theAppendices to these Rules, and such other forms as may from time to timeapproved by the High Court.[Order 48, rule 1.]Process to be servedat expense of partyissuing.[Order 48, rule 2.]Service of Orders,notices anddocuments.[Order 48, rule 3.]Use of forms.

192[Subsidiary][Order 48, rule 4.]Special rules ofprocedure.CAP. 21 Civil Procedure [Rev. 20104. Any special rules of procedure not contained in these Rules whichwith these Rules, prevail and be deemed to govern the procedure in the mattertherein mentioned.ORDER 49SPECIAL POWERS OF REGISTRARS[Order 49, rule 1.]Registrar to be[Order 49, rule 2.]When Judgmentmay be entered byRegistrar.1. Wherever in these Rules it is provided that any ministerial act or thingmay be done by the court, that act or thing may be done by the registrar or byJustice by writing under his hand.2. Judgment may, on application in writing, be entered by the registrar or,empowered by the Chief Justice by writing under his hand, in the followingcases:(a) under Order 10: (consequence of non-appearance, default ofdefence and failure to serve);(b) in all other cases in which the parties consent to judgment beingentered in agreed terms; or(c) under Order 25, rule 3 (costs, where suit withdrawn or discontinued).[Order 49, rule 3.]Consent orders.[Order 49, rule 4.]No judgment againstGovernment indefault of pleadingwithout leave ofcourt.[Order 49, rule 5.]Execution may beordered by Registrar.[Order 49, rule 6.]Registrar a CivilCourt.3. Any order may, by consent of the parties evidenced in writing, beauthorised in writing by the Chief Justice.4. Notwithstanding anything contained in rule 2, in any proceedingsagainst the Government no judgment for the plaintiff shall be entered in defaultof appearance or pleading without the leave of the court, and any applicationfor such leave shall be served by notice of motion served not less than sevendays before the return day.5. Formal orders for attachment and sale of property and for the issue ofnotices to show cause on applications for arrest and imprisonment in executionof a decree of the High Court may be made by the registrar or, in a subordinatethe Chief Justice by writing under his hand, but in the event of any objectionbeing taken to the proceedings thereunder, all further proceedings shall bebefore a judge.6. For the purposes of rules 2, 3 and 4 a registrar or, in a subordinate court,

Rev. 2010] Civil Procedure CAP. 21 1937. (1) The Registrar may—(a) give directions under Order 42 rule 12 and Order 51 rule 8;[Subsidiary][Order 49, rule 7.]Hearing ofapplications.(b) hear and determine an application made under the following Ordersand rules—(i) Order 1, rules 2, 8, 10, 17 and 22;(ii) Order 2, rules 1 and 10;(iii) Order 3,5 and 9;(iv) Order 6;(v) Order 7, rules 16 and 17 (2);(vi) Order 8;(vii) Order 10, rules 1 and 8;(viii) Order 20;(ix) Order 21, rule 12;(x) Order 22 other than under rules 28, and 75;(xi) Order 23, 24, 25, 26, 27, 28, 30, 31 and 33; and(xii) Order 42, rule 14.(2) An appeal from a decision of the registrar under the Orders referredto in subrule (1) shall be to a judge in chambers.(3) The memorandum of the appeal, setting out the grounds of the appealORDER 50TIME1. 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, andprocedure under these Rules, such time shall be computed by calendar monthsunless otherwise expressed.[Order 50, rule 1.]Month meanscalendar month.2. Where any limited time less than six days from or after any date orevent 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[Order 50, rule 2.]Exclusion of Sundaysand public holidays.

194[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010public holiday shall not be reckoned in the computation of such limited time.[Order 50, rule 3.]Time expiring onclosed.3. Where the time for doing any act or taking any proceeding expires on aact or proceeding cannot be done, or taken on that day, such act or proceedingshall so far as regards the time of doing or taking the same, be held to be duly[Order 50, rule 4.]When time does notrun.4. Except where otherwise directed by a judge for reasons to be recordedthe thirteenth day of January in the year next following, both days included,shall be omitted from any computation of time (whether under these Rules oror the doing of any other act:Provided that this rule shall not apply to any application in respect of atemporary injunction.[Order 50, rule 5.]Time for givingsecurity for costs,when not to bereckoned.[Order 50, rule 6.]Power to enlargetime.5. The day on which an order for security for costs is served, and thetime thenceforward until and including the day on which such security is givenshall not be reckoned in the computation of time allowed to plead, or take anyother proceeding in the cause or matter.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 thejustice of the case may require, and such enlargement may be ordered althoughthe application for the same is not made until after the expiration of the timeappointed or allowed:Provided that the costs of any application to extend such time and ofany order made thereon shall be borne by the parties making such application,unless the court orders otherwise.[Order 50, rule 7.]Enlargement of timeby consent.[Order 50, rule 8.]Computation of days.[Order 50, rule 9.]Time of day ofservice.other document of any kind whatsoever may be enlarged by consent in writingof the parties or their advocates without application to the court.8. In any case in which any particular number of days not expressed tobe clear days is prescribed under these Rules or by an order or direction of theof the last day.9. (1) This rule applies to pleadings, notices, summonses (other thansummonses on plaints), orders, rules and other proceedings.(2) Service shall normally be effected on a weekday other than Saturday(3) For the purpose of computing any period of time subsequent to service

Rev. 2010] Civil Procedure CAP. 21 195[Subsidiary](athan Friday or Saturday is deemed to have been effected on thefollowing day;(bhave been effected on the following Monday.ORDER 51APPLICATIONS1. All applications to the court shall be by motion and shall be heard inopen court unless the court directs the hearing to be conducted in chambers orunless the rules expressly provide.2. Any application such as is referred to in section 25 (2) of theGovernment Proceedings Act, shall be made in the manner prescribed in rule 1.3. No motion shall be made without notice to the parties affected thereby:proceeding in the ordinary way would or might entail irreparable or seriousmischief, 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 partyaffected by such order may move to set it aside.[Order 51, rule 1.]Procedure.[Order 51, rule 2.]Applications undersection 25 (2) ofthe Governmentproceedings Act.Cap. 40[Order 51, rule 3.]Notice to parties.4. Every notice of motion shall state in general terms the grounds of the5. If upon the hearing of any application, the court is of opinion thatbeen given ought to have had such notice, the court may adjourn the hearingthereof in order that such notice may be given upon such terms, if any, as the[Order 51, rule 4.]Contents of notice.[Order 51, rule 5.]Dismissal oradjournments forwant of notice.6. The hearing of any application may from time to time be adjourned7. A plaintiff may, without special leave, cause to be served anyapplication or notice of any petition or summons upon any defendant who,having been duly served with a summons to enter an appearance, has failed toappear within the time limited for that purpose.[Order 51, rule 6.]Adjournment ofhearing.[Order 51, rule 7.]Service of notice ondefendant servedwith summons to

196CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]enter appearance butnot appearing.[Order 51, rule 8.]Transfer from courtto chambers.[Order 51, rule 9.]Transfer fromchambers to court.[Order 51, rule 10.]Provision underwhich application ismade to be stated.8. Notwithstanding anything contained in these Rules, the court may inany case direct that any business be disposed of in chambers which it thinksmay be more conveniently disposed of in chambers than in court.9. Any judge may adjourn into court any application made to him atchambers which he deems more convenient to be considered in court.10. (1) Every order, rule or other statutory provision under or by virtueof which any application is made must ordinarily be stated, but no objectionshall be made and no application shall be refused merely by reason of a failureto comply with this rule.(2) No application shall be defeated on a technicality or for want of formthat does not affect the substance of the application.[Order 51, rule 11.]Costs and otherrelief.11. (1) It shall not be necessary in an originating summons, applicationor other process to ask for costs, or for general or other relief, which may begranted by the court as it thinks just.(2) Unless the court otherwise orders for special reasons to be recorded,costs awarded upon an originating summons, applications or other process shallbe taxed only at the conclusion of the suit.[Order 51, rule 12.]When application aredeemed to be made.[Order 51, rule 13.]Signature onapplication andservice.12. All applications or other process shall be deemed to have been made13. (1) An application taken out in any proceedings need only be signedby the advocate representing the applicant, or the applicant himself if acting inperson, and need not be signed by or on behalf of the court.(2) Every application shall bear at the foot the words— mentioned such order will be made and proceedings taken as the court may(3) The application shall be served on respondent together with the listof authorities, if any not less than seven clear days before the date of hearing.[Order 51, rule 14.]Grounds ofopposition toapplication in HighCourt.t any one or a combination of the following documents -(a) a notice preliminary objection: and/or;(b

Rev. 2010] Civil Procedure CAP. 21 197(c) a statement of grounds of opposition;[Subsidiary](2) the said documents in subrule (1) and a list of authorities, if anythe date of hearing.of opposition has been served under subrule (1) may, with the leave of the court,application may be heard ex parte.15.The court may set aside an order made ex parte.16. The court may, in its discretion, limit the time for oralsubmissionsby the parties or their advocates or allow written submissions.[Order 51, rule 15.]Setting aside ex parteorder.[Order 51, rule 16.]Court may limit timefor submission.ORDER 52THE ADVOCATES ACT1. In this Order—[Order 52, rule 1.]Interpretation.Cap.16. established under section 57 of the Advocates Act;2. (1) A petition of appeal to the Chief Justice under section 26 (2) of theAct shall have annexed to it a copy of the decision of the registrar appealed from.(2) Every petition of appeal shall be served on the Society which shallhave the right to be heard.Cap. 18.[Order 52, rule 2.]Appeals to the ChiefJustice.(3) A petition of appeal to the Chief Justice under section 28 (6) or 41(2) of the Act shall be presented within one month after the applicant has been3. (1) Any application under section 45 of the Act shall be intituled in(2) An application under section 45 (2) of the Act shall be served onthe advocate.[Order 52, rule 3.]Applicationswith respect toremuneration.

198[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(3) An application under section 45 (4) of the Act shall be served on theguardian, committee or trustee as the case may be.(4) An application under section 45 (5) of the Act shall be served on theparty and on the advocate or the advocate’s legal personal representatives asthe case may be.[Order 52, rule 4.]Power to orderadvocate to deliveraccounts anddocuments.4. (1) Where the relationship of advocate and client exists or has existedthe court may, on the application of the client or his legal personal representative,make an order for—(a) the delivery by the advocate of a cash account;(b) the payment or delivery up by the advocate of money or securities;(c) the delivery to the applicant of a list of the money or securitieswhich the advocate has in his possession or control on behalf ofthe applicant;(d) the payment into or lodging in court of any such money orsecurities;(e) the delivery up of papers and documents to which the client isentitled.(2) Applications under this rule shall be by originating summons,(3) If the advocate alleges that he has a claim for costs the court maymake such order for the taxation and payment, or securing the payment, thereof[Order 52, rule 5.]Application fortaxation by thirdparties.[Order 52, rule 6.]Application forcharging order.[Order 52, rule 7.]Application for orderfor enforcement of anundertaking.5. (1) An application under section 50 (1) of the Act shall be by originating(2) The summons shall be served on the advocate and on the partychargeable with the bill.6. (1) An application for a charging order under section 52 of the Act shall(2) The application shall be served on the client.7. (1) An application for an order for the enforcement of an undertakinggiven by an advocate shall be made—(a) if the undertaking was given in a suit in the High Court, by summonsin chambers in that suit; or

Rev. 2010] Civil Procedure CAP. 21 199(b) in any other case, by originating summons in the High Court.(2) Save for special reasons to be recorded by the judge, the order shall in8. (1) A memorandum of appeal under section 62 (1) or section 73 (1)(2) Unless the court otherwise orders, the persons to be served with thememorandum of appeal shall be the society and every party to the proceedingsbefore the Disciplinary Committee.(3) A person who has not been served with the memorandum of appealbut who desires to be heard in opposition to the appeal may be heard if the courtconsiders him a proper person to be heard.9. (1) An appellant under section 62 (1) or section 73 (1) of the Act mayserving it on every party to the appeal and on the society.(2) Where an appeal has been discontinued under sub-rule (1) it shall betreated as having been dismissed with an order for the payment by the appellantof the costs of and incidental to the appeal.10. (1) An originating summons under this Order shall be made returnablebe served on all parties at least seven clear days before the return date.ORDER 53[Subsidiary][Order 52, rule 8.]Title and service ofappeal.[Order 52, rule 9.]Discontinuance ofappeal.[Order 52, rule 10.]Procedure.APPLICATIONS FOR JUDICIAL REVIEW1. (1) No application for an order of mandamus, prohibition or certiorarishall be made unless leave therefor has been granted in accordance with this rule.(2) An application for such leave as aforesaid shall be made ex parte toa judge in chambers, and shall be accompanied by a statement setting out thename and description of the applicant, the relief sought, and the grounds on[Order 53, rule 1.]Applicationsfor mandamus,prohibition andcertiorari to be madeonly with leave.(3) The judge may, in granting leave, impose such terms as to costs andinsurance bond from a reputable institution.(4) The grant of leave under this rule to apply for an order of prohibition

200[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010or an order of certiorari shall, if the judge so directs, operate as a stay of theproceedings in question until the determination of the application, or until thejudge orders otherwise:Provided that where the circumstances so require, the judge may directthat the application be served for hearing inter partes before grant of leave.Provided further that where the circumstances so require the judge may directthat the question of leave and whether grant of leave shall operate as stay maybe heard and determined separately within seven days.[Order 53, rule 2.]Time for applying forcertiorari in certaincases.[Order 53, rule 3.]Application to be bynotice of motion.2. Leave shall not be granted to apply for an order of certiorari to removeany judgment, order, decree, conviction or other proceeding for the purpose of itsbeing quashed, unless the application for leave is made not later than six monthsafter the date of the proceeding or such shorter period as may be prescribed byany Act; and where the proceeding is subject to appeal and a time is limitedby law for the bringing of the appeal, the judge may adjourn the applicationfor leave until the appeal is determined or the time for appealing has expired.3. (1) When leave has been granted to apply for an order of mandamus,prohibition or certiorari, the application shall be made within twenty-one daysby notice of motion to the High Court, and there shall, unless the judge grantingleave has otherwise directed, be at least eight clear days between the service ofthe notice of motion and the day named therein for the hearing.(2) The notice shall be served on all persons directly affected, and where itrelates to any proceedings in or before a court, and the object is either to compelto quash them or any order made therein, the notice of motion shall be serveddate of service on, all persons who have been served with the notice of motionought to be served under the provisions of this rule has not been served, the(4) If on the hearing of the motion the High Court is of the opinion that anyperson who ought to have been served therewith has not been served, whether ornot he is a person who ought to have been served under the foregoing provisionsof this rule, the High Court may adjourn the hearing, in order that the noticemay be served on that person, upon such terms (if any) as the court may direct.[Order 53, rule 4]Statements and4. (1) Copies of the statement accompanying the application foraccompanying the application for leave shall be supplied on demand and nogrounds shall, subject as hereafter in this rule provided, be relied upon or anyrelief sought at the hearing of the motion except the grounds and relief set outin the said statement.(2) The High Court may on the hearing of the motion allow the said

Rev. 2010] Civil Procedure CAP. 21 201application, and where the applicant intends to ask to be allowed to amend hisany proposed amendment of his statement, and shall supply on demand copies[Subsidiary](3) Every party to the proceedings shall supply to any other party, on5. On the hearing of any such motion as aforesaid, the applicant shallhave the right to begin.6. On the hearing of any such motion as aforesaid, any person who desiresto be heard in opposition to the motion and appears to the High Court to be aproper person to be heard shall be heard, notwithstanding that he has not beenserved with the notice or summons, and shall be liable to costs in the discretionof the court if the order should be made.[Order 53, rule 5.]Applicant to haveright to begin.[Order 53, rule 6.]Right to be heard inopposition.7. (1) In the case of an application for an order of certiorari to removeany proceedings for the purpose of their being quashed, the applicant shall notquestion the validity of any order, warrant, commitment, conviction, inquisitionor record, unless before the hearing of the motion he has lodged a copy thereofsatisfaction of the High Court.(2) Where an order of certiorari is made in any such case as aforesaid,the order shall direct that the proceedings shall be quashed forthwith on theirremoval into the High Court.ORDER 54[Order 53, rule 7.]Provisions as toorders of certiorarifor the purposeof quashingproceedings.REVOCATION AND TRANSITIONAL PROVISIONS1. The Civil Procedure Rules are revoked.2. In all proceedings pending whether preparatory or incidental to, orconsequential upon any proceedings in court at the time of the coming into forceof these rules, the provisions of these rules shall thereafter apply, but withoutprejudice to the validity of anything previously done:[Order 54 Rule 1.]Revocation of CivilProcedure Rules.Sub. leg.Order 54 Rule 2.]Transitionalprovisions.Provided that:(a) If, and in so far as it is impracticable in any such proceedings toapply the provisions of these Rules, the practice and procedureheretofore obtaining shall be followed;(b practice notes or directions as to the procedure to be adopted.

202CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]APPENDIXAPPENDIX APROCESSNo. 1Third Party Notice(O. 1, r. 15)In the .......................................................... CourtCIVIL CASE No. .................... OF 20.........Between A.B. ....................................................................................................................., Plaintiffand C.D. .........................................................................................................................., Defendantand E.F. .........................................................................................................................., Third Party(Issued pursuant to the order of the court dated................................................................, 20..........)To: E.F of...........................................................................................................................( address)Take notice that this action has been brought by the plaintiff against the defendant. In it the plaintiffclaims against the defendant in accordance with the attached plaint.The defendant claims against you (here state nature of claim against third party, for instancestate the grounds of the claim).(*) And take notice that if you wish to dispute the plaintiff’s claim against the defendant, or thedefendant’s claim against you, you must appear within .................................days after the serviceof this notice on you, inclusive of the day of service, otherwise you will be taken to admit theplaintiff’s claim against the defendant and the defendant’s claim against you and you will be boundby any judgment given in the suit.Dated the ..................................................................................day of ........................, 20 ..............(Signed) G.H.,Advocate for the Defendant C.D.Note.-* Delete this paragraph if the notice is served on a party who has already appeared in the suit.

Rev. 2010] Civil Procedure CAP. 21 203No. 2[Subsidiary]Request for Particulars0. 2 r. 10(Title)The plaintiff (or defendant) in this suit requires the following particulars of the defence (plaint,or other pleading) dated the ........................................ day of..........................., 20..........................1. Of paragraph ............................................................................... - (specify particulars required)2. Of paragraph ................................................................................. - (specify particulars required)3. Of paragraph ................................................................................ - (specify particulars required)etc. ....................................................................................................................................supplied.G.H., Advocate for the plaintiff (or defendant).To E.F., Advocate for the defendant (or plaintiff)._______________No. 3Particulars(O. 2, r. 10 (6))(Title)The defendant (or plaintiff) in answer to the Request for Particulars dated the ...................... dayof ......................................................................, 20............................., gives particulars as follows -1. Of paragraph ................................................................................... - (specify particulars given)2. Of paragraph ..................................................................................... - (specify particulars given)3. Of paragraph .................................................................................... - (specify particulars given)etc. ....................................................................................................................................E.F., Advocate for the defendant (or plaintiff).To G.H., Advocate for the plaintiff (or defendant)._______________

204CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]No. 4(O. 5. r. 15)(Title)I...........................................................................of...........................................an advocate/a(1) On ........................................... ........ , 20 .............. ... at ......................(time) Iserved the summons in this case on at (place) by tendering a copy thereof to him/her and requiringa signature on the original. He/She signed/refused to sign the summons. He/She was personallywas the defendantat ..............................(time) I served the summons on.......................................... (name)an adult member of the family of the defendant who is residing with him/her.the outer door of................................................being the house in which he/she ordinarily resides/carries on business/personally works for gain. I was accompanied by .............................................(4) (Otherwise specify the manner in which the summons was served).SWORN by the said ...............................................................this .............................................day.............................................of ................................................................, 20.......................Before me..........................................................................................A Commissioner of Oaths/Magistrate._______________No. 5Substituted Service by Advertisement(O.5, r. 17)To: ..................................................................................................................................................of ...................................................................................................................................................

Rev. 2010] Civil Procedure CAP. 21 205[Subsidiary]No. ............of 20 ............, in which you are named as defendant. Service of the summons on youhas been ordered by means of this advertisement. A copy of the summons and the plaint may beobtained from the court at ............................................ (insert postal address of registry).And further take notice that, unless you enter an appearance within ................ days, the case willbe heard in your absence._______________No. 6Notice of Summons(O. 5, r. 26 (2))To .........................................................................................................................................(name)of........................................................................................................................................(address)No. ............of 20........ in which you are named as defendant. Service of the summons on youwas ordered to be by this notice.A copy of the summons and the plaint may be obtained from the court at (insert postal addressof registry).Unless you enter an appearance within .................days , the case will be heard in your absence._______________No. 7Letter Forwarding Request for Service Abroad(O. 5, r. 29 (a))Affairs and begs to enclose a notice of a writ of summons issued in an action ............................................................................................. versus ...................................................................... pursuantto order, out of the High Court for transmission to the Ministry of Foreign Affairs in (name ofcountry) with the request that the same may be served personally upon (name of defendant towith the usage or practice of the courts of (name of country) in proving service of legal process.The Chief Justice begs further to request that in the event of efforts to effect personal service ofthe said notice of writ proving ineffectual the government or court of the said country be requested

206[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010No. 8Request For Service Abroad(O. 5, r. 29(b))(Title of Action)I (or we) hereby request that a notice of writ of summons in this action be transmitted through theproper channel to (name of country) for service (or substituted service) on the defendant (naminghim) at (address of defendant) or elsewhere in (name of country).And I (or we) hereby personally undertake to be responsible for all expenses incurred in respectI (or we) undertake to pay the same to the ............................ and to produce the receipt of suchDated this...................................................day of .............................................., 20......._______________....................................................(Signature of Advocate)No. 9Order to Bespeak Request for Substituted Service Abroad(O. 5, r. 29 (d))(Title of Action)It is ordered that the plaintiff be at liberty to bespeak a request for substituted service of notice ofthe writ of summons herein on the defendant ................................... at .........................................or elsewhere in (name of country) and that the said defendant have ...................................... daysDated this ...................... day of ........................................, 20.........._______________No. 10Letter Forwarding Request for Substituted Service(O. 5, r. 29 (e))

Rev. 2010] Civil Procedure CAP. 21 207and begs to enclose a notice of a writ of summons in the case of ..................................................... versus ..................................... in which the plaintiff has obtained an order of the High Court ofbe served by substituted service on the defendant ......................................... at ............................................ in (name of country).[Subsidiary]The Chief Justice requests that the said notice of writ and order may be forwarded to the properauthority in (name of country) with the request that the same may be transmitted by post addressedto the defendant ....................... at ............................. (the last known place of abode or the placeof business ) of the said defendant, or there delivered in such manner as may be consistent withthe usage or practice of the courts of (name of country) for service of legal process where personalthe practice of the courts of (name of country) in proving service of legal process._______________No. 11(O. 5, r. 32 (e))certify that the documents annexed hereto are as follows:(1) The original letter of request for service of process received from the court or tribunalat ................................ in the .............................. of .................. in the matter of .................versus................................................... and;(2) The process received with such letter of request; and(3) The evidence of service upon ....................................., the person named in such letter of request,And I certify that such service so proved, and the proof thereof, are such as are required by thethe proof thereof.And I certify that the costs of effecting such service amounts to the sum of £ .....Dated this.......................................... day of............................, 20 ..........._______________

208[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010No. 12Memorandum of Appearance(O. 6, r. 2 (1))(Title)Please enter an appearance for1 .......................................................................................................sued as 2.............................................................................................................................................Dated this ................................................ day of ............................................................, 20............Signed 3.............................................................................................................................................Whose address for service is 4 .........................................................................................................and whose postal address is 5................................................................................................Notes:1 Give the full name of the defendant appearing.2 Give the name by which the defendant is described in the summons if this differs from thedefendant’s full name.3 To be signed by the advocate, or by the defendant or his recognised agent if he appears inperson.4 Give the physical address which is either the place of business of the advocate withincommunications for him may be left.if he appears in person.N.B.—Additional notes for the guidance of defendants appearing are given on the back of thisform. Please read them carefully. The form may have to be returned if any of the informationrequired is omitted or given incorrectly. The delay may result in judgment being entered againstthe defendant. If judgment is entered, the defendant or his advocate may have to pay the costs ofapplying to set it aside.ADDITIONAL NOTES(Back of form)2 Where the defendant is an individual trading in a name other than his own, he must appear

Rev. 2010] Civil Procedure CAP. 21 209[Subsidiary]3 Where the defendant is a corporation the appearance must be either by an advocate or by4 If the defendant has no defence or admits the plaintiff’s claim, appearance will delay judgmentand may increase the costs payable by the defendant. Any proposal for the payment of adebt by installments or otherwise must be made direct to the plaintiff or his advocate andnot to the court.5 Where appearance is to be entered for a third party substitute, for references to the defendant,references to the third party.______________No. 13Request for Judgment(O. 10, r. 4)(Title)The plaintiff requests judgment against the defendant(s)1...............................................................who has (have) failed to appear (or as the case may be).This request is for interlocutory judgment for Sh........................... (with or without interest as thecase may be) and costs. 2Dated, etc.,(Signed)Advocate for the PlaintiffNotes______________No. 14Application for Execution of Decree(O. 22, r. 6)In the Court ...............................................................

210[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010I, ............................................., decree-holder, hereby apply for execution of the decree herein belowset forth:-......................................... of 20.......................1Name of suitA.B. – PlaintiffC.D. – Defendant2Names of parties...................... 20.......3Date of decreeNo.4Whether any appeal preferred, from decreeNone5(Payment or adjustment made, if any)6(Previous application, if any, with date and result)7(Amount with interest due upon the decree or other relief granted thereby together with particularsof any cross-decree)As awarded in the decree ......................................................... S. C.Subsequently incurred...............................................................Total8

Rev. 2010] Civil Procedure CAP. 21 211Amount of costs, if any, awarded[Subsidiary]Against the defendant, C.D.9(Against whom to be executed.)(When attachment and sale of movable property is sought.)I pray that the total amount of shillings .....................................(together with interest on the principalsum up to date of payment) and the costs of taking out this execution, be realized by attachmentand sale of defendant’s movable property as per annexed list and paid to me.(When attachment and sale of immovable property is sought.)I pray that the total amount of shillings ......................................(together with interest on the principalsum up to date of payment) and the costs of taking out this execution, be realized by attachment and10(Mode in which the assistance of the court is required.)I, ......................................................., declare that what is stated herein is true to the best of myknowledge and belief.(Signed) .......................................... Decree-holder.Dated the .................................................... day of .............................., 20.............(When attachment and sale of immovable property is sought.)The undivided one-third share of the judgment-debtor in a house situated in the village of ...................................................... value shillings 80 and bounded as follows:East by G’s house; west by H.’s house, south by public road, north by private lane and J.’s house.I, ............................................................................................., declare that what is stated in theabove description is true to the best of my knowledge and belief, and so far as I have been able to(Signed) ....................................................... Decree-holder._______________

212[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010No. 15Notice by Advertisement of Sale(O. 22, r. 57 (6))(Title)(Set out description of property, encumbrances, etc.)By Order of the ............................................................................... Court and pursuant to ajudgment for Sh. ................................................................................. (insert Broker’ s nameand address), will sell the above property by public auction at .............. .... (insert place of sale)on ............................................................. day the ....... ............. day of ..... ........., 20.........., at.................................... o’clock._______________(Signed)........................................................Advocate (or Broker)No. 16Garnishee Order (Absolute) where Garnishee Owes More than Judgment-debt(O. 23, r. 1(4))In the ................................................................ Courtat .............................................Civil Suit No. ....................................... of 20...........Between................................................................................................................................... Decree-holderand............................................................................................................................... Judgment-debtorand............................................................................................................................................GarnisheeTo,The above-named .................................................................................... Judgment-debtor.and

Rev. 2010] Civil Procedure CAP. 21 213[Subsidiary]To,The above-named ...........................................................................Garnishee.Upon hearing ..................................................... (advocate for judgment-creditor) and upon readingthe order nisi made herein dated the ............................................................. day of ......................................., 20......, whereby it was ordered that all debts owing or accruing due from the garnisheeto the judgment-debtor should be attached to answer a decree passed against the judgment-debtorin favour of the decree-holder in the ......................................... Court ....................on the ................................................ day of ........................, 20.., in the above-named suit for the sum of shillings................ debt and shillings ..................... costs (together with the costs of the garnishee proceedings)on which decree the sum of shillings ................................ remained due and unpaid: And it appearingthat the garnishee is indebted to the judgment-debtor in the sum of shillings ....................... It isordered that the garnishee do forthwith pay the decree-holder shillings ......................... being sodecree and costs together with the costs of the garnishee proceedings, and that in default thereofexecution may issue for the same.And that the garnishee be at liberty to retain shillings ..........................................for his costs of thisapplication out of the balance of the debt due from him to the judgment-debtor.Given under my hand and the seal of the court this ................................................................. dayof ............................, 20..................................................., Judge._______________No. 17Garnishee Order (Absolute) where Garnishee Owes less thanJudgment-debt(O. 23, r. 4)In the .................... Courtat ....................Civil Suit No. .......... of 20....Between............................................................................................................................. Decree-holderand

214[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010............................................................................................................................... Judgment-debtorand...........................................................................................................................................GarnisheeTo,The above-named ................................................................................................. Judgment-debtor.To,andThe above-named ............................................................................................................Garnishee.Upon hearing .................................... (advocate for judgment-creditor) and upon reading the ordernisi made herein dated the ..................................... day of ..................................., 20...whereby itwas ordered that all debts owing or accruing due from the garnishee to the judgment-debtor shouldbe attached to answer a decree passed against the judgment- debtor in favour of the decree-holderin the ....................................... Court.................on the ......................... day of ........................., 20..,in the above-named suit for the sum of shillings .............................................. debt and shillings............................ costs (together with the costs of the garnishee proceedings) on which decree thesum of shillings .......................... remained due and unpaid: And it appearing that the garnishee isindebted to the judgment-debtor in the sum of shillings .........................................It is ordered that the garnishee (after deducting therefrom shillings ..........................for his costsof this application) do forthwith pay to the decree-holder shillings ............................................the debt due from the garnishee to the judgment-debtor, and that in default thereof execution mayissue for the same:And that the sum of shillings .........................................., the costs of the decree-holder of thisapplication be added to the amount of the decree and be retained out of the money recovered bythe decree-holder under this order and in priority to the amount of the decree.Given under my hand and the seal of the court this ................... day of ......................, 20..........................................., Judge.No. 18Garnishee Order (Absolute) Where Garnishee Owes Less Than Judgment-Debt(O. 23, r. 4)In the................................................................................................Court

Rev. 2010] Civil Procedure CAP. 21 215................................................................................................at[Subsidiary]Civil Suit No. ..............................of 20......................BetweenDecree-holderandJudgment-debtorandGarnisheeTo,The above-named ..................................................................................................Judgment-debtorandTo,The abovenamed...............................................................................................................................Garnishee.Upon hearing .............................................................(advocate for judgment-creditor) andupon reading the order nisi made herein dated the .....................................................day of .................................., 20whereby it was ordered that all debts owing or accruing due from the garnishee to the judgmentdebtorshould be attached to answer a decree passed against the judgment- debtor in favour of thedecree-holder in the.................................................................. Court..............................................on the day of ......................................., 20 ................, in the above-named suit for the sum ofshillings debt and shillings costs (together with the costs of the garnishee proceedings) on whichdecree the sum of shillings remained due and unpaid:And it appearing that the garnishee is indebted to the judgment-debtor in the sum of .....................................................shillingsIt is ordered that the garnishee (after deducting therefrom.................................................... shillingsfor his costs of this application) do forthwith pay to the decree-holder .............................................................shillings the debt due from the garnishee to the judgment-debtor, and that in defaultthereof execution may issue for the same:And that the sum of shillings, the costs of the decree-holder of this application be added to theamount of the decree and be retained out of the money recovered by the decree-holder under thisorder and in priority to the amount of the decree.Given under my hand and the seal of the court this ..................day of.................., 20..........Judge

216[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010No. 19Notice of Payment into Court(O. 27, r. 1(3))(Title)Take notice that the defendant .................................................................... (name) has paid thesum of Sh. ............................................................................................................... into court.____________________No. 20Notice of payment into Court(O. 27, r.1(3))The said sum is in satisfaction of the cause of action (or all the causes or action) in respect of whichthe plaintiff claims (after taking into account and satisfying the above- named defendant’s cause ofaction for ................................................ in respect of which he counterclaims).(or)The said sum is in satisfaction of the following causes of action in respect of which the plaintiffclaims, namely ...........................................................................(after taking into account andsatisfying the above-named defendant’s cause of action for ........................................................................... and in respect of which he counterclaims).(or)Of the said sum, Sh. ........................................ is in satisfaction of the plaintiff’s cause(s) of action for.................................................(after taking into account and satisfying the above-named defendant’scause of action for.............................................................. in respect of which he counterclaims) andSh. ................ is in satisfaction of the plaintiff’s cause(s) of action for .................................... (aftertaking into account, etc., ...................).(and where appropriate)And take notice that the said sum of Sh. ........................................................... has been paid intocourt pursuant to the Exchange Control Act being the amount of Sh.............................................. dueto ................................................. (name) being a person resident outside the Scheduled Territories(or a person acting by order of (or on behalf of) a person resident outside the Scheduled Territories)together with (or less) Sh. ..................................... costs.Dated, etc., ..............................................(Signed) ..............................Advocate for ............................................

Rev. 2010] Civil Procedure CAP. 21 217No. 21Notice of Acceptance of Payment into Court(O. 27, r. 2)(Title)[Subsidiary]Take notice that the plaintiff accepts the sum of Sh. ..............................paid into court by thedefendant ............................................. (name) in satisfaction of the cause of action (or all the causesof action (or the following causes of action) (specify them))-At any time after fourteen days after receipt of this notice the court may give judgment for theplaintiff’s costs incurred up to the time of payment into court unless you apply to the court bysummons for an order disallowing the whole or any part thereof.Dated, etc............................................................_______________No. 22(O. 29, r. 3)(Title)By a judgment (decree) (order) of this court dated the .................................. day of ..................,20........., it was adjudged (decreed) (ordered)(Give particulars of the judgment, decree or order.)I hereby certify that the amount payable to ..................... by ...................in pursuance of thesaid judgment (decree) (order) is ............................... (*together with interest thereon from the.......................... day of ............................ until the date of payment, and together with costs whichcosts from the......................................day of .............................., 20...., until the date of payment).in respect of costs.)* Omit so far as not required.

218CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]No. 23(O. 29, r. 3)(Title)By a judgment (decree) (order) of this court dated the .................... day of......................., 20........,it was adjudged (decree) (ordered):(Give particulars of the judgment, decree or order.)I hereby certify that the costs payable to .................... by .....................in pursuance of the said..... (*Interest is payable on the said costs from the ........................ day of ....................., 20............,until the date of payment.)*Omit where not required.Signature of Judge_______________No. 24(O. 36, r. 9)(Title)I, .............................................................. of ....................................make oath and say as follows:1. The defendant(s) is (are jointly) and truly indebted to..............................................................in the sum of Sh. .....................................................................................................................for ........................................and was (were) so indebted at the commencement of this suit.2. I verily believe that there is no defence to this suit.3. The facts herein deposed to are within my own knowledge and I am duly authorised by theSworn, etc. ................................................................_______________

Rev. 2010] Civil Procedure CAP. 21 219No. 25Order for Leave to Defend(O. 36, r. 9)(Title)[Subsidiary]Upon hearing ............. and upon reading ...... ................................ is ordered that the defendant beat liberty to defend this suit .............................. (state conditions, if any) ...................... and that thecosts of this application be ...........................Dated this ........................... day of ............, 20................._______________No. 26General Form of Originating Summons(O. 37, r. 14)In the .................................................................................... Court at ...............................................In the matter of ................................................................................................................................BetweenA.B. .................................................................................................................................... PlaintiffandC.D. ............................................................................. DefendantLet ................................ of .............................. within ............................ days after service of thissummons on him enter an appearance to this summons which is issued on the application of .................................................... who claims to be (state the nature of the claim) ....................................................... for the determination of the following questions (state the questions).Dated the ................................................... day of ............................................................, 20..........This summons was taken out by ...................................... advocate for the above-named...............................Appearance may be effected personally or by advocate.NOTE. - If the defendant does not enter an appearance within the time above-mentioned such ordermay be made and proceedings taken as the court may think just and expedient._______________

220CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]No. 27General Form of Originating Summons not Inter Parties(O. 37, r. 14)....................................................................................20............... (Here put the year and number)In the matter of the Trusts of the Will of A.B. and in the matter of ............................ (or as the casemay be).Let .............................................. of ....................................................... within ................. days afterservice of this summons on him, inclusive of the day of such service, cause an appearance to beentered for him to this summons, which is issued upon the application of ................................... of.................................. for an order that (state the object of the application).Dated the .....................................This summons was taken out by ............................................. of ........................., advocate for theabove-named .........................The respondent may appear thereto by entering appearance either personally or by advocate at theNOTE. - If the respondent does not enter appearance within the time and at the place abovementioned, such order will be made and the proceedings taken as the judge may think just andexpedient._______________No. 28Application for an Order of Reference(O. 46, r. 19)(Title)1. This suit is instituted for (state nature of claim).2. The matter in difference between the parties is (state matter of difference).3. The applicants being all the parties interested have agreed that the matter in differencebetween them shall be referred to arbitration.4. The applicants therefore apply for an order of reference.

Rev. 2010] Civil Procedure CAP. 21 221A.B.[Subsidiary]C.D.Dated the ................................. day of ..................................., 20............(Note.-If the parties are agreed as to the arbitrator or arbitrators it should be so stated and awritten statement signed by the arbitrator or arbitrators to the effect that he or they are willing to_______________No. 29Order of Reference (O. 46, r. 19)(Title)Upon reading the application presented on the ............................. day of ..............,19......, it isordered that the following matter in difference arising in this suit, namely................ be referredis hereby appointed to be umpire; and such arbitrators are to make their award in writing on orbefore the .......................day of ....................., 20......, and in case the said arbitrators not agreeingin an award, the said umpire is to make his award in writing within .........................month’s afterthe time during which it is within the powers of the arbitrators to make an award shall have ceased.Liberty to apply.Given under my hand and the seal of the court this .................. day of .................., 20 ......._______________..........................., Judge.No. 30Order for appointment of arbitrator(O. 46, r. 19)(Title)Whereas by an order dated the .................................... day of ............................., 20......., (state orderof reference and death, refusal, etc., of arbitratorthe place of X (deceased, or as the case may beunder the said order, and it is ordered that the award of the said arbitrators be made on or beforethe .................day of ................, 20.......Given under my hand and the seal of the court this .................... day of..................., 20...... ._______________..............................., Judge.

222[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010No. 31Special Case(O. 46, r. 19)(Title)In the matter of an arbitration between A.B., of ......................... and C.D., of ................. the followingcase is stated for the opinion of the court—(Here state the facts concisely in numbered paragraphs.)The questions of law for the opinion of the court are -First, whether ........................................................................................................................Secondly, whether .................................................................................................................Dated the ...............................................day of ........................................., 20................X._______________No. 32A ward(O. 46, r. 19)(Title)In the matter of an arbitration between A.B., of ................................................ and C.D., of.............................:Whereas in pursuance of an order of reference made by the court of ....................... and dated the......................... day of ......................, 20..., the following matter in difference between A.B. andC.D., namely .................... has been referred to us for determination:Now we, having duly considered the matter referred to us, do hereby make our award as follows:We award—(1) That .............................................................................................................................................(2) That ............................................................................................................................................X.

Rev. 2010] Civil Procedure CAP. 21 223[Subsidiary]Dated the............................................................. day of........................................, 20.................___________________

224CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]Appendix BPRE TRIAL QUESTIONARE(Order 11, rule 2)QUESTION1. Identify the relevant track for the case2. Have you or your advocate made contact with the other party of partiesin these proceedings with a view to settling the case or to narrow downthe issues3. Have given full disclosure of documents to the other party or parties4. If not within what period can disclosure be given?5. Is there need for inspection of any documents or copies thereof and isso how soon can you do the inspection?necessary interrogatories.7. If defendant, have you answered the interrogatories by attaching the‘statements?expert?10. Have you agreed on a single expert to prepare joint report?11. If the answer to question 10 is in the negative do you require directionsrelating to the payment of the expert’ s fee and expenses?12. In which disciplines do you require an expert?13. Have the experts agreed on their respective reports? If not have theyheld without prejudice discussions in order to narrow down the issueswith a summary of the reasons for any disagreements?counter- schedule?ANSWERNONONONONONONONONONONONONONO

Rev. 2010] Civil Procedure CAP. 21 225[Subsidiary]experts’ joint statement of issues including witness statements?16. Have you considered whether oral evidence of any witness can be dispensedwith?17. Have you so far discharged your duty of co-operating with the other party orparties in preparing the case expeditiously including attempting to limit theissues in dispute?18. Areyouawarethatyouareunderanobligationsto inform the court immediately ifthe case is settled?19. Have you prepared a bundle documents for trial together with a case summary?to be used in the case of list 3 days before the hearing date day?NONONONONONOAppendix CCIVIL CASE NO.......................................... OF 20...............BETWEEN............................................................................................PLAINTIFF(S)AND.....................................................DEFENDANT(S)ANDCASE CONFERENCE ORDER(Order 11 rule 4)UPON HEARING THE PARTIES HEREIN at the above-mentioned Court on day of............,20 ....At.........a.m the Honourable Judge in Chambers makes the following PRE-TRIAL DIRECTIONS:1. This case is allocatedFast TrackMulti-Track

226CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]SETTLEMENT OUT OF COURT2. The Plaintiff/each party shall give to the other parties standard disclosure of documents byserving copies together with disclosure statement by 5.00 p.m on................... day of ......................20...........INSPECTION3. Inspection of documents be done by 5.00 p.m on ............day of.........................20INTERROGATORIESWITNESS STATEMENTSEXPERT EVIDENCE1. The expert evidence on the issue of .................................. Shall be limited to the writtenreport of a single expert jointly instructed by the parties.2. If the parties cannot agree by 5.00pm on .......................... who the expert is to be or aboutpayment of his/her fees, either party may apply to the court for further directions.3. Unless the parties agree in writing or the court otherwise orders, the fees and expenses ofthe single expert shall be paid by the parties equally.4. The plaintiff has permission to use in evidence the written reports(s) of an expert in thediscipline of/each of the following disciplines.............................. and any such reports(s)to be served by 5.00pm on................................5. The Defendant has permission to use in evidence the written report of an expert in thediscipline of/each of the following disciplines......................... And any such report to beserved by 5.00 pm on..................................6. The written reports of the experts shall be agreed if possible and if not agreed, the expertsdo hold without prejudice discussions and do prepare and serve a statement of issues agreedand issues not agreed with a summary of the reasons for any disagreement by 5.00pmon................. DAMAGES by 5.00pm on.....................................GENERAL DIRECTIONDISCHARGE AND VARIATION OF THIS ORDER4. Any part affected by this order may apply within 10 days of service of it upon him/her/it to have it varied, set aside or stayed. Dated this.................................day of..........................20...............

Rev. 2010] Civil Procedure CAP. 21 227NOTE: Failure to comply with the directions may result in the case being adjourned and inthe party of fault having to pay the costs. The parties are always encouraged to try andsettle the case by negotiation with each other. The court must be informed if the case issettled before the hearing.[Subsidiary]Appendix DTRIAL CONFERENCE QUESTIONNAIRE(Order 11 rule 6)QUESTION(a planned.ANSWER(b) Have you considered the most expeditious wayof introducing evidence at the trial and have you(c) Do you intend to amend your pleadings and if sowhich pleadings?(d) Do you seek the admission of witness statement orstatements without calling the maker and why doyou seek this order?(e) Do you seek an order for the production of a copyof the statement where the original is unavailable?(f evidence?(g) Do you intend to apply for the examinations of anywitness by issue of commission outside court and for theadmission of any such examination as evidence in court?(h) Have you exchanged expert reports and have youdiscussed with other party or parties the admissibility ofthe reports at the trial?(i) Do you intend to produce any exhibit and if so, have youconsidered its admissibility?(j) Have you considered using alternative dispute resolutionmethods in this case?

228CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]PLAINTIFF/ADVOCA TE________________________________________________________DEFENDANT/ADVOCA TE______________________________________________________Appendix E(Title as in the pleadings)TRIAL CONFERENCE MEMORANDUM(Order 11 Rule 7(4)(a))The following are the results of the Trial Conference held on the .........day of........20......before........................................Judge/Magistrate.(a)(b)(c)(d)(e)(f)(g)(h)(i)We the undersigned do hereby bind ourselves by this memorandum and undertake to comply witheach and every clause hereof.

Rev. 2010] Civil Procedure CAP. 21 229Appendix FNo. 1Notice to Person to Whom the Court Considers Should be Added as Co-PlaintiffTo (name, description and place of residence).(O.1, r. 10)(Title)[Subsidiary]Whereas ...................................................................... has instituted the above suit against..........................for...........................................and whereas it appears necessary that you shouldbe added as a plaintiff in the said suit in order to enable the court effectually and completely toadjudicate upon and settle all the questions involved.Take notice that you should on or before the................ Day of................... 20........, signify to thiscourt whether you consent to be so added.Give under my hand and the seal of the court, this....................day of ............,20................................................................................ Judge_____________No. 2Order For Transmission of Summons to be Served on a Prisoner(O. 5, r. 18)(Title)Under the provisions of Order V, rule 18, of Civil Procedure Rules a summons in duplicate is herewithof the said summons to be served upon the said defendant and to return the original to this courtsigned by the said defendant, with a statement of service endorsed thereon by you.__________________........................................................................Judge

230[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010No. 3Order Fr Transmission of Summons To Be Served on a Public Servant or SoldierTo...............................(O. 5, r.19)(Title)Under the provisions of Order V, rule 19 (...........) of the Cicil Procedure Rules, a summonsin duplicate is herewith forwarded for service on the defendant, ........... who is stated to be servingdefendant and to return the original to this court signed by the said defendant, with a statement ofservice endorsed thereon by you.........................................................................Judge___________________No. 4(O22, r. 4)(Title)Number of suit and the court by which the decree was passed.1Names of parties.2Date of application for execution.3Number of the execution case.4Processes issued and dates of service thereof.5Costs of execution.6Sh. cts.Amount realised.7Sh. ctsHow the case is disposed of.8Remarks.9........................................................................Signature of Judge

Rev. 2010] Civil Procedure CAP. 21 231[Subsidiary]To ..............................No. 5Notice to Show Cause why Execution should not Issue(O. 22, r. 18)(Title)Whereas ............................................................ had made application to this court for execution ofdecree in Suit No. ........................................... of 20................ on the allegation that the said decreehas been transferred to him by assignment, this is to give you notice that you are to appear beforethis court .................................. on the ............................................ day of........................, 20.., toshow cause why execution should not be granted.Given under my hand and the seal of the court this ..............................day of ................, 20.........._______________No. 6Attachment in Execution. - Prohibitory Order where the Property Consists of shares in theCapital of a Corporation(O.22, r. 41)(Title)To:............................, defendant, and to ........................ Secretary of........................................Corporation.Whereas ........... has failed to satisfy a decree passed against ..........................on the ................ day of................, 19.., in Suit No. ................ of 19..........., in favour of ................, for shillings ................: Itis ordered that you, the defendant, be, and you are hereby, prohibited and restrained, until the furtherorder of this court, from making any transfer of ...................... shares in the aforesaid Corporation,namely ................., or from receiving payment of any dividends thereon; and you ................., theSecretary of the said Corporation, are hereby prohibited and restrained from permitting any suchtransfer or making any such payment.Given under my hand and the seal of the court this .............................. day of ..................., 20....._______________........................................................................Judge

232[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010No. 7Warrant of Committal(O. 22, r. 8)(Title)To .........................Whereas the under mentioned property has been decreed to..............., the plaintiff in this suit, andresisting (or obstructing) the said................ in obtaining possession of the property and whereasthe said ............................................ has made application to this court that the said .................. becommitted to prison.keep him imprisoned therein for the period of ......... days.Given under my hand and the seal of the court this ................................. day of ................, 20....._______________..................................Judge.To .................................................No. 8Summons to Legal Representative of a Deceased Defendant(O. 24, r. 4)(Title)Whereas the plaintiff.................. instituted a suit in this court on the .............. day of......................,19............ against the defendant........................ who has since died, and whereas the said plaintiffhas made an application to this court alleging that you are legal representatives of the said................,deceased, and desiring that you be made the defendant in his stead.Day of ..............19.... at........a.m to defend the said suit and, in default of your appearance on theGiven under my hand and the seal of the court this.................................. Day of.......................,20........................................................................Judge

Rev. 2010] Civil Procedure CAP. 21 233Appendix GAreaSCHEDULEPlace of Registry[Subsidiary]The Districts of Nandi, Elgeyo, Marakwet, Baringo andUasin- GishuThe Districts of Turkana, Trans-Nzoia and West Pokot.The Districts of Nakuru, Laikipia, Nyandarua, Samburu,Narok and Trans-Mara.The Districts of Meru, Isiolo, Marsabit and Moyale.The Districts of Nyeri, Murang’a and Nanyuki.The Districts of Bungoma and Mount Elgon.The District of BusiaMombasaMalindiEldoretNakuruMachakosMeruEmbu.Nyeri.BungomaBusia

234CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]G.N. 1756/2009.THE CONSTITUTION OF KENYATHE CIVIL PROCEDURE ACT(Cap. 21)PRACTICE DIRECTIONS RELATING TO THE FILING OF SUITS,APPLICATIONS AND REFERENCES IN PROPER COURTSIN EXERCISE of the powers conferred by section 65 (3) of theConstitution and in pursuance of sections 11 to 18 of the Civil Procedure Act,according to (a) the pecuniary jurisdiction of the court; (b) the place where thesubject matter or property is situate; (c) the place where the cause of actionarose; and (d) where the defendants or any of them resides or works for gain,the Chief Justice makes the following practice directions:1. The place of suing is to be determined in accordance with theprovisions of sections 11 to 18 of the Civil Procedure Act and not according tomust strictly observe the provisions as to the place of suing by allowing onlythose that comply with the law and rejecting those that do not. should exercise its authority under Order VII rule 9 of the Civil Procedure Rulesto return the plaint to be presented to the court in which the suit should havebeen instituted, without prejudice to any other powers that it may possess underthe law to strike out the pleadings as an abuse of the process of the Court. subordinate courts should be made at the High Court with correspondingSupervisory Jurisdiction according to the established judicial administrativedistricts as set out in the Schedule.4. All Judicial Review proceedings under Order LIII of the CivilProcedure Rules and Constitutional applications and references shall beserially registered in a Special register(s) for Judicial Review and constitutionalApplication and Reference matters in the appropriate Registry, and be heardby the High Court for the respective area on priority basis and without delay.5. All High Court stations are hereby directed to observe the provisionsof suits in the High Court Central Registry and in the District Registries and toensure their compliance and enforcement.

Rev. 2010] Civil Procedure CAP. 21 235SCHEDULE[Subsidiary]HIGH COURT AND THE RESPECTIVE MAGISTRATE’S COURT AREAS OF SUPERVISIONProvince High Court Station Magistrate Court areasNairobi Nairobi Law Courts Chief Magistrate’s Court,Makadara Magistrate’s Court, City Court,Children’s Court, Githunguri Magistrate’s Court,Limuru Magistrate’s Court, Gatundu Magistrate’s Court,Thika Magistrate’s Court,Nairobi Milimani Commercial Courts Magistrate’s Court Milimani,Coast Mombasa High Court Mombasa Magistrate’s Court,Tononoka Magistrate’s Court, Voi Magistrate’s Court,Wundanyi Magistrate’s Court,Taveta Magistrate’s Court, Mariakani Magistrate’s Court,Coast Malindi High Court Malindi Magistrate’s Court, Hola Magistrate’s Court,Lamu Magistrate’s Court,Garsen Magistrate’s Court,Rift Valley Nakuru High Court Nakuru Magistrate’s Court,Naivasha Magistrate’s Court,Molo Magistrate’s Court,Nyahururu Magistrate’s Court,Maralal Magistrate’s Court,Narok Magistrate’s Court, Sotik Magistrate’s Court,Bomet Magistrate’s Court,Rift Valley Eldoret High Court Eldoret Magistrate’s Court, Iten Magistrate’s Court, Eldama Ravine Magistrate’s Court,

236CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]Province High Court Station Magistrate Court areas Lodwar Magistrate’s Court,Central Nyeri High Court Nyeri Magistrate’s Court, Muran’ga Magistrate’s Court, Othaya Magistrate’s Court,Mukurweini Magistrate’s Court,Nanyuki Magistrate’s Court,Eastern Machakos High Court Machakos Magistrate’s Court, Tawa Magistrate’s Court, Makueni Magistrate’s Court,Makindu Magistrate’s Court, Mwingi Magistrate’s Court, Mutomo Magistrate’s Court,Eastern Meru High Court Meru Magistrate’s Court,Nkubu Magistrate’s Court,Chuka Magistrate’s Court,Tigania Magistrate’s Court,Maua Magistrate’s Court,Isiolo Magistrate’s Court,Marsabit Magistrate’s Court,Moyale Magistrate’s Court,Marimanti Magistrate’s Court,Eastern Embu High Court Embu Magistrate’s Court, Gichugu Magistrate’s Court,Wang’uru Magistrate’s Court,Baricho Magistrate’s Court,Siakago Magistrate’s Court,Runyenjes Magistrate’s Court, Hamisi Magistrate’s Court,Vihiga Magistrate’s Court,Butere Magistrate’s Court,

Rev. 2010] Civil Procedure CAP. 21 237Province High Court Station Magistrate Court areas[Subsidiary]Butali Magistrate’s Court,Mumias Magistrate’s Court,Western Bungoma High Court Bungoma Magistrate’s Court,Webuye Magistrate’s Court, Western Busia Sub-registry Sirisia magistrate’s Court,Busia Magistrate’s Court, Nyando Magistrate’s Court,Winam Magistrate’s Court,Tamu Magistrate’s Court,Maseno Magistrate’s Court,Siaya Magistrate’s Court,Ukwala Magistrate’s CourtBondo Magistrate’s Court, Nyamira Magistrate’s Court, Homabay Magistrate’s Court,Migori Magistrate’s Court,Rongo Magistrate’s Court,Oyugis Magistrate’s Court,Ndhiwa Magistrate’s Court,Ogembo Magistrate Court,North Eastern Garissa Sub- registry Garissa Magistrate’s Court,Wajir Magistrate’s Court,Mandera Magistrate’s Court.Gazette Notice No. 300 of 19th day of January, 2007 is revoked.Dated this 19th day of February, 2009.J. E. GICHERU,Chief Justice.

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