10th September, 2010 LEGAL NOTICE No. 151 - Kenya Law …

1 10th september , 2010 LEGAL NOTICE No. 151 THE CIVIL PROCEDURE ACT (Cap. 21) CIVIL PROCEDURE RULES, 2010 RULES UNDER SECTION 81 ARRANGEMENT OF RULES ORDER 1 PARTIES TO SUITS Rule 1 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 joint parties. 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 same interest. 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 for others. 14 Practice.

2 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 2 PLEADINGS GENERALLY Rule 1 Pleadings generally. 2 Formal requirements. 3 Facts, not evidence, to be pleaded. 4 Matters which must be specifically pleaded. 5 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.

3 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 3 FRAME AND INSTITUTION OF SUIT Rule 1 Commencement of suit and case track allocation. 2 Documents to accompany suit. 3 Register of civil suits and filing. 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 recovery of immovable property. 7 Claims by or against executor, administrator or heir. 8 Power of court to order separate trials. 9 Declaratory judgment. ORDER 4 PLAINT Rule 1 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.

4 6 Statement of relief claimed. 7 Relief founded on separate grounds. 8 Copies of plaint. 9 Return of plaint. ORDER 5 ISSUE AND SERVICE OF summons Rule 1 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 cannot be found. 15 Affidavit of service. 16 Examination of serving officer. 17 Substituted service.

5 18 Service on defendant in prison. 19 Service on public officers and soldiers. 20 Duty on person to whom the summons is sent. 21 Service out of Kenya . 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. 26 Order to fix time for entering appearance. 27 Service where defendant resides out of Kenya . 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. SERVICE OF FOREIGN LEGAL PROCESS IN Kenya 32 Procedure 33 General powers of the court. 34 Request for service from foreign country. ORDER 6 APPEARANCE OF PARTIES Rule 1 Time for appearance. 2 Mode of appearance. 3 Defendant s address for service.

6 4 Memorandum irregular, address fictitious. 5 Defendants appearing by same advocate. 6 Delivery of documents to address for service. ORDER 7 DEFENCE AND COUNTERCLAIM Rule 1 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.

7 ORDER 8 AMENDMENT OF PLEADINGS Rule 1 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. ORDER 9 RECOGNIZED AGENTS AND ADVOCATES Rule 1 Applications, appearance or acts in person, by recognized agent or 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 another party.

8 13 Withdrawal of advocate who has ceased to act for a party. ORDER 10 CONSEQUENCE OF NON-APPEARANCE, DEFAULT OF DEFENCE AND FAILURE TO SERVE Rule 1 Suits against infants and persons of unsound mind. 2 Affidavit of service upon non-appearance. 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 11 PRE-TRIAL DIRECTIONS AND CONFERENCES Rule 1 Application 2 Pre-trial questionnaire 3 Case conference 4 Case conference order 5 Settlement conference order 6 Trial conference questionnaire 7 Trial conference 8 Trial conference order 9 Case managers.

9 ORDER 12 HEARING AND CONSEQUENCE OF NON-ATTENDANCE Rule 1 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 13 ADMISSIONS Rule 1 NOTICE of admission of case. 2 Judgment on admissions. ORDER 14 PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS Rule 1 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.

10 ORDER 15 ISSUES Rule 1 Framing of issues. 2 Materials from which issues may be framed. ORDER 16 SUMMONING AND ATTENDANCE OF WITNESSES Rule 1 summons to attend to give evidence or produce documents. 2 Expenses of witnesses to be paid into court on applying for summons . 3 Tender of expenses or notification of sum lodged. 4 Procedure where insufficient sum paid in. Expenses of witnesses detained more than one day. 5 Time, place, and purpose of attendance to be specified in summons . 6 summons to produce documents. 7 Power to require persons present in court to give evidence or produce document. 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.