Act No: CAP. 21
Act Title: CIVIL PROCEDURE
SUBSIDIARY LEGISLATION
Arrangement of Sections
CIVIL PROCEDURE RULES, 2010

ARRANGEMENT OF SECTIONS

RULES UNDER SECTION 81

ORDER 1 - PARTIES TO SUITS

1.

Who may be joined as plaintiffs [Order 1, rule 1.]

2.

Power of court to order separate trial [Order 1, rule 2.]

3.

Who may be joined as defendants [Order 1, rule 3.]

4.

Court may give judgment for or against one or more of joint parties [Order 1, rule 4.]

5.

Defendant need not be interested in all relief claimed [Order 1, rule 5.]

6.

Joinder of parties liable on same contract [Order 1, rule 6.]

7.

When plaintiff in doubt from whom redress to be sought [Order 1, rule 7.]

8.

One person may sue or defend on behalf of all in same interest [Order 1, rule 8.]

9.

Misjoinder and non-joinder [Order 1, rule 9.]

10.

Substitution and addition of parties [Order 1, rule 10.]

11.

Government proceedings [Order 1, rule 11.]

12.

Conduct of suit [Order 1, rule 12.]

13.

Appearance of one of several plaintiffs or defendants for others [Order 1, rule 13.]

14.

Practice [Order 1, rule 14.]

15.

Notice to third and subsequent parties [Order 1, rule 15.]

16.

Notice to Government as third party [Order 1, rule 16.]

17.

Default of appearance by third party [Order 1, rule 17.]

18.

Default of appearance by Government as third party [Order 1, rule 18.]

19.

Judgment against third party in default [Order 1, rule 19.]

20.

No judgment against Government without leave of the Court [Order 1, rule 20.]

21.

Judgment after trial against third party in default [Order 1, rule 21.]

22.

Appearance of third party and directions [Order 1, rule 22.]

23.

Costs [Order 1, rule 23.]

24.

Defendant claiming against a co-defendant [Order 1, rule 24.]

25.

Procedure [Order 1, rule 25.]

26.

Parties to provide contacts [Order 1, rule 26]

ORDER 2 - PLEADINGS GENERALLY

1.

Pleadings generally [Order 2, rule 1.]

2.

Formal requirements [Order 2, rule 2.]

3.

Facts not evidence, to be pleaded [Order 2, rule 3.]

4.

Matters which must be specifically pleaded [Order 2, rule 4.]

5.

Matter may be pleaded whenever arising [Order 2, rule 5.]

6.

Departure [Order 2, rule 6.]

7.

Particulars in defamation actions [Order 2, rule 7.]

8.

Particulars of evidence in mitigation [Order 2, rule 8.]

9.

Points of law [Order 2, rule 9.]

10.

Particulars of pleading [Order 2, rule 10.]

11.

Admissions and denials [Order 2, rule 11.]

12.

Denial by joinder of issue [Order 2, rule 12.]

13.

Close of pleadings [Order 2, rule 13.]

14.

Technical objection [Order 2, rule 14.]

15.

Striking out pleadings [Order 2, rule 15.]

16.

Pleading to be signed [Order 2, rule 16.]

17.

Proceedings in rem [Order 2, rule 17.]

ORDER 3 - FRAME AND INSTITUTION OF SUIT

1.

Commencement of suit and case track allocation [Order 3, rule 1.]

2.

Documents to accompany suit [Order 3, rule 2.]

3.

Register of civil suits and filing [Order 3, rule 3.]

4.

Suit to include the whole claim [Order 3, rule 4.]

5.

Joinder of causes of action [Order 3, rule 5.]

6.

Only certain claims to be joined with a suit for recovery of immovable property [Order 3, rule 6.]

7.

Claims by or against executor, administrator or heir [Order 3, rule 7.]

8.

Power of court to order separate trials [Order 3, rule 8.]

9.

Declaratory judgment [Order 3, rule 9.]

ORDER 4 - PLAINT

1.

Particulars of plaint [Order 4, rule 1.]

2.

Money suit [Order 4, rule 2.]

3.

Where the subject-matter of the suit is immovable property [Order 4, rule 3.]

4.

Capacity of parties [Order 4, rule 4.]

5.

Defendant’s interest and liability to be shown [Order 4, rule 5.]

6.

Statement of relief claimed [Order 4, rule 6.]

7.

Relief founded on separate grounds [Order 4, rule 7.]

8.

Copies of plaint [Order 4, rule 8.]

9.

Return of plaint [Order 4, rule 9.]

ORDER 5 - ISSUE AND SERVICE OF SUMMONS

1.

Issue of summons [Order 5, rule 1.]

2.

Duration and renewal of summons [Order 5, rule 2.]

3.

Service on a corporation [Order 5, rule 3.]

4.

Concurrent summons [Order 5, rule 4.]

5.

Delivery or transmission of summons for service [Order 5, rule 5.]

6.

Mode of service [Order 5, rule 6.]

7.

Service on several defendants [Order 5, rule 7.]

8.

Service to be on defendant in person or on his agent [Order 5, rule 8.]

9.

Mode of service on the Government [Order 5, rule 9.]

10.

Service on agent by whom defendant carries on business [Order 5, rule 10.]

11.

Service on agent in charge in suits for immovable property [Order 5, rule 11.]

12.

Service on agent or adult [Order 5, rule 12.]

13.

Person served to sign acknowledgment [Order 5, rule 13.]

14.

Procedure when defendant refuses to accept service or cannot be found [Order 5, rule 14.]

15.

Affidavit of service [Order 5, rule 15.]

16.

Examination of serving officer [Order 5, rule 16.]

17.

Substituted service [Order 5, rule 17.]

18.

Service on defendant in prison [Order 5, rule 18.]

19.

Service on public officers and soldiers [Order 5, rule 19.]

20.

Duty on person to whom the summons is sent [Order 5, rule 20.]

21.

Service out of Kenya [Order 5, rule 21.]

22.

Service of other process out of the jurisdiction [Order 5, rule 22.]

22A.

Internationally registered and recognized courier services [Order 5, rule 22A]

22B.

Electronic Mail Services (E-mail) [Order 5, rule 22B]

22C.

Mobile-enabled messaging Applications [Order 5, rule 22C]

23.

Service under contract [Order 5, rule 23.]

24.

Probate and marriage suits [Order 5, rule 24.]

25.

Application to be supported by evidence [Order 5, rule 25.]

26.

Order to fix time for entering appearance [Order 5, rule 26.]

27.

Service where defendant resides out of Kenya [Order 5, rule 27.]

28.

Notice in lieu of summons [Order 5, rule 28.]

29.

Service of notice of summons in a foreign country [Order 5, rule 29.]

30.

Extension of procedure to any order or notice [Order 5, rule 30.]

31.

Application to Government [Order 5, rule 31.]

ORDER – SERVICE OF FOREIGN LEGAL PROCESS IN KENYA

32.

Procedure [Order 5, rule 32.]

33.

General powers of the court [Order 5, rule 33.]

34.

Request for service from foreign country [Order 5, rule 34.]

ORDER 6 - APPEARANCE OF PARTIES

1.

Time for appearance [Order 6, rule 1.]

2.

Mode of appearance [Order 6, rule 2.]

3.

Defendant’s address for service [Order 6, rule 3.]

4.

Irregular memorandum, address fictitious [Order 6, rule 4.]

5.

Defendants appearing by same advocate [Order 6, rule 5.]

6.

Delivery of documents to address for service [Order 6, rule 6.]

ORDER 7 - DEFENCE AND COUNTERCLAIM

1.

Defence [Order 7, rule 1.]

2.

Defence of tender [Order 7, rule 2.]

3.

Set-off and counterclaim [Order 7, rule 3.]

4.

Set-off or counterclaim in proceedings by Government [Order 7, rule 4.]

5.

Documents to accompany defence or counterclaim [Order 7, rule 5.]

6.

Persons in representative capacity [Order 7, rule 6.]

7.

Pleading a counterclaim [Order 7, rule 7.]

8.

Title of counterclaim [Order 7, rule 8.]

9.

Claim against person not party [Order 7, rule 9.]

10.

Appearance by added parties [Order 7, rule 10.]

11.

Reply to counterclaim [Order 7, rule 11.]

12.

Exclusion of counterclaim [Order 7, rule 12.]

13.

Discontinuance, stay or dismissal of suit [Order 7, rule 13.]

14.

Judgment for balance [Order 7, rule 14.]

15.

Defence or set-off founded on separate grounds [Order 7, rule 15.]

16.

New ground of defence [Order 7, rule 16.]

17.

Subsequent pleadings [Order 7, rule 17.]

18.

Filing subsequent pleadings [Order 7, rule 18.]

19.

Register of documents [Order 7, rule 19.]

20.

Service of documents [Order 7, rule 20.]

ORDER 8 - AMENDMENT OF PLEADINGS

1.

Amendment of pleading without leave [Order 8, rule 1.]

2.

Application for disallowance of amendment [Order 8, rule 2.]

3.

Amendment of pleading with leave [Order 8, rule 3.]

4.

Amendment of originating process [Order 8, rule 4.]

5.

General power to amend [Order 8, rule 5.]

6.

Failure to amend after order [Order 8, rule 6.]

7.

Mode of amendment [Order 8, rule 7.]

8.

Procedure [Order 8, rule 8.]

ORDER 9 - RECOGNIZED AGENTS AND ADVOCATES

1.

Applications, appearances or acts in person, by recognized agent or by advocate [Order 9, rule 1.]

2.

Recognized agents [Order 9, rule 2.]

3.

Service of process on recognized agent [Order 9, rule 3.]

4.

Agent to accept service [Order 9, rule 4.]

5.

Change of advocate [Order 9, rule 5.]

6.

Service of notice of change of advocate [Order 9, rule 6.]

7.

Notice of appointment of advocate [Order 9, rule 7.]

8.

Notice of intention to act in person [Order 9, rule 8.]

9.

Change to be effected by order of court or consent of parties [Order 9, rule 9.]

10.

Procedure [Order 9, rule 10.]

11.

Power to act in person or through new advocate [Order 9, rule 11.]

12.

Removal of advocate from record at instance of another party [Order 9, rule 12.]

13.

Withdrawal of advocate who has ceased to act for a party [Order 9, rule 13.]

ORDER 10 - CONSEQUENCE OF NON-APPEARANCE, DEFAULT OF DEFENCE AND FAILURE TO SERVE

1.

Suits against infants and persons of unsound mind [Order 10, rule 1.]

2.

Affidavit of service upon non-appearance [Order 10, rule 2.]

3.

Failure to serve [Order 10, rule 3.]

4.

Judgment upon a liquidated demand [Order 10, rule 4.]

5.

Liquidated demand against several defendants [Order 10, rule 5.]

6.

Interlocutory judgment [Order 10, rule 6.]

7.

Interlocutory judgment where several defendants [Order 10, rule 7.]

8.

Judgment in default against the Government [Order 10, rule 8.]

9.

General rule where no appearance entered [Order 10, rule 9.]

10.

Default of defence [Order 10, rule 10.]

11.

Setting aside judgment [Order 10, rule 11.]

ORDER 11 - CASE MANAGEMENT AND CONFERENCES

1.

Application [Order 11, rule 1]

2.

Case Management Checklist [Order 11, rule 2]

3.

Case Management Conference [Order 11, Rule 3]

4.

Case Management Order [Order 11 rule 4.]

ORDER 12 - HEARING AND CONSEQUENCE OF NON-ATTENDANCE

1.

When neither party attends [Order 12, rule 1.]

2.

When only plaintiff attends [Order 12, rule 2.]

3.

When only defendant attends [Order 12, rule 3.]

4.

When some only of plaintiffs attend [Order 12, rule 4.]

5.

When some only of defendants attend [Order 12, rule 5.]

6.

Effect of dismissal [Order 12, rule 6.]

7.

Setting aside judgment or dismissal [Order 12, rule 7.]

ORDER 13 - ADMISSIONS

1.

Notice of admission of case [Order 13, rule 1.]

2.

Judgment on admissions [Order 13, rule 2.]

ORDER 14 - PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

1.

Endorsements on documents admitted in evidence [Order 14, rule 1.]

2.

Endorsements on copies of admitted entries in books, accounts, and records [Order 14, rule 2.]

3.

Record of admitted and return of rejected documents [Order 14, rule 3.]

4.

Court may order any document to be impounded [Order 14, rule 4.]

5.

Return of admitted documents [Order 14, rule 5.]

6.

Court may send for records of its own or of other Court [Order 14, rule 6.]

7.

Provisions as to documents applied to material objects [Order 14, rule 7.]

ORDER 15 - ISSUES

1.

Framing of issues [Order 15, rule 1.]

2.

Materials from which issues may be framed [Order 15, rule 2.]

ORDER 16 - SUMMONING AND ATTENDANCE OF WITNESSES

1.

Summons to attend to give evidence or produce documents [Order 16, rule 1.]

2.

Expenses of witnesses to be paid into court on applying for summons [Order 16, rule 2.]

3.

Tender of expenses or notification of sum lodged [Order 16, rule 3.]

4.

Procedure where insufficient sum paid in. Expenses of witnesses detained more than one day [Order 16, rule 4.]

5.

Time, place, and purpose of attendance to be specified in summons [Order 16, rule 5.]

6.

Summons to produce documents [Order 16, rule 6.]

7.

Power to require persons present in court to give evidence or produce document [Order 16, rule 7.]

8.

Summons, how served [Order 16, rule 8.]

9.

Time for serving summons [Order 16, rule 9.]

10.

Procedure where witness fails to comply with summons [Order 16, rule 10.]

11.

If witness appears attachment, may be withdrawn [Order 16, rule 11.]

12.

Procedure if witness fails to appear [Order 16, rule 12.]

13.

Mode of attachment [Order 16, rule 13.]

14.

Duty of persons summoned to give evidence or produce document [Order 16, rule 14.]

15.

When summoned persons may depart [Order 16, rule 15.]

16.

Application of rules 10 to 13 [Order 16, rule 16.]

17.

Procedure where witness apprehended cannot give evidence or produce document [Order 16, rule 17.]

18.

Consequence of refusal of a party to give evidence when called on by the Court [Order 16, rule 18.]

19.

Rules as to witnesses to apply to parties summoned [Order 16, rule 19.]

ORDER 17 - PROSECUTION OF SUITS

1.

Hearing from day to day [Order 17, rule 1.]

2.

Notice to show cause why suit should not be dismissed [Order 17, rule 2.]

3.

Procedure if parties fail to appear on day fixed [Order 17, rule 3.]

4.

Court may proceed notwithstanding either party fails to produce evidence [Order 17, rule 4.]

ORDER 18 - HEARING OF SUIT AND EXAMINATION OF WITNESSES

1.

Right to begin [Order 18, rule 1.]

2.

Statement and production of evidence [Order 18, rule 2.]

3.

Witnesses to be examined in open court [Order 18, rule 3.]

4.

How evidence to be recorded [Order 18, rule 4.]

5.

Any particular question and answer may be taken down [Order 18, rule 5.]

6.

Questions objected to and allowed by court [Order 18, rule 6.]

7.

Remarks on demeanour of witness [Order 18, rule 7.]

8.

Power to deal with evidence taken before another judge [Order 18, rule 8.]

9.

Power to examine witness immediately [Order 18, rule 9.]

10.

Court may recall and examine witness [Order 18, rule 10.]

11.

Power of court to inspect [Order 18, rule 11.]

ORDER 19 - AFFIDAVITS

1.

Power to order any point to be proved by affidavit [Order 19, rule 1.]

2.

Power to order attendance of deponent for cross-examination [Order 19, rule 2.]

3.

Matters to which affidavits shall be confined [Order 19, rule 3.]

4.

Deponent’s particulars [Order 19, rule 4.]

5.

Manner of drawing affidavit [Order 19, rule 5.]

6.

Striking out matter [Order 19, rule 6.]

7.

Irregularity in form of affidavit [Order 19, rule 7.]

8.

Affidavit sworn before suit filed [Order 19, rule 8.]

9.

Procedure [Order 19, rule 9.]

ORDER 20 - APPLICATION FOR AN ACCOUNT

1.

Order for accounts [Order 20, rule 1.]

2.

Order for accounts on counterclaim [Order 20, rule 2.]

3.

Procedure [Order 20, rule 3.]

4.

Orders by court [Order 20, rule 4.]

ORDER 21 - JUDGMENT AND DECREE

1.

Judgment, when pronounced [Order 21, rule 1.]

2.

Power to pronounce judgment written by another judge [Order 21, rule 2.]

3.

Judgment to be signed [Order 21, rule 3.]

4.

Contents of judgment [Order 21, rule 4.]

5.

Court to state its decision on each issue [Order 21, rule 5.]

6.

Judgment affecting registered title to land [Order 21, rule 6.]

7.

Contents of decree [Order 21, rule 7.]

8.

Preparation and dating of decrees and orders [Order 21, rule 8.]

9.

Costs [Order 21, rule 9.]

9A.

Party to file and serve letter as to costs [Order 21, rule 9A]

9B.

Respondent may admit, partially reject or wholly reject letter [Order 21, rule 9B]

9C.

Court to make determination within 14 days [Order 21, rule 9C.]

9D.

Court to be guided by Advocates (Remuneration) Order [Order 21, rule 9D]

10.

Decree for recovery of immovable property [Order 21, rule 10.]

11.

Decree for delivery of movable property [Order 21, rule 11.]

12.

Decree may direct payment by instalments [Order 21, rule 12.]

13.

Decree for possession and mesne profits [Order 21, rule 13.]

14.

Decree in administration suit [Order 21, rule 14.]

15.

Decree in suit for dissolution of partnership [Order 21, rule 15.]

16.

Decree in suit for account between principal and agent [Order 21, rule 16.]

17.

Special directions as to accounts [Order 21, rule 17.]

18.

Decree in suit for partition of property or separate possession of a share [Order 21, rule 18.]

19.

Decree where set-off is allowed [Order 21, rule 19.]

20.

Certified copies of judgment and decree to be furnished [Order 21, rule 20.]

ORDER 22 - EXECUTION OF DECREES AND ORDERS

1.

Modes of paying money under decree [Order 22, rule 1.]

2.

Payment out of court to decree-holder [Order 22, rule 2.]

3.

Lands situate in more than one jurisdiction [Order 22, rule 3.]

4.

Procedure where court desires that its own decree shall be executed by another court [Order 22, rule 4.]

5.

Court receiving copies of decree to file same without proof [Order 22, rule 5.]

6.

Application for execution [Order 22, rule 6.]

7.

Oral and written applications [Order 22, rule 7.]

8.

Application for attachment of movable property not in judgment-debtor’s possession [Order 22, rule 8.]

9.

Application for attachment of immovable property to contain certain particulars [Order 22, rule 9.]

10.

Power to require certified extract from Land Registries in certain cases [Order 22, rule 10.]

11.

Application for execution by joint decree-holders [Order 22, rule 11.]

12.

Application for execution by transferee of decree [Order 22, rule 12.]

13.

Procedure on receiving an application for execution of decree [Order 22, rule 13.]

14.

Execution in case of cross-decrees [Order 22, rule 14.]

15.

Execution in case of cross-claims under same decree [Order 22, rule 15.]

16.

Cross-decrees and cross-claims in mortgage suits [Order 22, rule 16.]

17.

Simultaneous execution [Order 22, rule 17.]

18.

Notice to show cause against execution in certain cases [Order 22, rule 18.]

19.

Procedure after issue of notice [Order 22, rule 19.]

20.

Process for execution [Order 22, rule 20.]

21.

Endorsement on process [Order 22, rule 21.]

22.

When court may stay execution [Order 22, rule 22.]

23.

Liability of judgment-debtor discharged [Order 22, rule 23.]

24.

Order of court which passed decree or of appellate court to be binding upon court applied to [Order 22, rule 24.]

25.

Stay of execution pending suit between decree-holder and judgment-debtor [Order 22, rule 25.]

26.

Decree for payment of money [Order 22, rule 26.]

27.

Decree for specific movable property [Order 22, rule 27.]

28.

Decree for specific performance or for an injunction [Order 22, rule 28.]

29.

Decree for immovable property [Order 22, rule 29.]

30.

Decree for delivery of immovable property when in occupancy of tenant [Order 22, rule 30.]

31.

Discretionary power to permit judgment-debtor to show cause against detention in prison [Order 22, rule 31.]

32.

Warrant for arrest to direct judgment-debtor to be brought up [Order 22, rule 32.]

33.

Subsistence allowance [Order 22, rule 33.]

34.

Proceedings on appearance of judgment-debtor in obedience to notice or after arrest [Order 22, rule 34.]

35.

Examination of judgment-debtor as to his property [Order 22, rule 35.]

36.

Attachment in case of decree for rent, or mesne profits, or other matter [Order 22, rule 36.]

37.

Attachment of movable property other than agricultural produce, in possession of judgment-debtor [Order 22, rule 37.]

38.

Attachment of agricultural produce [Order 22, rule 38.]

39.

Provisions as to agricultural produce under attachment [Order 22, rule 39.]

40.

Attachment of share and other property not in possession of judgment-debtor [Order 22, rule 40.]

41.

Attachment of share in movables [Order 22, rule 41.]

42.

Attachment of salary or allowance [Order 22, rule 42.]

43.

Attachment of partnership property [Order 22, rule 43.]

44.

Execution of decree against firm [Order 22, rule 44.]

45.

Attachment of negotiable instrument [Order 22, rule 45.]

46.

Attachment of property in custody of court [Order 22, rule 46.]

47.

Attachment of decree [Order 22, rule 47.]

48.

Attachment of immovable property [Order 22, rule 48.]

49.

Removal of attachment after satisfaction of decree [Order 22, rule 49.]

50.

Determination of attachment [Order 22, rule 50.]

51.

Objection to attachment [Order 22, rule 51.]

52.

Stay of execution [Order 22, rule 52.]

53.

Raising of attachment [Order 22, rule 53.]

54.

Notice of intention to proceed [Order 22, rule 54.]

55.

Power to order property attached to be sold and proceeds to be paid to person entitled [Order 22, rule 55.]

56.

Sale, by whom conducted and how made [Order 22, rule 56.]

57.

Notification of sale by public auction [Order 22, rule 57.]

58.

Time of sale [Order 22, rule 58.]

59.

Adjournment or stoppage of sale [Order 22, rule 59.]

60.

Defaulting purchaser answerable for loss on re-sale [Order 22, rule 60.]

61.

Decree-holder not to bid for or buy property without permission [Order 22, rule 61.]

62.

Restriction on bidding or purchase by officers [Order 22, rule 62.]

63.

Negotiable instruments and shares in corporations [Order 22, rule 63.]

64.

Sales by public auction [Order 22, rule 64.]

65.

Irregularity not to vitiate sale, but any person injured may sue [Order 22, rule 65.]

66.

Delivery of movable property, debts and shares [Order 22, rule 66.]

67.

Vesting order in case of other property [Order 22, rule 67.]

68.

Sale of immovable property [Order 22, rule 68.]

69.

Deposit by purchaser and re-sale on default [Order 22, rule 69.]

70.

Payment of purchase-money [Order 22, rule 70.]

71.

Procedure in default of payment [Order 22, rule 71.]

72.

Notification on re-sale [Order 22, rule 72.]

73.

Bid of co-sharer to have preference [Order 22, rule 73.]

74.

Application to set aside sale on deposit [Order 22, rule 74.]

75.

Application to set aside sale on ground of irregularity or fraud [Order 22, rule 75.]

76.

Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest [Order 22, rule 76.]

77.

Sale, when to become absolute or be set aside [Order 22, rule 77.]

78.

Return of purchase-money in certain cases [Order 22, rule 78.]

79.

Certificate to purchaser [Order 22, rule 79.]

80.

Delivery of property in occupancy of judgment-debtor [Order 22, rule 80.]

81.

Delivery of property in occupancy of tenant [Order 22, rule 81.]

82.

Resistance or obstruction to possession of immovable property [Order 22, rule 82.]

83.

Resistance or obstruction by judgment-debtor [Order 22, rule 83.]

84.

Resistance or obstruction by bona fide claimant [Order 22, rule 84.]

85.

Rules not applicable to transferee pendente lite [Order 22, rule 85.]

86.

Order conclusive subject to regular suit [Order 22, rule 86.]

ORDER 23 - ATTACHMENT OF DEBTS

1.

Order for the attachment of debts [Order 23, rule 1.]

2.

Attachment of deposits [Order 23, rule 2.]

3.

Effect of garnishee order [Order 23, rule 3.]

4.

Execution against garnishee [Order 23, rule 4.]

5.

Trial of liability of garnishee [Order 23, rule 5.]

6.

Claim of third person [Order 23, rule 6.]

7.

Trial of claim of third person [Order 23, rule 7.]

8.

Payment by or execution on the garnishee is a valid discharge [Order 23, rule 8.]

9.

Record of proceedings [Order 23, rule 9.]

10.

Costs of proceedings [Order 23, rule 10.]

ORDER 24 - DEATH AND BANKRUPTCY OF PARTIES

1.

No abatement by party’s death if right survives [Order 24, rule 1.]

2.

Procedure where one of several plaintiffs or defendants dies and right to sue survives [Order 24, rule 2.]

3.

Procedure in case of death of one of several plaintiffs or of sole plaintiff [Order 24, rule 3.]

4.

Procedure in case of death of one of several defendants or of sole defendant [Order 24, rule 4.]

5.

Determination of question as to legal representative [Order 24, rule 5.]

6.

When plaintiff’s bankruptcy bars suit [Order 24, rule 6.]

7.

Effect of abatement or dismissal [Order 24, rule 7.]

8.

Procedure in case of assignment before final order in suit [Order 24, rule 8.]

9.

Application of Order to appeals [Order 24, rule 9.]

10.

Application of Order to execution proceedings [Order 24, rule 10.]

ORDER 25 - WITHDRAWAL, DISCONTINUANCE AND ADJUSTMENT OF SUITS

1.

Withdrawal by plaintiff [Order 25, rule 1.]

2.

Discontinuance [Order 25, rule 2.]

3.

Costs [Order 25, rule 3.]

4.

Stay of subsequent suit [Order 25, rule 4.]

5.

Compromise of a suit [Order 25, rule 5.]

ORDER 26 - SECURITY FOR COSTS

1.

Security for costs [Order 26, rule 1.]

2.

Application before defence [Order 26, rule 2.]

3.

Where two or more defendants [Order 26, rule 3.]

4.

Claims by non-resident plaintiff [Order 26, rule 4.]

5.

Effect of failure to give security [Order 26, rule 5.]

6.

Investment of security [Order 26, rule 6.]

ORDER 27 - PAYMENT INTO COURT AND TENDER

1.

Payment into court [Order 27, rule 1.]

2.

Acceptance of payment [Order 27, rule 2.]

3.

Money remaining in court [Order 27, rule 3.]

4.

Payment into court where several defendants [Order 27, rule 4.]

5.

Payment into court on a counterclaim [Order 27, rule 5.]

6.

Confidentiality of payments into court [Order 27, rule 6.]

7.

Register of payments to be kept [Order 27, rule 7.]

8.

Investment of payment [Order 27, rule 8.]

9.

Money paid in under order of court [Order 27, rule 9.]

10.

Moneys recovered by infants or persons of unsound mind [Order 27, rule 10.]

ORDER 28 - COMMISSION AND REFERENCES

1.

Cases in which court may issue commission to examine witnesses [Order 28, rule 1.]

2.

Where witness resides within court’s jurisdiction [Order 28, rule 2.]

3.

Persons for whose examination commission may issue [Order 28, rule 3.]

4.

Request to examine witness abroad [Order 28, rule 4.]

5.

Court to examine witness pursuant to commission [Order 28, rule 5.]

6.

Return of commission with deposition of witness [Order 28, rule 6.]

7.

Commissions to make investigations [Order 28, rule 7.]

8.

Procedure of commissioner [Order 28, rule 8.]

9.

Examination of accounts by referee [Order 28, rule 9.]

10.

Instructions to referee [Order 28, rule 10.]

11.

Partition of immovable property [Order 28, rule 11.]

12.

Procedure upon partition [Order 28, rule 12.]

13.

Expenses of commission to be paid into court [Order 28, rule 13.]

14.

Powers of commissioner [Order 28, rule 14.]

15.

Attendance and examination of witnesses before commissioner [Order 28, rule 15.]

16.

Parties to appear before commissioner [Order 28, rule 16.]

17.

Commissions issued by foreign courts [Order 28, rule 17.]

18.

Evidence in proceedings by or against the Government [Order 28, rule 18.]

ORDER 29 - PROCEEDINGS BY OR AGAINST THE GOVERNMENT

1.

Interpretation [Order 29, rule 1.]

2.

Rules to apply to proceedings by or against the Government [Order 29, rule 2.]

3.

Application for a certificate under section. 21 of the Government Proceedings Act [Order 29, rule 3.]

4.

Attachment of debts or appointment of a receiver [Order 29, rule 4.]

ORDER 30 - SUITS BY OR AGAINST FIRMS AND OTHER PERSONS CARRYING OUT BUSINESS IN NAMES OTHER THAN THEIR OWN

1.

Suing of partners in name of firm [Order 30, rule 1.]

2.

Disclosure of partners’ names [Order 30, rule 2.]

3.

Service [Order 30, rule 3.]

4.

Notice in what capacity served [Order 30, rule 4.]

5.

Appearance of partners [Order 30, rule 5.]

6.

No appearance except by partners [Order 30, rule 6.]

7.

Appearance in action against firms [Order 30, rule 7.]

8.

Suits between firm and partners [Order 30, rule 8.]

9.

Suit against persons carrying on business in name other than his own [Order 30, rule 9.]

ORDER 31 - SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

1.

Representation of beneficiaries in suits concerning property vested in trustees [Order 31, rule 1.]

2.

Joinder of trustees, executors and administrators [Order 31, rule 2.]

ORDER 32 - SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

1.

Minor to sue by next friend [Order 32, rule 1.]

2.

Where suit is instituted without next friend [Order 32, rule 2.]

3.

Guardian ad litem [Order 32, rule 3.]

4.

Who may act as next friend or be appointed guardian for the suit [Order 32, rule 4.]

5.

Representation of minor by next friend or guardian for the suit [Order 32, rule 5.]

6.

Receipt of property or money on behalf of minor [Order 32, rule 6.]

7.

Agreement or compromise of suit on behalf of minor [Order 32, rule 7.]

8.

Retirement of next friend [Order 32, rule 8.]

9.

Removal of next friend [Order 32, rule 9.]

10.

Stay of proceedings [Order 32, rule 10.]

11.

Retirement, removal, or death of guardian ad litem [Order 32, rule 11.]

12.

Procedure where minor attains majority [Order 32, rule 12.]

13.

Where minor co-plaintiff attaining majority desires to repudiate suit [Order 32, rule 13.]

14.

Unreasonable or improper suit [Order 32, rule 14.]

15.

Application of rules to persons of unsound mind [Order 32, rule 15.]

ORDER 33 - SUITS BY PAUPERS

1.

Suits may be instituted by a pauper [Order 33, rule 1.]

2.

Contents of application [Order 33, rule 2.]

3.

Presentation of application [Order 33, rule 3.]

4.

Examination of applicant [Order 33, rule 4.]

5.

Rejection of application [Order 33, rule 5.]

6.

Notice of day for receiving evidence of applicant’s pauperism [Order 33, rule 6.]

7.

Procedure at hearing [Order 33, rule 7.]

8.

Procedure if application admitted [Order 33, rule 8.]

9.

Dispaupering [Order 33, rule 9.]

10.

Costs where pauper succeeds [Order 33, rule 10.]

11.

Procedure where pauper fails [Order 33, rule 11.]

12.

Government may apply for payment of court fees [Order 33, rule 12.]

13.

Government to be deemed a party [Order 33, rule 13.]

14.

Refusal to allow applicant to sue as pauper to bar subsequent application of like nature [Order 33, rule 14.]

15.

Costs [Order 33, rule 15.]

16.

Court fees [Order 33, rule 16.]

17.

Recovery of court fees from pauper [Order 33, rule 17.]

18.

Procedure [Order 33, rule 18.]

ORDER 34 - INTERPLEADER

1.

Practice under this Order [Order 34, rule 1.]

2.

Averments to be proved by applicant [Order 34, rule 2.]

3.

Stay of suit [Order 34, rule 3.]

4.

Order upon summons [Order 34, rule 4.]

5.

Summary procedure [Order 34, rule 5.]

6.

Costs and other orders [Order 34, rule 6.]

7.

Order upon a claimant’s failure to appear [Order 34, rule 7.]

8.

Questions of law [Order 34, rule 8.]

9.

Adverse title of claimants [Order 34, rule 9.]

ORDER 35 - PROCEEDINGS BY AGREEMENT OF PARTIES

1.

Power to state case for court’s opinion [Order 35, rule 1.]

2.

Where value of subject-matter must be stated [Order 35, rule 2.]

3.

Agreement to be filed and registered as suit [Order 35, rule 3.]

4.

Parties to be subject to court’s jurisdiction [Order 35, rule 4.]

5.

Hearing and disposal of case [Order 35, rule 5.]

ORDER 36 - SUMMARY PROCEDURE

1.

Summary judgment [Order 36, rule 1.]

2.

Defendant may show cause [Order 36, rule 2.]

3.

Application by Government [Order 36, rule 3.]

4.

Time for defence [Order 36, rule 4.]

5.

Judgment for part of claim [Order 36, rule 5.]

6.

Procedure where more than one defendant [Order 36, rule 6.]

7.

Leave to defend [Order 36, rule 7.]

8.

Costs [Order 36, rule 8.]

9.

Forms [Order 36, rule 9.]

10.

Setting aside of judgment [Order 36, rule 10.]

ORDER 37 - ORIGINATING SUMMONS

1.

Who may take out originating summons and in respect of what matters [Order 37, rule 1.]

2.

Order for administration of estate or trust [Order 37, rule 2.]

3.

Summons by vendor or purchaser of land [Order 37, rule 3.]

4.

Summons by a mortgagee, mortgagor and others [Order 37, rule 4.]

5.

Caveats [Order 37, rule 5.]

6.

Extension of limitation period [Order 37, rule 6.]

7.

Adverse possession [Order 37, rule 7.]

8.

Application under the Registered Land Act [Order 37, rule 8.]

9.

Application under Chattels Transfer Act [Order 37, rule 9.]

10.

Summons by a member of a partnership [Order 37, rule 10.]

11.

Summons by persons interested in deeds or wills [Order 37, rule 11.]

12.

Variation of trusts [Order 37, rule 12.]

13.

Discretion upon summons for construction of document [Order 37, rule 13.]

14.

Forms [Order 37, rule 14.]

15.

Summons to be filed and registered [Order 37, rule 15.]

16.

Directions [Order 37, rule 16.]

17.

Procedure [Order 37, rule 17.]

18.

Evidence and directions upon hearing of summons [Order 37, rule 18.]

19.

Powers of court upon hearing of summons [Order 37, rule 19.]

20.

Court may make orders as to costs incurred by any party [Order 37, rule 20.]

ORDER 38 - SELECTION OF TEST SUIT

1.

Staying several suits against the same defendant [Order 38, rule 1.]

2.

Staying similar suits upon application by defendant [Order 38, rule 2.]

ORDER 39 - ARREST AND ATTACHMENT BEFORE JUDGMENT

1.

Where defendant may be called upon to furnish security for appearance [Order 39, rule 1.]

2.

Security [Order 39, rule 2.]

3.

Procedure on application by surety to be discharged [Order 39, rule 3.]

4.

Procedure where defendant fails to furnish security or find fresh security [Order 39, rule 4.]

5.

Where defendant may be called upon to furnish security for production of property [Order 39, rule 5.]

6.

Attachment where cause not shown or security not furnished [Order 39, rule 6.]

7.

Mode of making attachment [Order 39, rule 7.]

8.

Investigation or claim to property attached before judgment [Order 39, rule 8.]

9.

Removal of attachment when security furnished or suit dismissed [Order 39, rule 9.]

10.

Attachment before judgment not to affect rights of strangers nor bar decree-holder from applying for sale [Order 39, rule 10.]

11.

Property attached before judgment not to be re-attached in execution of decree [Order 39, rule 11.]

ORDER 40 - TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

1.

Cases in which temporary injunction may be granted [Order 40, rule 1.]

2.

Injunction to restrain breach of contract or other injury [Order 40, rule 2.]

3.

Consequence of breach [Order 40, rule 3.]

4.

Notice of application [Order 40, rule 4.]

5.

Ruling of the court [Order 40, rule 5.]

6.

Lapse of injunction [Order 40, rule 6.]

7.

Order for injunction may be discharged, varied, or set aside [Order 40, rule 7.]

8.

Injunction against corporation binding on its officers [Order 40, rule 8.]

9.

Power to order interim sale [Order 40, rule 9.]

10.

Detention, preservation, inspection of property [Order 40, rule 10.]

11.

Deposit of money and other deliverables [Order 40, rule 11.]

ORDER 41 - APPOINTMENT OF RECEIVERS

1.

Appointment of receivers [Order 41, rule 1.]

2.

Remuneration [Order 41, rule 2.]

3.

Duties [Order 41, rule 3.]

4.

Enforcement of receiver’s duties [Order 41, rule 4.]

5.

Removal [Order 41, rule 5.]

ORDER 42 - APPEALS

1.

Form of appeal [Order 42, rule 1.]

2.

Filing of decree or order [Order 42, rule 2.]

3.

Amendment of memorandum of appeal [Order 42, rule 3.]

4.

Grounds which may be taken in appeal [Order 42, rule 4.]

5.

One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all [Order 42, rule 5.]

6.

Stay in case of appeal [Order 42, rule 6.]

7.

Security in case of order for execution of decree appealed from [Order 42, rule 7.]

8.

No security to be required from the Government [Order 42, rule 8.]

9.

Exercise of powers in appeal from order made in execution of decree [Order 42, rule 9.]

10.

Register and filing of appeals [Order 42, rule 10.]

11.

Directions under section 79B [Order 42, rule 11.]

12.

Service of memorandum [Order 42, rule 12.]

13.

Directions before hearing [Order 42, rule 13.]

14.

Security for costs [Order 42, rule 14.]

15.

Notice to be given where decree appealed from [Order 42, rule 15.]

16.

Filing declaration and written submissions [Order 42, rule 16.]

17.

Service of hearing notice [Order 42, rule 17.]

18.

Contents of notice [Order 42, rule 18.]

19.

Right to begin [Order 42, rule 19.]

20.

Dismissal of appeal for appellant’s default [Order 42, rule 20.]

21.

Re-admission of appeal dismissed for default [Order 42, rule 21.]

22.

Power to adjourn hearing and direct interested persons to be made respondents [Order 42, rule 22.]

23.

Re-hearing on application of respondent against whom ex parte decree made [Order 42, rule 23.]

24.

Remand of cases [Order 42, rule 24.]

25.

Where evidence on record sufficient appellate court may determine case finally [Order 42, rule 25.]

26.

Power to order new trial [Order 42, rule 26.]

27.

Production of additional evidence in appellate court [Order 42, rule 27.]

28.

Mode of taking additional evidence [Order 42, rule 28.]

29.

Limits to be defined and recorded [Order 42, rule 29.]

30.

Where court consists of more than one judge [Order 42, rule 30.]

31.

What judgment may direct [Order 42, rule 31.]

32.

Power of appellate court on appeal [Order 42, rule 32.]

33.

Preparation and contents of decree [Order 42, rule 33.]

34.

Certified copy of decree to be sent to court whose decree appealed from [Order 42, rule 34.]

35.

Dismissal for want of prosecution [Order 42, rule 35.]

ORDER 43 - APPEALS FROM ORDERS

1.

Appeals from Orders [Order 43, rule 1.]

2.

Procedure [Order 43, rule 2.]

3.

Saving [Order 43, rule 3.]

ORDER 44 - PAUPER APPEALS

1.

Who may appeal as a pauper [Order 44, rule 1.]

2.

Inquiry into pauperism [Order 44, rule 2.]

ORDER 45 - REVIEW

1.

Application for review of decree or order [Order 45, rule 1.]

2.

To whom applications for review may be made [Order 45, rule 2.]

3.

When court may grant or reject application [Order 45, rule 3.]

4.

Application where more than one judge hears [Order 45, rule 4.]

5.

Re-hearing upon application granted [Order 45, rule 5.]

6.

Bar of subsequent applications [Order 45, rule 6.]

ORDER 46 - ARBITRATION UNDER ORDER OF A COURT AND OTHER ALTERNATIVE DISPUTE RESOLUTION

1.

Parties to a suit may apply for arbitration [Order 46, rule 1.]

2.

Appointment of arbitrator [Order 46, rule 2.]

3.

Form of order [Order 46, rule 3.]

4.

Provisions where two or more arbitrators [Order 46, rule 4.]

5.

Power to appoint arbitrator [Order 46, rule 5.]

6.

Power of arbitrator or umpire appointed by court [Order 46, rule 6.]

7.

Summoning witnesses and default [Order 46, rule 7.]

8.

Extension of time for making award [Order 46, rule 8.]

9.

Where umpire may arbitrate in lieu of arbitrators [Order 46, rule 9.]

10.

Award to be signed, dated and filed [Order 46, rule 10.]

11.

Time for reading award may be fixed [Order 46, rule 11.]

12.

Statement of special case by arbitrators or umpire [Order 46, rule 12.]

13.

Costs of arbitration [Order 46, rule 13.]

14.

Power to modify or correct award [Order 46, rule 14.]

15.

Power to remit for reconsideration [Order 46, rule 15.]

16.

Grounds for setting aside award [Order 46, rule 16.]

17.

Time for application [Order 46, rule 17.]

18.

Judgment on award [Order 46, rule 18.]

19.

Forms [Order 46, rule 19.]

20.

Alternative dispute resolution [Order 46, rule 20.]

ORDER 47 - DISTRICT REGISTRIES

1.

Institution of suits in High Court [Order 47, rule 1.]

2.

Schedule of District Registries and areas [Order 47, rule 2.]

3.

Title of suits filed in a District Registry [Order 47, rule 3.]

4.

Suits filed in a registry remain there when all defendants reside within that area [Order 47, rule 4.]

5.

Proceedings against the Government [Order 47, rule 5.]

6.

Place of trial [Order 47, rule 6.]

7.

All preliminary steps taken before the District Registrar [Order 47, rule 7.]

8.

Appeal from decision of District Registrar [Order 47, rule 8.]

9.

Taxations in District Registries [Order 47, rule 9.]

10.

Appeals from subordinate courts. [Order 47, rule 10.]

ORDER 48 - MISCELLANEOUS

1.

Process to be served at expense of party issuing [Order 48, rule 1.]

2.

Service of Orders, notices and documents [Order 48, rule 2.]

3.

Use of forms [Order 48, rule 3.]

4.

Special rules of procedure [Order 48, rule 4.]

ORDER 49 - SPECIAL POWERS OF REGISTRARS

1.

Registrar to be ministerial officer [Order 49, rule 1.]

1A.

Signing summons [Order 49, rule 1A]

2.

When Judgment may be entered by Registrar [Order 49, rule 2.]

3.

Consent orders [Order 49, rule 3.]

4.

No judgment against Government in default of pleading without leave of court [Order 49, rule 4.]

5.

Execution may be ordered by Registrar [Order 49, rule 5.]

6.

Registrar a Civil Court [Order 49, rule 6.]

7.

Hearing of applications [Order 49, rule 7.]

ORDER 50 - TIME

1.

Month means calendar month [Order 50, rule 1.]

2.

Exclusion of Sundays and public holidays [Order 50, rule 2.]

3.

Time expiring on Sunday or day offices closed [Order 50, rule 3.]

4.

When time does not run [Order 50, rule 4.]

5.

Time for giving security for costs, when not to be reckoned [Order 50, rule 5.]

6.

Power to enlarge time [Order 50, rule 6.]

7.

Enlargement of time by consent [Order 50, rule 7.]

8.

Computation of days [Order 50, rule 8.]

9.

Time of day of service [Order 50, rule 9.]

ORDER 51 - APPLICATIONS

1.

Procedure [Order 51, rule 1.]

2.

Applications under section 25(2) of the Government Proceedings Act [Order 51, rule 2.]

3.

Notice to parties [Order 51, rule 3.]

4.

Contents of notice [Order 51, rule 4.]

5.

Dismissal or adjournments for want of notice [Order 51, rule 5.]

6.

Adjournment of hearing [Order 51, rule 6.]

7.

Service of notice on defendant served with summons to enter appearance but not appearing [Order 51, rule 7.]

8.

Transfer from court to chambers [Order 51, rule 8.]

9.

Transfer from chambers to court [Order 51, rule 9.]

10.

Provision under which application is made to be stated [Order 51, rule 10.]

11.

Costs and other relief [Order 51, rule 11.]

12.

When application are deemed to be made [Order 51, rule 12.]

13.

Signature on application and service [Order 51, rule 13.]

14.

Grounds of opposition to application in High Court [Order 51, rule 14.]

15.

Setting aside ex parte order [Order 51, rule 15.]

16.

Court may limit time for submissions [Order 51, rule 16.]

ORDER 52 - THE ADVOCATES ACT

1.

Interpretation [Order 52, rule 1.]

2.

Appeals to the Chief Justice [Order 52, rule 2.]

3.

Applications with respect to remuneration [Order 52, rule 3.]

4.

Power to order advocate to deliver accounts and documents [Order 52, rule 4.]

5.

Application for taxation by third parties [Order 52, rule 5.]

6.

Application for charging order [Order 52, rule 6.]

7.

Application for order for enforcement of an undertaking [Order 52, rule 7.]

8.

Title and service of appeal [Order 52, rule 8.]

9.

Discontinuance of appeal [Order 52, rule 9.]

10.

Procedure [Order 52, rule 10.]

ORDER 53 - APPLICATIONS FOR JUDICIAL REVIEW

1.

Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1.]

2.

Time for applying for certiorari in certain cases [Order 53, rule 2.]

3.

Application to be by notice of motion [Order 53, rule 3.]

4.

Statements and affidavits [Order 53, rule 4.]

5.

Applicant to have right to begin [Order 53, rule 5.]

6.

Right to be heard in opposition [Order 53, rule 6.]

7.

Provisions as to orders of certiorari for the purpose of quashing proceedings [Order 53, rule 7.]

ORDER 54 - REVOCATION AND TRANSITIONAL PROVISIONS

1.

Revocation of Civil Procedure Rules. Sub. leg. [Order 54, rule 1.]

2.

Transitional provisions

APPENDIX

APPENDIX A

PROCESS

Appendix E

(Title as in the pleadings)

TRIAL CONFERENCE MEMORANDUM

(Order 11 Rule 7(4)(a))

Appendix F

Appendix G

SCHEDULE

CIVIL PROCEDURE RULES, 2010
RULES UNDER SECTION 81

These Rules may be cited as the Civil Procedure Rules, 2010 and shall come into force ninety days after publication in the Gazette.

ORDER 1 - PARTIES TO SUITS
1.
Who may be joined as plaintiffs [Order 1, rule 1.]

All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.

2.
Power of court to order separate trial [Order 1, rule 2.]

Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may either on the application of any party or of its own motion put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

3.
Who may be joined as defendants [Order 1, rule 3.]

All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.

4.
Court may give judgment for or against one or more of joint parties [Order 1, rule 4.]

Judgment may be given without amendment—

(a)

for such one or more of the plaintiffs as may be found to be entitled to 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 be liable according to their respective liabilities.

5.
Defendant need not be interested in all relief claimed [Order 1, rule 5.]

It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.

6.
Joinder of parties liable on same contract [Order 1, rule 6.]

The plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally liable, on any one contract, including parties to bills of exchange and promissory notes.

7.
When plaintiff in doubt from whom redress to be sought [Order 1, rule 7.]

Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.

8.
One person may sue or defend on behalf of all in same interest [Order 1, rule 8.]
(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 as representing all except one or more of them.

(2)

The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.

(3)

Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.

9.
Misjoinder and non-joinder [Order 1, rule 9.]

No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

10.
Substitution and addition of parties [Order 1, rule 10.]
(1)

Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.

(2)

The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to 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 friend or as the next friend of a plaintiff under any disability without his consent in writing thereto.

(4)

Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendants.

11.
Government proceedings [Order 1, rule 11.]

In respect of civil proceedings by or against the Government, this Order shall have effect subject to section 12 of the Government Proceedings Act (which relates to parties to such proceedings).

12.
Conduct of suit [Order 1, rule 12.]

The court may give the conduct of the suit to such person as it deems proper.

13.
Appearance of one of several plaintiffs or defendants for others [Order 1, rule 13.]
(1)

Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

(2)

The authority shall be in writing signed by the party giving it and shall be filed in the case.

14.
Practice [Order 1, rule 14.]

Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner.

15.
Notice to third and subsequent parties [Order 1, rule 15.]
(1)

Where a defendant claims as against any other person not already a 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 connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or

(c)

that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them,

he shall apply to the Court within fourteen days after the close of pleadings for 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 ex parte supported by affidavit.

(2)

A copy of such notice shall be filed and shall be served on the third party 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, unless otherwise ordered by the court, be filed and served within fourteen days of leave, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as 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 party to the action such a claim as is mentioned in subrule (1), the provisions of this Order regulating the rights and procedure as between the defendant and the third party shall apply mutatis mutandis as between the third party and such person, and the court may give leave to such third party to issue a third party notice, and the preceding rules of this Order shall apply mutatis mutandis, and the expressions “third party notice” and “third party” shall respectively apply to 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 person not already a party to the action, such other person and any subsequent person made a party to the action shall comply mutatis mutandis with the provisions of this rule.

[L.N. 22/2020, r. 2.]

16.
Notice to Government as third party [Order 1, rule 16.]

Notwithstanding anything in rule 15, leave to issue a third party notice for service on the Government shall not be granted unless the Court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned.

17.
Default of appearance by third party [Order 1, rule 17.]

If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the “third party”) desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice:

Provided that a person so served and failing to enter an appearance within the period fixed in the notice may apply to the Court for leave to enter an appearance, and for good cause such leave may be given upon such terms, if any, as the court shall think fit.

18.
Default of appearance by Government as third party [Order 1, rule 18.]

In the case of third-party proceedings against the Government, rule 17 shall not apply unless the court so orders; and any application for such an order shall be made by chamber summons served not less than seven days before the return day.

19.
Judgment against third party in default [Order 1, rule 19.]

Where a third party makes default in entering an appearance in the suit, or in delivering any pleading, and the defendant giving the notice suffers judgment by default, such defendant shall be entitled, after causing the satisfaction of the decree against himself to be entered upon the record, to judgment against the third party to the extent claimed in the third-party notice; the court may upon the application of the defendant pass such judgment against the third party before such defendant has satisfied the decree passed against him:

Provided that it shall be lawful for the court to set aside or vary any judgment passed under this rule upon such terms as may seem just.

20.
No judgment against Government without leave of the Court [Order 1, rule 20.]
(1)

A defendant shall not in any event be entitled to enter judgment against the Government under rule 19 without the leave of the court.

(2)

Any application for leave to enter judgment against the Government under this rule shall be made by chamber summons served not less than seven days before the return day.

21.
Judgment after trial against third party in default [Order 1, rule 21.]
(1)

Where a third party makes default in entering an appearance in the suit, and the suit is tried and results in favour of the plaintiff, the court may either at or after the trial enter such judgment as the nature of the suit may require for the defendant giving notice against the third party:

Provided that execution thereof shall not be issued without leave of the court, until after satisfaction by such defendant of the decree against him.

(2)

If the suit is finally decided in the plaintiff’s favour, otherwise than by trial, the court may, upon application ex parte supported by affidavit, order such judgment as the nature of the case may require to be entered for the defendant giving the notice against the third party at any time after satisfaction by the defendant of the decree obtained by the plaintiff against him.

22.
Appearance of third party and directions [Order 1, rule 22.]

If a third party enters an appearance pursuant to the third-party notice, the defendant giving the notice may apply to the court by summons in chambers for directions, and the court upon the hearing of such application may, if satisfied that there is a proper question to be tried as to the liability of the third party, order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.

23.
Costs [Order 1, rule 23.]

The court may decide all questions of costs between a third party and the other parties to the suit, and may make such orders as to costs as the justice of the case may require.

24.
Defendant claiming against a co-defendant [Order 1, rule 24.]
(1)

Where a defendant desires to claim against another person who is 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 connected with the original subject-matter of the action which is substantially the same as some relief or remedy claimed by the plaintiff; or

(c)

that any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and such other person or between any or either of them,

the defendant may without leave issue and serve on such other person a notice making such claim or specifying such question or issue.

(2)

No appearance to such notice shall be necessary but there shall be adopted for the determination of such claim, question or issue the same procedure as if such other person were a third party under this Order.

(3)

Nothing contained in this rule shall operate or be construed so as to prejudice the rights of the plaintiff against any defendant to the action.

25.
Procedure [Order 1, rule 25.]

Applications under rules 10 and 19 may be made orally in Court or by summons in chamber.

26.
Parties to provide contacts [Order 1, rule 26]
(1)

A party to a suit shall provide contact details to the Court when filing pleadings including the party's —

(a)

postal address;

(b)

telephone number;

(c)

email address; and

(d)

physical address.

(2)

A party shall notify the Court of any changes to the contact details provided under subrule (1).

[L.N. 22/2020, r. 3.]

ORDER 2 - PLEADINGS GENERALLY
1.
Pleadings generally [Order 2, rule 1.]
(1)

Every pleading in civil proceedings including proceedings against the Government shall contain information as to the circumstances in which it is alleged that the liability has arisen and, in the case of the Government, the departments and officers concerned.

(2)

In such proceedings if the defendant considers that the pleading does not contain sufficient information as aforesaid, the defendant may, at any time before the time limited by the summons for appearance has expired, by notice in writing to the plaintiff, request further information as specified in the notice.

(3)

Where such a notice has been given, the time for appearance shall expire four days after the defendant has notified the plaintiff in writing that the defendant is satisfied or four days after the court has, on the application of the plaintiff by chamber summons served on the defendant not less than seven days before the return day, decided that no further information is reasonably required.

2.
Formal requirements [Order 2, rule 2.]
(1)

Every pleading shall be divided into paragraphs numbered consecutively, each allegation being so far as appropriate contained in a separate paragraph.

(2)

Dates, sums and other numbers shall be expressed in figures and not words.

3.
Facts not evidence, to be pleaded [Order 2, rule 3.]
(1)

Subject to the provisions of this rule and rules 6, 7 and 8, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits.

(2)

Without prejudice to subrule (1), the effect of any document or the purport of any conversation referred to in the pleading shall, if material, be briefly stated, and the precise words of the document or conversation shall not be 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 or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading.

(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 condition precedent necessary for the case of a party shall be implied in his pleading.

4.
Matters which must be specifically pleaded [Order 2, rule 4.]
(1)

A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality—

(a)

which he alleges makes any claim or defence of the opposite party not maintainable;

(b)

which, if not specifically pleaded, might take the opposite party by 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 the recovery of land shall plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant shall not be sufficient.

(3)

In this rule “land” includes land covered with water, all things growing on land, and buildings and other things permanently affixed to land.

5.
Matter may be pleaded whenever arising [Order 2, rule 5.]

Subject to rules 3 (1) and 6, a party may in any pleading plead any matter which has arisen at any time, whether before or since the filing of the plaint.

6.
Departure [Order 2, rule 6.]
(1)

No party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit.

(2)

Subrule (1) shall not prejudice the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.

7.
Particulars in defamation actions [Order 2, rule 7.]
(1)

Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense.

(2)

Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance 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 alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.

(3)

Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his plaint give particulars of the facts on which he relies in support of the allegation of malice; but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he shall file a reply giving particulars of the facts and matters from which the malice is to be inferred.

(4)

This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant.

8.
Particulars of evidence in mitigation [Order 2, rule 8.]

In an action for libel or slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled at the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the court, unless at least twenty-one days before the trial he has given the plaintiff particulars of the matters on which he intends to give evidence.

9.
Points of law [Order 2, rule 9.]

A party may by his pleading raise any point of law.

10.
Particulars of pleading [Order 2, rule 10.]
(1)

Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing—

(a)

particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

(b)

where a party pleading alleges any condition of the mind of any person, 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 particulars of any claim, defence or other matter stated in his pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the court thinks just.

(3)

Where a party alleges as a fact that a person had knowledge or notice of 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 on any other party—

(a)

where he alleges knowledge, particulars of the facts on which he relies; and

(b)

where he alleges notice, particulars of the notice.

(4)

An order under this rule shall not be made before the filing of the defence unless the order is necessary or desirable to enable the defendant to plead or for some other special reason.

(5)

No order for costs shall be made in favour of a party applying for an order who has not first applied by notice in Form No. 2 of Appendix B which shall be served in duplicate.

(6)

Particulars delivered shall be in Form No. 3 of Appendix A which shall be filed by the party delivering it together with the original notice and shall form part of the pleadings.

11.
Admissions and denials [Order 2, rule 11.]
(1)

Subject to subrule (4), any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposing party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial of it.

(2)

A traverse may be made either by denial or by a statement of non-admission and either expressly or by necessary implication.

(3)

Subject to subrule (4), every allegation of fact made in a plaint or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by him in his defence or defence to counterclaim; and a general denial of such allegations, or a general statement of non-admission of them, shall not be a sufficient traverse of them.

(4)

Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be deemed to have been traversed unless specifically admitted.

12.
Denial by joinder of issue [Order 2, rule 12.]
(1)

If there is no reply to a defence, there is a joinder of issue on that defence.

(2)

Subject to subrule (3)—

(a)

there is at the close of pleadings a joinder of issue on the pleading last filed; and

(b)

a party may in his pleading expressly join issue on the immediately preceding 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 allegation of fact made in the pleading on which there is a joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.

13.
Close of pleadings [Order 2, rule 13.]

The pleadings in a suit shall be closed fourteen days after service of the reply or defence to counterclaim, or, if neither is served, fourteen days after service of the defence, notwithstanding that any order or request for particulars has been made but not complied with.

14.
Technical objection [Order 2, rule 14.]

No technical objection may be raised to any pleading on the ground of any want of form.

15.
Striking out pleadings [Order 2, rule 15.]
(1)

At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—

(a)

it discloses no reasonable cause of action or defence in law; or

(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 entered accordingly, 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 summons and a petition.

16.
Pleading to be signed [Order 2, rule 16.]

Every pleading shall be signed by an advocate, or recognised agent (as defined by Order 9, rule 2), or by the party if he sues or defends in person.

17.
Proceedings in rem [Order 2, rule 17.]

An application under section 25(2) of the Government Proceedings Act (Cap. 40) may be made at any time before trial or during the trial.

ORDER 3 - FRAME AND INSTITUTION OF SUIT
1.
Commencement of suit and case track allocation [Order 3, rule 1.]
(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 “small claims”, “fast track” or “multi-track”.

(3)

For purposes of this rule—

(a)

"small claim" refers to a simple claim whose monetary value does not exceed two hundred thousand shillings.

(b)

“Fast track” refers to a case with undisputed facts and legal issues; relatively few parties; and would likely be concluded within one hundred and eighty days after the pre-trial directions under Order 11.

(c)

“Multi-track” refers to a case with complex facts and legal issues; or several parties and which would likely be concluded within two hundred and forty days from the date of the pre-trial directions under Order 11.

(4)

In choosing a case track, the plaintiff shall have regard to all relevant considerations including the following—

(a)

the complexity of the issues of fact, law or evidence;

(b)

the financial value of the claim;

(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 for trial or hearing;

[L.N. 22/2020, r. 4.]

2.
Documents to accompany suit [Order 3, rule 2.]

All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by—

(a)

the affidavit referred to under Order 4 rule1(2);

(b)

a list of witnesses to be called at the trial;

(c)

written statements signed by the witnesses excluding expert witnesses; and

(d)

copies of documents to be relied on at the trial including a demand letter before action:

Provided that statement under sub rule (c) may with leave of court be furnished at least fifteen days prior to the trial conference under Order 11.

3.
Register of civil suits and filing [Order 3, rule 3.]
(1)

A register of suits, to be called the register of civil suits, shall be kept at every registry; and the particulars of every suit filed in a registry shall be entered in the register and all such suits shall be numbered in each year according to the order in which they are instituted in that registry.

(2)

Every plaint to be filed shall be presented to the registry during office hours together with any fee payable on its filing and each such plaint shall be date-stamped with the date on which it was so presented which shall be the date of filing the suit notwithstanding any dispute as to the amount of the fee payable.

4.
Suit to include the whole claim [Order 3, rule 4.]
(1)

Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim.

(2)

Where a plaintiff omits to sue in respect of or relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion omitted or relinquished.

(3)

A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted.

5.
Joinder of causes of action [Order 3, rule 5.]
(1)

Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2)

Where causes of action are united, the jurisdiction of the court as regards the suit shall depend on the amount or value of the aggregate of the subject-matters at the date of instituting the suit.

6.
Only certain claims to be joined with a suit for recovery of immovable property [Order 3, rule 6.]

No cause of action shall, except with the leave of the court, be joined with a suit for the recovery of immovable property, except—

(a)

claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;

(b)

claims for damages for breach of any contract under which the property or any part thereof is held;

(c)

claims for damages for any wrong or injury to the premises claimed; and

(d)

claims in which the relief sought is based on the same cause of action:

Provided that nothing in this rule shall prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property, and such suit for foreclosure or redemption and for such delivery of possession shall not be deemed a suit for the recovery of immovable property within the meaning of this rules.

7.
Claims by or against executor, administrator or heir [Order 3, rule 7.]

No claim by or against an executor or administrator, as such, shall be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.

8.
Power of court to order separate trials [Order 3, rule 8.]

Where it appears to the court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the court may either on the application of any party or of its own motion order separate trials or may make such order as may be expedient.

9.
Declaratory judgment [Order 3, rule 9.]

No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make a binding declaration of right whether any consequential relief is or could be claimed or not.

ORDER 4 - PLAINT
1.
Particulars of plaint [Order 4, rule 1.]
(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, and an address for service;

(c)

the name, description and place of residence of the defendant, so far 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 unsound mind, a statement to that effect; and

(f)

an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.

(2)

The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.

(3)

Where there are several plaintiffs, one of them, with written authority filed with the verifying affidavit, may swear the verifying affidavit on behalf of the others.

(4)

Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.

(5)

The provisions of sub-rule (3) and (4) shall apply mutatis mutandis to counterclaims.

(6)

The court may of its own motion or on the application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.

2.
Money suit [Order 4, rule 2.]
(1)

Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed, except where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant.

(2)

The provisions of this rule shall apply to counterclaims.

3.
Where the subject-matter of the suit is immovable property [Order 4, rule 3.]

Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it.

4.
Capacity of parties [Order 4, rule 4.]

Where the plaintiff sues in a representative capacity the plaint shall state the capacity in which he sues and where the defendant is sued in a representative capacity the plaint shall state the capacity in which he is sued, and in both cases it shall be stated how that capacity arises.

5.
Defendant’s interest and liability to be shown [Order 4, rule 5.]

The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.

6.
Statement of relief claimed [Order 4, rule 6.]

Every plaint shall state specifically the relief which the plaintiff claims, either specifically or in the alternative, and it shall not be necessary to ask for costs, interest or general or other relief which may always be given as the court deems just, whether or not it could have been asked for or granted when the suit was filed; and this rule shall apply also to a defence or counterclaim.

7.
Relief founded on separate grounds [Order 4, rule 7.]

Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be, separately and distinctly.

8.
Copies of plaint [Order 4, rule 8.]

The plaintiff shall present as many copies of the plaint as there are defendants.

9.
Return of plaint [Order 4, rule 9.]
(1)

The plaint may at any stage of the suit be returned to be presented to the court in which the suit should have been instituted.

(2)

On returning a plaint the judge shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it.

ORDER 5 - ISSUE AND SERVICE OF SUMMONS
1.
Issue of summons [Order 5, rule 1.]
(1)

When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein.

(2)

Every summons shall be signed by the judge or an officer appointed by the judge and shall be sealed with the seal of the court without delay, and in any event not more than thirty days from the date of filing suit.

(3)

Every summons shall be accompanied by a copy of the plaint.

(4)

The time for appearance shall be fixed with reference to the place of residence of the defendant so as to allow him sufficient time to appear:

Provided 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 filed with the plaint to be signed in accordance with sub rule (2) of this rule.

(6)

Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue, failing which the suit shall abate.

[L.N. 22/2020, r. 5.]

2.
Duration and renewal of summons [Order 5, rule 2.]
(1)

A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons.

(2)

Where a summons has not been served on a defendant the court may extend the validity of the summons from time to time if satisfied it is just to do so

(3)

Where the validity of a summons has been extended under sub-rule (2) before it may be served it shall be marked with an official stamp showing the period for which its validity has been extended.

(4)

Where the validity of a summons is extended, the order shall operate in relation to any other summons (whether original or concurrent) issued in the same suit which has not been served so as to extend its validity until the period specified in the order.

(5)

An application for an order under sub-rule (2) shall be made by filing an affidavit setting out the attempts made at service and their result, and the order may be made without the advocate or plaintiff in person being heard.

(6)

As many attempts to serve the summons as are necessary may be made during the period of validity of the summons.

(7)

Where no application has been made under subrule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons.

3.
Service on a corporation [Order 5, rule 3.]

Subject to any other written law, where the suit is against a corporation the summons may be served—

(a)

on the secretary, director or other principal officer of the corporation; or

(b)

if the process server is unable to find any of the officers of the corporation mentioned in rule 3(a)—

(i) by leaving it at the registered office of the corporation;
(ii) by sending it by prepaid registered post or by a licensed courier service provider approved by the court to the registered postal address of the corporation; or
(iii) if there is no registered office and no registered office or physical address of the corporation, by leaving it at the place where the corporation carries on business; or
(iv) by sending it by registered post to the last known postal address of the corporation.

[L.N. 22/2020, r. 6.]

4.
Concurrent summons [Order 5, rule 4.]
(1)

One or more concurrent summonses may, at the request of the plaintiff, be issued at the time when the original summons is issued or at any time thereafter before the original summons ceases to be valid.

(2)

A concurrent summons shall be valid only from the date of its own issue and shall remain valid so long as the original summons remains in force.

5.
Delivery or transmission of summons for service [Order 5, rule 5.]
(1)

Where the court has issued summons to a defendant, the summons may be delivered for service—

(a)

to any person for the time being duly authorized by the court;

(b)

to an advocate, or advocate’s clerk approved by the court;

(c)

to any subordinate court having jurisdiction in the place where the defendant resides;

(d)

to a police officer appointed under the Police Act (Cap.84) or to an officer appointed under the Administration Police Act (Cap.85); or

(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 upon receipt thereof proceed as if it had been issued by such court, and shall then return the summons to the court of issue, together with the record of any of its proceedings with regard thereto.

(3)

No objection maybe made to the service of a summons on the grounds that the person who served the summons either was not authorized so to do or that he exceeded or failed to comply with his authority in any way.

6.
Mode of service [Order 5, rule 6.]

Service of the summons shall be made by delivering or tendering a duplicate thereof signed by the judge, or such officer as he appoints in this behalf, and sealed with the seal of the court.

7.
Service on several defendants [Order 5, rule 7.]

Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.

8.
Service to be on defendant in person or on his agent [Order 5, rule 8.]
(1)

Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.

(2)

A summons may be served upon an advocate who has instructions to accept service and to enter an appearance to the summons and judgment in default of appearance may be entered after such service.

9.
Mode of service on the Government [Order 5, rule 9.]
(1)

The provisions of this Order shall have effect subject to section 13 of the Government Proceedings Act (Cap. 40), which provides for the service of documents on the Government for the purpose of or in connection with civil proceedings by or against the Government.

(2)

Service of a document in accordance with the said section 13 shall be effected—

(a)

by leaving the document within the prescribed hours at the office of the Attorney-General, or of any agent whom he has nominated for the purpose, but in either case with a person belonging to the office where the document is left; or

(b)

by posting it in a prepaid registered envelope addressed to the Attorney-General or any such agent as aforesaid,

and where service under this rule is made by post the time at which the document so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof.

(3)

All documents to be served on the Government for the purpose of or in connection with any civil proceedings shall be treated for the purposes of these Rules as documents in respect of which personal service is not requisite.

(4)

In this rule, “document” includes writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications.

10.
Service on agent by whom defendant carries on business [Order 5, rule 10.]
(1)

In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the court from which the summons is issued, service on any manager or agent, who at the time of service personally carries on such business or work for such person within such limits, shall be deemed good service.

(2)

For the purpose of this rule, the master of a ship shall be deemed to be an agent of the owner or charterer.

11.
Service on agent in charge in suits for immovable property [Order 5, rule 11.]

Where, in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, it may be made on an agent of the defendant empowered to accept service or on the agent of the defendant in charge of the property.

12.
Service on agent or adult [Order 5, rule 12.]

Where in any suit, after a reasonable number of attempts have been made to serve the defendant, and defendant cannot be found, service may be made on an agent of the defendant empowered to accept service or on any adult member of the family of the defendant who is residing with him.

13.
Person served to sign acknowledgment [Order 5, rule 13.]

Where a duplicate of the summons is duly delivered or tendered to the defendant personally or to an agent or other person on his behalf, the defendant or such agent or other person shall be required to endorse an acknowledgment of service on the original summons:

Provided that, if the court is satisfied that the defendant or such agent or other person has refused so to endorse, the court may declare the summons to have been duly served.

14.
Procedure when defendant refuses to accept service or cannot be found [Order 5, rule 14.]

Where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or any person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, together with an affidavit of service.

15.
Affidavit of service [Order 5, rule 15.]
(1)

The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.

(2)

Any person who knowingly makes a false affidavit of service shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or one month’s imprisonment or both.

16.
Examination of serving officer [Order 5, rule 16.]

On any allegation that a summons has not been properly served, the court may examine the serving officer on oath, or cause him to be so examined by another court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

17.
Substituted service [Order 5, rule 17.]
(1)

Where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order, the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.

(2)

Substituted service under an order of the court shall be as effectual as if it had been made on the defendant personally.

(3)

Where the court makes an order for substituted service it shall fix such time for the appearance of the defendant as the case may require.

(4)

Unless otherwise directed, where substituted service of a summons is ordered under this rule to be by advertisement, the advertisement shall be in Form No. 5 of Appendix A with such variations as the circumstances require.

18.
Service on defendant in prison [Order 5, rule 18.]

Where the defendant is confined in a prison, the summons shall be served on him personally in the presence of the officer in charge of the prison.

19.
Service on public officers and soldiers [Order 5, rule 19.]
(1)

Where the defendant is a public officer or an officer of a local authority, the court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed, together with a copy to be retained by the defendant.

(2)

Where the defendant is a soldier (but not an officer), the court shall send the summons for service to his commanding officer, together with a copy to be retained by the defendant.

20.
Duty on person to whom the summons is sent [Order 5, rule 20.]
(1)

Where a summons is delivered or sent to any person for service under rule 18 or rule 19, such person shall be bound to serve it, if possible, and to 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 shall be returned to the court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.

21.
Service out of Kenya [Order 5, rule 21.]

Service out of Kenya of a summons or notice of a summons may be allowed by the court whenever—

(a)

the whole subject-matter of the suit is immovable property situate in Kenya (with or without rents and profits);

(b)

any act, deed, will, contract, obligation or liability affecting immovable property situate in Kenya is sought to be construed, rectified, set aside, or enforced in the suit;

(c)

any relief is sought against any person domiciled or ordinarily resident in Kenya;

(d)

the suit is for the administration of the personal estate of a deceased person who at the time of his death was domiciled in Kenya, or for the execution (as to property situate in Kenya) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Kenya;

(e)

the suit is one brought to enforce, rectify, rescind, dissolve, annul, or other-wise affect a contract or to recover damages or other relief for or in respect of the breach of a contract—

(i) made in Kenya; or
(ii) made by or through an agent trading or residing in Kenya on behalf of a principal trading or residing out of Kenya; or
(iii) by its terms or by its legislation to be governed by the Laws of Kenya; or
(iv) which contains a provision to the effect that any Kenya court has jurisdiction to hear and determine that suit in respect of that contract,

or is brought in respect of a breach committed in Kenya, of a contract, wherever made, even though such a breach was preceded or accompanied by a breach out of Kenya which rendered impossible the performance of the part of the contract which ought to have been performed in Kenya; or

(f)

the suit is founded on a tort committed in Kenya;

(g)

any injunction is sought as to anything to be done in Kenya, or any nuisance in Kenya is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or

(h)

any person out of Kenya is a necessary or proper party to a suit properly brought against some other person duly served in Kenya.

22.
Service of other process out of the jurisdiction [Order 5, rule 22.]
(1)

Service out of Kenya of the following process or of notice thereof may be allowed by the court by—

(a)

an originating summons, originating notice of motion, petition, or other originating proceedings under any written law under which proceedings can be commenced otherwise than by plaint;

(b)

any summons, order or notice in any interpleader proceedings or for the appointment of an arbitrator or umpire, or to remit, set aside or enforce an award in an arbitration held or to be held within the jurisdiction;

(c)

any summons, order or notice in any proceedings duly instituted whether by plaint or other originating process mentioned in paragraph (a); or

(d)

where the person on whom the originating summons, originating notice of motion, petition or other originating proceedings, or a summons, order or notice, is to be served is not resident in Kenya, a copy of the originating summons, petition, notice of motion or other originating proceedings, or summons, order or notice shall be served instead of the original together with an intimation in writing that process in the form of the copy has been issued or otherwise launched.

(2)

Rules 25, 26, 27, 28 and 30 shall apply mutatis mutandis to service of any process under subrule (1).

(3)

Nothing in this rule shall affect any practice or power of the court under which, when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the court may (without affecting to exercise jurisdiction over any person out of the jurisdiction) cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing, or otherwise intervening.

[L.N. 22/2020, r. 7,8.]

22A.
Internationally registered and recognized courier services [Order 5, rule 22A]
(1)

Summons may be sent to the Defendant by way of registered courier service provider; service shall be effected only with the leave of the Court through an internationally registered and recognized courier service provider to the defendant's last known physical address.

(2)

Service shall be deemed to have been effected when the person being served acknowledges receipt by affixing his signature on the document or on confirmation of delivery by the courier service provider.

(3)

An officer of the court duly authorized to effect service shall file an Affidavit of Service attaching the way bill receipt or consignment note from the courier service provider confirming service.

(4)

An affidavit of service shall be proof enough that service was effected, even if the person being served declines to acknowledge receipt.

[L.N. 22/2020, r. 11.]

22B.
Electronic Mail Services (E-mail) [Order 5, rule 22B]
(1)

Summons sent by Electronic Mail Service shall be sent to the defendant's last confirmed and used E-mail address.

(2)

Service shall be deemed to have been effected when the Sender receives a delivery receipt.

(3)

Summons shall be deemed served on the day which it is sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or and if it is sent outside of the business hours and on a day that is not a business day it shall be considered to have been served on the business day subsequent.

(4)

An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the Electronic Mail Service delivery receipt confirming service.

[L.N. 22/2020, r. 11.]

22C.
Mobile-enabled messaging Applications [Order 5, rule 22C]
(1)

Summons may be sent by mobile-enabled messaging Applications to the defendant's last known and used telephone number.

(2)

Summons shall be deemed served on the day which it is sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or and if it is sent outside of the business hours and on a day that is not a business day it shall be considered to have been served on the business day subsequent.

(3)

Service shall be deemed to have been effected when mobile-enabled messaging services when the Sender receives a delivery receipt.

(4)

An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the delivery receipt confirming service.

[L.N. 22/2020, r. 11.]

23.
Service under contract [Order 5, rule 23.]

Without prejudice to the other rules in this Order, where—

(a)

leave to serve a summons or notice of a summons or other process has been allowed under rule 21 or 22; and

(b)

the contract provides that in the event of any suit in respect of the contract being begun, the process by which it is begun may be served on a defendant, or on such other person on his behalf as is specified in the contract, in such manner or at such place (whether in or outside Kenya) as is specified, then a summons or other process in that suit may be served as provided in the contract.

24.
Probate and marriage suits [Order 5, rule 24.]

In probate, Mohammedan or Hindu marriage, divorce and succession suits, service of a summons or notice of a summons may by leave of the court be allowed out of Kenya.

25.
Application to be supported by evidence [Order 5, rule 25.]

Every application for leave to serve such summons or notice on a defendant out of Kenya shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is not resident in Kenya or not, and the grounds on which the application is made; and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of Kenya under this Order.

[L.N. 22/2020, r. 9.]

26.
Order to fix time for entering appearance [Order 5, rule 26.]

Any order giving leave to effect such service or give such notice shall limit a time after such service or notice within which such defendant is to enter an appearance; such time to depend on the place or country where or within which the summons is to be served or the notice given.

27.
Service where defendant resides out of Kenya [Order 5, rule 27.]

Where leave to serve a summons or notice of summons out of Kenya has been granted under rule 21, and the defendant is a Commonwealth citizen as defined in subsections (1) and (2) of section 95 of the Constitution or resides in any of the countries for the time being mentioned in subsection (3) of that section, the summons shall be served in such manner as the Court may direct.

28.
Notice in lieu of summons [Order 5, rule 28.]
(1)

Deleted by L.N. 22/2020, r. 10.

(2)

Notice of summons shall be in Form No. 6 of Appendix A with such variations as the circumstances require.

[L.N. 22/2020, r. 10.]

29.
Service of notice of summons in a foreign country [Order 5, rule 29.]

Where leave is given to serve notice of summons in a foreign country to which this rule may by order of the Chief Justice from time to time be applied, the following procedure shall be adopted—

(a)

the notice to be served shall be sealed with the seal of the High Court for use out of Kenya, and shall be forwarded by the Registrar to the Minister for the time being responsible for Foreign Affairs together with a copy thereof translated into the language of the country in which service is to be effected, and with a request for the further transmission of the same through the diplomatic channel to the Government of the country in which leave to serve notice of the summons has been given; and such request shall be in Form No. 7 of Appendix A with such variations as circumstances may require;

(b)

the party bespeaking a copy notice of summons for service under this rule shall, at the time of bespeaking the same, file a praecipe in Form No. 8 of Appendix A;

(c)

an official certificate, or declaration upon oath, or otherwise, transmitted through the diplomatic channel by the government or court of a foreign country to which this rule applies, to the High Court shall, provided that it certifies or declares the notice of the summons to have been personally served, or to have been duly served upon the defendant in accordance with the law of such foreign country, or words to that effect, be deemed to be sufficient proof of such service, and shall be filed on record as, and be equivalent to, an affidavit of service within the requirements of these Rules in that behalf;

(d)

where an official certificate or declaration, transmitted to the High Court in the manner provided in paragraph (c), certifies or declares that efforts to serve a notice of summons have been without effect, the court may, upon the ex parte application of the plaintiff, order that the plaintiff be at liberty to bespeak a request for substituted service of such notice; and such order shall be in Form No. 9 of Appendix A, with such variations as circumstances may require;

(e)

a request for substituted service of a notice of summons under this rule may be bespoken by the plaintiff at the department where summonses are issued upon filing a praecipe in Form No. 8 of Appendix A, and the notice of summons and copy of the same, and the order, shall be sealed and transmitted to the Minister in the manner aforesaid together with a request in Form No. 10 of Appendix A, with such variations as circumstances may require.

30.
Extension of procedure to any order or notice [Order 5, rule 30.]

The court may direct that any summons, order or notice shall be served on any party or person in a foreign country, and the procedure prescribed by rule 27, with reference to service of notice of a summons, shall apply to service of any summons, order or notice so directed to be served.

31.
Application to Government [Order 5, rule 31.]

Rules 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 shall apply in the case of civil proceedings by the Government but shall not apply in the case of civil proceedings against the Government.

SERVICE OF FOREIGN LEGAL PROCESS IN KENYA
32.
Procedure [Order 5, rule 32.]

Where in any civil or commercial matter pending before a court or tribunal of a foreign country a letter of request from such court or tribunal for service on any person in Kenya of any process or citation in such matter is transmitted to the High Court, with an intimation that it is desirable that effect should be given to the same, the following procedure shall be adopted—

(a)

the letter or request for service shall be accompanied by a translation thereof in the English language, and by two copies of the process of citation to be served, and two copies thereof in the English language;

(b)

service shall be effected by delivering to and leaving with the person to be served one copy of the process to be served, and one copy of the translation thereof, in accordance with the rules and practice of the High Court of Kenya regulating service to persons;

(c)

after service has been effected the process server shall return to the Registrar of the High Court one copy of the process together with the evidence of service by affidavit of the person effecting the service verified by a magistrate and particulars of charges for the cost of effecting such service;

(d)

the particulars of charges for the cost of effecting service shall be submitted to the Registrar of the High Court, who shall certify the correctness of the charges, or such other amount as shall be properly payable for the cost of effecting service;

(e)

the Registrar shall return the letter of request for service received from the foreign country, together with the evidence of service with a certificate appended thereto duly sealed with the seal of the High Court for use out of the jurisdiction; and such certificate shall be in Form No. 11 of Appendix A.

33.
General powers of the court [Order 5, rule 33.]

Upon the application of the Attorney-General the court may make all such orders for substituted service or otherwise as may be necessary to give effect to rule 32.

34.
Request for service from foreign country [Order 5, rule 34.]

Where in any civil or commercial matter pending before a court or tribunal in any foreign country with which a Convention in that behalf has been or shall be made and applied to Kenya, a request for service of any document on a person in Kenya is received by the Registrar of the High Court from the consular or other authority of such country, the following procedure shall, subject to any special provisions contained in the Convention, be adopted—

(a)

the service shall be effected by the delivery of the original or a copy of the document, as indicated in the request, and the copy of the translation, to the party or person to be served in person by the process server;

(b)

no court fees shall be charged in respect of the service, and the particulars of charges of the officer or agent employed to effect service shall be submitted to the Registrar of the High Court, who shall certify the amount properly payable in respect thereof.

ORDER 6 - APPEARANCE OF PARTIES
1.
Time for appearance [Order 6, rule 1.]

Where a defendant has been served with summons to appear, he shall unless some order be made by the court, file his appearance within the time prescribed in the summons.

2.
Mode of appearance [Order 6, rule 2.]
(1)

Appearance shall be effected by delivering or sending by post to the proper officer a memorandum of appearance in triplicate in Form No. 12 Appendix A with such variation as the circumstances require, signed by the advocate 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 under subrule (1) the proper officer shall stamp and file the original and stamp the copies thereof with the court stamp showing the date on which they were received and—

(a)

if they were delivered to the proper officer, he shall return the stamped copies to the person appearing, or

(b)

if they were sent by post, he shall send one copy by post to the plaintiff’s address for service and one copy by post to the defendant’s address for service.

(3)

Where the defendant appears by delivering the memorandum of appearance as required under subrule (1) he shall within seven days from the date on which he appears serve a copy of the memorandum of appearance upon the plaintiff and file an affidavit of service.

(4)

Where a defence contains the information required by rule 3 it shall where necessary be treated as an appearance.

3.
Defendant’s address for service [Order 6, rule 3.]
(1)

The advocates of the defendant shall state in the memorandum of appearance the addresses for service being the place of business within Kenya and postal address.

(2)

A defendant appearing in person shall state in the memorandum of appearance his addresses for service being either his place of residence or his place of business and his postal address, and if he has neither residence nor place of business in Kenya he shall state a place and postal address within Kenya which shall be his addresses for service.

(3)

When a corporation appears without an advocate the memorandum of appearance shall state the addresses for service which may be either the registered office or a place of business of the corporation together with its postal address.

4.
Irregular memorandum, address fictitious [Order 6, rule 4.]

If the memorandum of appearance does not contain an address for service within Kenya it shall not be filed; and if any address given is illusory or fictitious the appearance may be set aside on the application of the plaintiff.

5.
Defendants appearing by same advocate [Order 6, rule 5.]

If two or more defendants appear in the same suit by the same advocate and at the same time, the names of all the defendants so appearing shall be inserted in the same memorandum of appearance.

6.
Delivery of documents to address for service [Order 6, rule 6.]
(1)

Documents may either be delivered by hand or by licensed courier service provider approved by the court to the address for service or may be posted to it.

(2)

Where delivery is disputed a certificate of posting or other evidence of delivery shall be filed.

ORDER 7 - DEFENCE AND COUNTERCLAIM
1.
Defence [Order 7, rule 1.]

Where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service.

2.
Defence of tender [Order 7, rule 2.]

Where in any suit a defence of tender before action is pleaded the defendant shall pay into court, in accordance with Order 27, the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into court has been made.

3.
Set-off and counterclaim [Order 7, rule 3.]

A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.

4.
Set-off or counterclaim in proceedings by Government [Order 7, rule 4.]

Notwithstanding anything contained in rule 2, a person shall not be entitled to avail himself of any set-off or counterclaim in any proceedings by the Government for the recovery of taxes, duties or penalties, or to avail himself in proceedings by the Government of any other nature of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.

5.
Documents to accompany defence or counterclaim [Order 7, rule 5.]

The defence and counterclaim filed under rule 1 and 2 shall be accompanied by—

(a)

an affidavit under Order 4 rule 1(2) where there is a counterclaim;

(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 court be furnished at least fifteen days prior to the trial conference under Order 11.

6.
Persons in representative capacity [Order 7, rule 6.]

If either party wishes to deny the right of any other party to claim as executor or as trustee whether in bankruptcy or otherwise, or in any representative or other alleged capacity or the alleged constitution of any partnership firm, he shall deny the same specifically.

7.
Pleading a counterclaim [Order 7, rule 7.]

Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his statement of defence, state specifically that he does so by way of counterclaim.

8.
Title of counterclaim [Order 7, rule 8.]

Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence.

9.
Claim against person not party [Order 7, rule 9.]

Where any such person as is mentioned in rule 8 is not a party to the suit, he shall be summoned to appear by being served with a copy of the defence, which shall be served in accordance with the rules for regulating service of summons.

10.
Appearance by added parties [Order 7, rule 10.]

Any person not already a party to the suit who is served with a defence and counterclaim as aforesaid must appear thereto as if he had been served with a summons to appear in the suit.

11.
Reply to counterclaim [Order 7, rule 11.]

Any person named in a defence as a party to a counterclaim thereby made may, unless some other or further order is made by the court, deliver a reply within fifteen days after service upon him of the counterclaim and shall serve a copy thereof on all parties to the suit.

12.
Exclusion of counterclaim [Order 7, rule 12.]

Where a defendant sets up a counterclaim, if the plaintiff or any other person named in the manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent suit, he may at any time before reply, apply to the court for an order that such counterclaim may be excluded, and the court may, on the hearing of such application, make such order as shall be just.

13.
Discontinuance, stay or dismissal of suit [Order 7, rule 13.]

If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

14.
Judgment for balance [Order 7, rule 14.]

Where in any suit a set-off or counterclaim is established as a defence against the plaintiff’s claim, the court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

15.
Defence or set-off founded on separate grounds [Order 7, rule 15.]

Where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall be stated, as far as practicable, separately and distinctly.