Civil Procedure Act

Section 1. Short title and application Section 1(1) This Act may be cited as the Civil Procedure Act. Section 1(2) This Act applies to proceedings in the High Court and, subject to the Magistrates' Courts Act (Cap. 10), to proceedings in subordinate courts. [Act No. 17 of 1967 , s. 37.]

Section 2. Interpretation Section any adjudication from which an appeal lies as an appeal from an order; or

Section 3. Saving of special jurisdiction and powers Section In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force.

Section 4. Pecuniary jurisdiction Section Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject- matter of which exceeds the pecuniary limits, if any, of its ordinary jurisdiction.

Section 1A. Objective of Act Section 1A(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. Section 1A(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1). Section 1A(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. [Act No. 6 of 2009 , Sch.]

Section 1B. Duty of Court Section the just determination of the proceedings;

Section 3A. Saving of inherent powers of court. Section Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

Section 5. Courts to try all civil suits unless barred Section Any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred.

Section 6. Stay of suit Section No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. Explanation. —The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court. [Act No. 10 of 1969 , Sch.]

Section 7.Res judicata Section No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. —...

Section 8. Bar to further suit Section Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of that cause of action.

Section 9. When foreign judgment not conclusive Section where it has not been pronounced by a court of competent jurisdiction;

Section 10.[Repealed by ActNo. 46 of 1963, 2nd Sch.]

Section 11. Court in which suit to be instituted Section if a suit is instituted in a court other than a court of the lowest grade competent to try it, the magistrate holding such court shall return the plaint for presentation in the court of the lowest grade competent to try it if in his opinion there is no point of law involved or no other good and sufficient reason for instituting the suit in his court; and

Section 12. Suit to be instituted where subject matter situate Section for the recovery of immovable property, with or without rent or profits;

Section 13. Suit for immovable property situate within jurisdiction of different courts Section Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate, provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such court.

Section 14. Suit for compensation for wrong to the person or movables Section Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of those courts. Illustration .—(a) A residing in Mombasa beats B in Nairobi. B may sue A either in Mombasa or Nairobi. Illustration .—(b) A residing in Mombasa publishes at Nairobi statements defamatory of B. B may sue A either in Mombasa or Nairobi.

Section 15. Other suits to be instituted where defendant resides or cause of action arises Section the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or

Section 16. Objections to jurisdiction Section No objection as to the place of suing shall be allowed on appeal unless such objection was taken in the court of first instance and there has been a consequent failure of justice.

Section 17. Power to transfer suits which may be instituted in more than one court Section Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties, or the court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another court; and the High Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed.

Section 18. Power of High Court to withdraw and transfer case instituted in subordinate court Section 18(1)(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or Section 18(1)(b) try or dispose of the same; or Section 18(1)(b)(i) try or dispose of the same; or Section 18(1)(b)(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or Section 18(1)(b)(iii) retransfer the same for trial or disposal to the court from which it was withdrawn. Section 18(2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

Section 19. Institution of suits

Section 20. Service on defendant Section Where a suit has been duly instituted the defendant shall be served in manner prescribed to enter an appearance and answer the claim.

Section 21. Service where defendant resides in another county Section 21(1) Any document which is required to be served in connexion with a suit may be sent for service in another county to a court having jurisdiction in that county. Section 21(2) The court to which such document is sent shall, upon receipt thereof, proceed as if it had been issued by such court and shall then return the document to the court of issue together with the record, if any, of its proceedings with regard thereto. [Act No. 18 of 2018 , Sch.]

Section 22. Power to order discovery and the like Section make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

Section 23. Summons to witness Section Sections 21 and 22 shall apply to summonses to give evidence or to produce documents or other material objects.

Section 24. Penalty for default

Section 25. Judgment and decree

Section 26. Interests Section 26(1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. Section 26(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.

Section 27. Costs Section 27(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. Section 27(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. [Act No. 19 of 1985 , Sch.]

Section 28. Application to orders Section The provisions of this Act relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

Section 29. Definition of "court which passed a decree"

Section 30. Court by which decree may be executed Section A decree may be executed either by the court which passed it or by the court to which it is sent for execution.

Section 31. Transfer of decree Section 31(1)(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of that other court; or Section 31(1)(b) if such person has no property within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other court; or Section 31(1)(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which has passed it; or Section 31(1)(d) if the court which has passed the decree considers for any other reason, which it has recorded in writing, that the decree should be executed by such other court. Section 31(2) The court which passed a decree may of its own motion send it for execution to any court of inferior but competent jurisdiction.

Section 32. Result of execution proceedings to be certified Section The court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution, or where the former court fails to execute the same the circumstances attending such failure.

Section 33. Powers of court in executing transferred decree Section 33(1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. Section 33(2) All persons disobeying or obstructing the execution of the decree shall be punishable by such court in the same manner as if it had passed the decree; and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

Section 34. Questions to be determined by court executing decree Section 34(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. Section 34(2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees. Section 34(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court. Explanation .—For the purposes of this section, a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit.

Section 35. Repealed

Section 36. Transferee of decree Section Every transferee of a decree shall hold the same subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder.

Section 37. Legal representative Section 37(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of such deceased, or against any person who has intermeddled with the estate of such deceased. Section 37(2) Where the decree is executed against such legal representative, or against any person as aforesaid, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

Section 38. Powers of court to enforce execution Section by delivery of any property specifically decreed;

Section 39. Enforcement of decree against legal representative Section 39(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property. Section 39(2) Where no such property remains in the possession of the judgment-debtor, and he fails to satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been against him personally.

Section 40. Arrest and detention Section 40(1)(i) for the purpose of making an arrest under this section, no dwelling- house shall be entered after sunset and before sunrise; Section 40(1)(ii) no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto; but when the officer authorized to make the arrest has duly gained access to any dwelling- house he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found; Section 40(1)(iii) if the room is in the actual occupancy of a woman who is not the judgment-debtor, and who according to the custom of her community does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest; Section 40(1)(iv) where the decree in execution of which a judgment-debtor is arrested is a decree for the payment of money and the judgment-debtor pays the amount of the decre...

Section 41. Subsistence allowances Section The Cabinet Secretary may, by notice in the Gazette , fix scales of monthly allowances payable for the subsistence of a judgment-debtor. [L.N. 300/1956, Act No. 8 of 1968 , Sch., Act No. 10 of 1969 , Sch.]

Section 42. Detention and release Section 42(1)(a) where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period not exceeding six months; and Section 42(1)(b) in any other case, for a period not exceeding six weeks: Section 42(1)(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the prison; or Section 42(1)(ii) on the decree against him being otherwise fully satisfied, if the court so orders; or Section 42(1)(iii) on the request of the person on whose application he has been so detained, if the court so orders; or Section 42(1)(iv) on the omission of the person, on whose application he has been so detained, to pay subsistence allowance. Section 42(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be rearrested under the decree in execution of which he was detained in prison.

Section 43. Release on ground of illness Section 43(1) At any time after a warrant for the arrest of a judgment-debtor has been issued, the court may cancel it on the ground of his serious illness. Section 43(2) Where a judgment-debtor has been arrested, the court may release him if in its opinion he is not in a fit state of health to be detained in prison. Section 43(3)(a) by the superintendent of the prison in which he is confined on the grounds of the existence of any infectious or contagious disease; or Section 43(3)(b) by the committing court or the High Court on the ground of his suffering from any serious illness. Section 43(4) A judgment-debtor released under this section may be rearrested, but the period of his detention in prison shall not in the aggregate exceed that prescribed by section 42 of this Act.

Section 44. Property liable to attachment and sale in execution of a decree Section 44(1)(i) the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor and of his wife and children, and those personal ornaments from which, in accordance with religious usage, a woman cannot be parted; Section 44(1)(ii) the tools and implements of a person necessary for the performance by him of his trade or profession; Section 44(1)(iii) the first ten thousand shillings in value of his livestock, if any; and Section 44(1)(iii)(a) the first ten thousand shillings in value of his livestock, if any; and Section 44(1)(iii)(b) the first five thousand shillings in value of all implements, tools, utensils, plant and machinery used in connection with stock or dairy farming or in the production of crops or plants; and Section 44(1)(iii)(c) the first one thousand shillings in value of agricultural produce necessary to enable him to earn his livelihood; Section 44(1)(iv) books of accounts; Section 44(1)(v) a right to sue in damages; Section 44(1)(vi) a right of personal service; Section 44(1)(vii) stipends and gratuities allowed to pensioners of the Government, or payable out of a...

Section 45. Seizure of property in dwelling-house Section 45(1) No person in executing any process under this Act directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise. Section 45(2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto; but when the person executing the process has duly gained access to any dwelling-house he may break open the door of any room in which he has reason to believe any such property to be. Section 45(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the custom of the country, does not appear in public, the person executing the process shall give notice to the woman that she is at liberty to withdraw; and after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter the room for the purpose of seizing the property, using at the same time every precaution consistent with these provisions to prevent its clandestine removal.

Section 46. Property attached in execution of decrees of several courts Section 46(1) Where property not in the custody of a court is under attachment in execution of decrees of more courts than one, the court which shall receive and realize that property and shall determine any claim thereto and any objection to the attachment thereof shall be the court of the highest grade, or, where there is no difference in grade between the courts, the court under whose decree the property was first attached. Section 46(2) Nothing in this section shall invalidate any proceeding taken by a court executing one of the decrees.

Section 47. Private alienation of property after attachment to be void