Civil Procedure Rules

Section 1. Pleadings generally [Order 2, rule 1] Section 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. Section 1(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. Section 1(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.

Section 1. Commencement of suit and case track allocation [Order 3, rule 1] Section 1(1) Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed. Section 1(2) The claim shall indicate at the heading the choice of track; namely “small claims”, “fast track” or “multi-track”. Section 1(3) For purposes of this rule— Section 1(3)(a) "small claim" refers to a simple claim whose monetary value does not exceed two hundred thousand shillings. Section 1(3)(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. Section 1(3)(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. Section 1(4) In choosing a case track, the plaintiff shall have regard to all relevant considerations including the following— Section 1(4)(a) the complexity of the issues of fact, law or evidence; Section 1(4)(b) the financial value of the claim; Sect...

Section 1. Particulars of plaint [Order 4, rule 1] Section 1(1) The plaint shall contain the following particulars— Section 1(1)(a) the name of the court in which the suit is brought; Section 1(1)(b) the name, description and place of residence of the plaintiff, and an address for service; Section 1(1)(c) the name, description and place of residence of the defendant, so far as they can be ascertained; Section 1(1)(d) the place where the cause of action arose; Section 1(1)(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and Section 1(1)(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. Section 1(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. Section 1(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. Secti...

Section 1. Issue of summons [Order 5, rule 1] Section 1(1) When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein. Section 1(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. Section 1(3) Every summons shall be accompanied by a copy of the plaint. Section 1(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. Section 1(5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with subrule (2) of this rule. Section 1(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.]

Section 1. Time for appearance [Order 6, rule 1] Section 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.

Section 1. Defence [Order 7, rule 1] Section 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.

Section 1. Amendment of pleading without leave [Order 8, rule 1] Section 1(1) A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed. Section 1(2) Where an amended plaint is served on a defendant— Section 1(2)(a) if he has already filed a defence, the defendant may amend his defence; and Section 1(2)(b) the defence or amended defence shall be filed either as provided by these rules for the filing of the defence or fourteen days after the service of the amended plaint whichever is later. Section 1(3) Where an amended defence is served on a plaintiff— Section 1(3)(a) if the plaintiff has already served a reply on that defendant, he may amend his reply; and Section 1(3)(b) the period for service of his reply or amended reply is fourteen days after the service on him of the amended defence. Section 1(4) References in subrule (2) and (3) to a defence and a reply include references to a counterclaim and a defence to counterclaim respectively. Section 1(5) Where an amended counterclaim is served on a party (other than the plaintiff) against whom the counterclaim is made, subrule (2) shall apply as if the counterclaim were a...

Section 1. Applications, appearances or acts in person, by recognized agent or by advocate [Order 9, rule 1] Section any such appearance shall, if the court so directs, be made by the party in person; and

Section 1. Suits against infants and persons of unsound mind [Order 10, rule 1] Section 1(1) Where no appearance has been entered for a defendant who is an infant or person of unsound mind, before proceeding further the plaintiff shall apply to the court for an order that some proper person be assigned guardian of such defendant by whom he may appear and defend the suit. Section 1(2) No order may be made under sub-rule (1) unless the summons has been served and Order 32, rule 3(4) has been complied with, unless the court otherwise orders.

Section 1. Application [Order 11, rule 1] Section This Order shall apply to all suits other than suits for small claims or such other suits as the Court may order to vary the whole or any part of this Order.[L.N. 22/2020, r. 13.]

Section 1. When neither party attends [Order 12, rule 1] Section If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.

Section 1. Notice of admission of case [Order 13, rule 1] Section Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the truth of the whole or part of the case of any other party.

Section 1. Endorsements on documents admitted in evidence [Order 14, rule 1] Section 1(1) Subject to subrule (2), there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars— Section 1(1)(a) the number and title of the suit; Section 1(1)(b) the party producing the document; Section 1(1)(c) the date on which it was produced; and Section 1(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under rule 2, the particulars aforesaid shall be endorsed on the copy, and the endorsement thereon shall be signed or initialed by the judge or by an officer of the court under his direction.

Section 1. Framing of issues [Order 15, rule 1] Section 1(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Section 1(2) Issues are of two kinds— Section 1(2)(a) issues of fact; and Section 1(2)(b) issues of law. Section 1(3) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute a defence. Section 1(4) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

Section 1. Summons to attend to give evidence or produce documents [Order 16, rule 1] Section At any time before the trial conference under Order 11 the parties may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.

Section 1. Hearing from day to day [Order 17, rule 1] Section 1(1) Once the suit is set down for hearing, it shall not be adjourned unless a party applying for adjournment satisfies the court that it is just to grant the adjournment. Section 1(2) When the court grants an adjournment it shall give a date for further hearing or directions.

Section 1. Right to begin [Order 18, rule 1] Section The plaintiff shall have the right to begin unless the court otherwise orders.

Section 1. Power to order any point to be proved by affidavit [Order 19, rule 1] Section Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:Provided that, where it appears to the court that either partybona fidedesires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

Section 1. Order for accounts [Order 20, rule 1] Section Where a plaint prays for an account, or where the relief sought or the plaint involves the taking of an account, if the defendant either fails to appear or does not after appearance by affidavit or otherwise satisfy the court that there is some preliminary question to be tried, an order for the proper accounts with all necessary inquiries and directions usual in similar cases shall forthwith be made.

Section 1. Judgment, when pronounced [Order 21, rule 1] Section In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of the trial notice of which shall be given to the parties or their advocates.Provided that where judgment is not given within sixty days the judge shall record reasons thereof copy of which shall be forwarded to the Chief Justice and shall immediately fix a date for judgment.

Section 1. Modes of paying money under decree [Order 22, rule 1] Section 1(1) All money payable under a decree or order shall be paid as follows— Section 1(1)(a) into the court whose duty it is to execute the decree; Section 1(1)(b) direct to the decree-holder; or Section 1(1)(c) otherwise as the court which made the decree directs. Section 1(2) Where any payment is made under subrule (1) (a), notice of such payment shall be sent by the court to the decree-holder and his advocate, if any.

Section 1. Order for the attachment of debts [Order 23, rule 1] Section 1(1) A court may, upon theex parteapplication of a decree-holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 22, rule 42 owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree- holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid. Section 1(2) At least seven days before the day of hearing the ordernisishall be served on the garnishee, and, unless otherwise ordered, on the judgment-deb...

Section 1. No abatement by party’s death if right survives [Order 24, rule 1] Section The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues.

Section 1. Withdrawal by plaintiff [Order 25, rule 1] Section At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.

Section 1. Security for costs [Order 26, rule 1] Section In any suit the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party.

Section 1. Payment into court [Order 27, rule 1] Section 1(1) In any suit for a debt or damages any defendant may at any time after appearance upon notice to the plaintiff pay into court a sum of money in satisfaction of the claim or (where several causes of action are joined in one suit) in satisfaction of one or more of the causes of action. Section 1(2) Where money is paid into court in satisfaction of one or more of several causes of action the notice shall specify the causes of action in respect of which payment is made and the sum paid in respect of each such cause of action unless the registrar or, in a subordinate court, presiding magistrate, otherwise orders. Section 1(3) The notice shall be in Form No. 19 of Appendix A but may be modified or withdrawn or delivered in an amended form by leave of the registrar or, in a subordinate court, the presiding magistrate, upon such terms as are just except that the defendant may, without leave deliver a notice increasing the amount of any sum paid into court, which shall be in Form No. 20 of Appendix A.

Section 1. Cases in which court may issue commission to examine witnesses [Order 28, rule 1] Section Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the limits of its jurisdiction who is exempted under the Act from attending the court or who is from sickness or infirmity unable to attend it.

Section 1. Interpretation [Order 29, rule 1] Section 1(1) The expressions “civil proceedings by the Government”, “civil proceedings against the Government” and “civil proceedings by or against the Government” have the same respective meanings as in Part III of the Government Proceedings Act and do not include any of the proceedings specified in subsection (3) of section 19 of that Act—“civil proceedings to which the Government is a party” has the same meaning as it has for the purposes of Parts IV and V of the Government Proceedings Act (Cap. 40) by virtue of subsection (3) of section 2 of that Act;“order against the Government” means any order (including a judgment, decree, rule, award, declaration and an order for costs) made in civil proceedings brought by or against the Government, or in connection with any arbitration to which the Government is a party, in favour of any person against the Government or against a Government department or against a public officer as such. Section 1(2) Except where the context otherwise requires, references to suits where the subject-matter is immovable or movable property shall be construed as including proceedings against the Government for an...

Section 1. Suing of partners in name of firm [Order 30, rule 1] Section Any two or more persons claiming or being liable as partners and carrying on business in Kenya may sue or be sued in the name of the firm (if any) in which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct.

Section 1. Representation of beneficiaries in suits concerning property vested in trustees [Order 31, rule 1] Section In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit, but the court may, if it thinks fit, order them or any of them to be made parties.

Section 1. Minor to sue by next friend [Order 32, rule 1] Section 1(1) Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Section 1(2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed.

Section 1. Suits may be instituted by a pauper [Order 33, rule 1] Section 1(1) Subject to the following rules, any suit may be instituted by a pauper. Section 1(2) For the purposes of this Order a person is a“pauper”when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the institutions of such suit.

Section 1. Practice under this Order [Order 34, rule 1] Section An application for relief under this Order shall be made by originating summons unless made in a pending suit in which case it shall be made by summons in the suit.

Section 1. Power to state case for court’s opinion [Order 35, rule 1] Section 1(1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the court, and providing that, upon the finding of the court with respect to such question— Section 1(1)(a) a sum of money fixed by the parties or to be determined by the court shall be paid by one of the parties to the other of them; or Section 1(1)(b) some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or Section 1(1)(c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement. Section 1(2) Every case stated under this rule shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the court to decide the question raised thereby.

Section 1. Summary judgment [Order 36, rule 1] Section 1(1) In all suits where a plaintiff seeks judgment for— Section 1(1)(a) a liquidated demand with or without interest; or Section 1(1)(b) the recovery of land, with or without a claim for rent ormesneprofits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, Section 1(2) The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed. Section 1(3) Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.

Section 1. Who may take out originating summons and in respect of what matters [Order 37, rule 1] Section any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir orcestui quetrust;

Section 1. Staying several suits against the same defendant [Order 38, rule 1] Section Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of the parties with notice to all affected parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.

Section 1. Where defendant may be called upon to furnish security for appearance [Order 39, rule 1] Section has absconded or left the local limits of the jurisdiction of the court; or

Section 1. Cases in which temporary injunction may be granted [Order 40, rule 1] Section that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or

Section 1. Appointment of receivers [Order 41, rule 1] Section 1(1) Where it appears to the court to be just and convenient, the court may by order— Section 1(1)(a) appoint a receiver of any property, whether before or after decree; Section 1(1)(b) remove any person from the possession or custody of the property; Section 1(1)(c) commit the same to the possession, custody or management of the receiver; and Section 1(1)(d) confer upon the receiver all such powers as to bringing and defending suits and for the realisation, management, protection, preservation, and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of such documents as the owner himself has, or such of those powers as the court thinks fit. Section 1(2) Nothing in this rule shall authorise the court to remove from the possession or custody of any person property whom any party to the suit has not a present right so to remove.

Section 1. Form of appeal [Order 42, rule 1] Section 1(1) Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. Section 1(2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

Section 1. Appeals from Orders [Order 43, rule 1] Section 1(1) An appeal shall lie as of right from the following Orders and rules under the provisions of section 75(1)(h) of the Act— Section 1(1)(a) Order 1 (parties to suits); Section 1(1)(b) Order 2 (pleadings generally); Section 1(1)(c) Order 3 (frame and institution of suit); Section 1(1)(d) Order 4, rule 9 (return of plaint); Section 1(1)(e) Order 7, rule 12 (exclusion of counterclaim); Section 1(1)(f) Order 8 (amendment of pleadings); Section 1(1)(g) Order 10, rule 11 (setting aside judgment in default of appearance); Section 1(1)(h) Order 12, rule 7 (setting aside judgment or dismissal for non-attendance); Section 1(1)(i) Order 15, rules 10, 12 and 18 (sanctions against witnesses and parties in certain cases); Section 1(1)(j) Order 19 (affidavits); Section 1(1)(k) Order 22, rules 25, 57, 61(3) and 73 (orders in execution); Section 1(1)(l) Order 23, rule 7 (trial of claim of third person in attachment of debts ); Section 1(1)(m) Order 24, rules 5, 6 and 7 (legal representatives); Section 1(1)(n) Order 25, rule 5 (compromise of a suit); Section 1(1)(o) Order 26, rules 1 and 5(2) (security for costs); Section 1(1)(p) Order 27,...

Section 1. Who may appeal as a pauper [Order 44, rule 1] Section Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject in all matters, including the presentation of such application, to the provisions relating to suits by paupers in so far as those provisions are applicable:Provided that the court shall dismiss the application unless upon a perusal of the memorandum of appeal and of the record of the lower court, it sees reason to think that the decree is contrary to law, or against the weight of the evidence.

Section 1. Application for review of decree or order [Order 45, rule 1] Section 1(1) Any person considering himself aggrieved— Section 1(1)(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or Section 1(1)(b) by a decree or order from which no appeal is hereby allowed, Section 1(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.

Section 1. Parties to a suit may apply for arbitration [Order 46, rule 1] Section Where in any suit all the parties interested who are not under disability agree that any matter in difference between them in such suit shall be referred to arbitration, they may, at any time before judgment is pronounced, apply to the court for an order of reference.

Section 1. Institution of suits in High Court [Order 47, rule 1] Section Every suit in the High Court may be instituted at the central office of that court situate in Nairobi or in a District Registry.

Section 1. Process to be served at expense of party issuing [Order 48, rule 1] Section 1(1) Every process issued under these Rules shall be served at the expense of the party on whose behalf it is issued unless the court otherwise directs. Section 1(2) The court fee chargeable for such service shall be paid within a time to be fixed before the process is issued.

Section 1. Registrar to be ministerial officer [Order 49, rule 1] Section Wherever in these Rules it is provided that any ministerial act or thing may be done by the court, that act or thing may be done by the registrar or by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand.

Section 1. Month means calendar month [Order 50, rule 1] Section Where by these Rules or by any judgment or order given or made, time for doing any act or taking any proceedings is limited by months, and where the word “month” occurs in any document which is part of any legal procedure under these Rules, such time shall be computed by calendar months unless otherwise expressed.

Section 1. Procedure [Order 51, rule 1] Section All applications to the court shall be by motion and shall be heard in open court unless the court directs the hearing to be conducted in chambers or unless the rules expressly provide.