Civil Procedure Act

This Act may be cited as the Civil Procedure Act.

The Act's overriding objective is to secure just, expeditious, proportionate and affordable resolution of civil disputes; the Court must seek to give effect to this objective, and parties and their advocates must assist the Court and comply with its directions and orders.

Duty of Court: the just determination of the proceedings;

Section 2 is titled "Interpretation" and refers to adjudication and appeals.

This Act does not limit or affect any special jurisdiction, power, form or procedure conferred or prescribed by any other law in force.

The Act does not limit the court's inherent power to make orders necessary for the ends of justice or to prevent abuse of its process.

Except where expressly provided otherwise, courts do not have jurisdiction over suits whose amount or value exceeds their pecuniary limits.

Section 10 repealed by Act No. 46 of 1963, 2nd Schedule.

If a suit is started in a court that is not the lowest grade competent to try it, the magistrate holding that court must return the plaint to the lowest competent court when there is no point of law or other good reason to try it in the higher court.

A suit for the recovery of immovable property must be instituted where the subject matter is situated; this includes actions for rent or profits.

A suit concerning immovable property located in the jurisdictions of different courts may be started in any court within whose local limits any portion of the property is situated, provided the entire claim is cognizable by that court in respect of the subject-matter value.

Where a wrong to the person or movable property occurs in one court's area and the defendant lives or does business in another, the plaintiff may sue in either court.

Suits may be instituted where the defendant resides, carries on business, or personally works for gain.

On appeal, objections about the place of suing are not allowed unless they were raised in the court of first instance and caused a failure of justice.

A defendant may apply to the High Court to transfer a suit to another subordinate court; the High Court must decide which court will hear the suit after considering objections.

The High Court has power to withdraw or transfer suits, appeals or other proceedings between itself and subordinate courts, and a court trying a transferred case may retry it or continue from where it was transferred, subject to special directions.

Title: "Institution of suits."

The defendant must be served in the prescribed manner so they can enter an appearance and answer the claim.

Documents required to be served in a suit may be sent for service in another county to a court in that county.

Empowers making orders necessary or reasonable for interrogatories, admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence.

Sections 21 and 22 apply to summonses to give evidence or to produce documents or other material objects.

Section 24. Penalty for default

Section 25. Judgment and decree

The court may order interest on money decrees from the date of the suit to the date of the decree and further interest from the decree to payment at rates the court considers reasonable; if the decree is silent the court is deemed to have ordered interest at 6 per cent per annum.

The court or judge has discretion over costs and may order interest on costs up to fourteen per cent per annum.

Any court shall have jurisdiction to try all suits of a civil nature, subject to the provisions herein, except where its cognizance is expressly or impliedly barred.

Courts must not proceed with trial of a suit when the same matter is directly and substantially in issue in an earlier suit between the same parties (or those they claim under) pending in any court with jurisdiction in Kenya; pendency in a foreign court does not prevent a Kenyan court from trying the same matter.

Courts must not try a suit or issue that was already directly and substantially in issue and finally decided in a former suit between the same parties (res judicata).

A plaintiff who is precluded by rules from bringing another suit on a particular cause of action is not allowed to bring a suit for that cause of action.

A foreign judgment is not conclusive where it has not been pronounced by a court of competent jurisdiction.

Provisions of this Act that relate to the execution of decrees apply, so far as applicable, to the execution of orders.

Defines the term "court which passed a decree".

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

The court that passed a decree may, on its own motion, send the decree for execution to any inferior but competent court; Section 31 lists grounds when a decree may be transferred to another court.

A court receiving a decree for execution must certify to the issuing court that the decree was executed, or if it failed to execute it, must certify the circumstances of that failure.

A court that receives a transferred decree has the same powers to execute it as if the decree had been originally passed by that court; and all persons must not disobey or obstruct execution or they may be punished by that court.

The court executing a decree must decide disputes between the parties about executing, discharging or satisfying that decree; the court may treat execution proceedings as a suit (or vice versa) and may order extra court fees, subject to limitation or jurisdiction objections.

Section 35 is repealed.

A transferee of a decree must hold it subject to any equities the judgment-debtor could have enforced against the original decree-holder.

If a judgment-debtor dies before a decree is satisfied, the decree-holder may apply to the court to execute the decree against the deceased's legal representative or any person who intermeddled with the estate; the representative is liable only for assets that came to his hands and not duly disposed of, and the court may compel production of accounts.

Gives the court the power to enforce execution by delivery of any property specifically decreed.

A decree against a party as legal representative for payment from a deceased person’s property may be executed by attaching and selling that property.

Rules on arrest and entry into dwelling-houses, including an obligation on arresting officers to notify certain women and to release a judgment-debtor who pays a money decree; and a power for the Cabinet Secretary to restrict arrests by Gazette notice.

The Cabinet Secretary may, by notice in the Gazette, set monthly subsistence allowance scales for a judgment-debtor.

A judgment-debtor released from detention under this section shall not be liable to be rearrested under the decree in execution of which he was detained.

Courts and certain prison or judicial authorities may release or cancel detention of a judgment-debtor on grounds of serious or infectious illness.

Lists specific classes of property and rights that are exempt from attachment and sale in execution of a decree (for example: necessary wearing apparel of the judgment‑debtor and family; tools for trade; specified minimum values of livestock, implements, and produce; books of accounts; rights to sue in damages; stipends and certain pensions; two thirds of a public officer's salary; contingent rights; future maintenance; and any fund or allowance declared exempt).

Persons executing seizure processes may not enter a dwelling-house between sunset and sunrise; they must give notice to a woman who does not appear in public and, after allowing reasonable time and facility, may enter her room to seize property and may break open room doors when they have lawfully gained access and have reason to believe the property is there.

When property not in a court's custody is attached under execution by more than one court, the court that must receive and realise the property and determine claims or objections is the court of highest grade, or if grades are equal, the court whose decree first attached the property.

Private alienation of property after attachment is void.

When immovable property is sold in execution of a decree and the sale becomes absolute, the property is treated as vested in the purchaser from the time of sale (not from when the sale becomes absolute).

No suit may be maintained against a person claiming title under a purchase certified by the court on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims; but the section does not bar a suit to declare that a certified purchaser's name was fraudulently inserted or without the real purchaser's consent, nor interfere with a third person's right to proceed against property sold to the certified purchaser to satisfy the third person's claim against the real owner.

When a court holds assets and multiple decree-holders have lodged applications, assets (after realization costs) are distributed among decree-holders by priority of lodgment; a mortgagee or encumbrancer is not entitled to any surplus from a sale subject to a mortgage or charge; applications must be endorsed by the court or an authorized officer at lodgment with the day and hour; the section does not affect Government rights.

The court may order a judgment-debtor (or person acting for them) to be detained in prison for up to thirty days and may direct that the decree-holder or purchaser be put in possession of the immovable property when possession has been resisted without just cause.

Court has the power to issue a commission to examine any person.

The High Court and certain subordinate courts may issue commissions to examine persons; courts receiving a commission must examine the person and return the executed commission and evidence to the issuing court unless the issuing order directs otherwise.

The High Court or a subordinate court (with the High Court's sanction) may issue a letter of request to examine a witness who is residing outside Kenya, instead of issuing a commission.

Commissions issued by foreign courts for examination of persons in Kenya must be executed and returned in the manner authorized by the High Court.

Review may be by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

Aliens: enemy aliens living in Kenya with the President's permission, and alien friends, may sue in Kenyan courts; enemy aliens without that permission or those residing in a foreign country shall not sue.

A foreign state may sue in any Kenyan court if Kenya has recognized it and the suit enforces a private right of the state's head or an officer; every court must take judicial notice of whether a foreign state is recognized by Kenya.

A person who holds money or property claimed by two or more adverse claimants may sue in interpleader or intervene in an existing suit to determine the rightful claimant and obtain indemnity, provided no pending suit can decide the rights of all parties.

References to arbitration by an order in a suit, and proceedings thereunder, are to be governed in the manner prescribed by rules.

There shall be a Mediation Accreditation Committee to be appointed by the Chief Justice; the Chief Justice shall designate a Mediation Registrar responsible for administration; the Committee must set certification criteria, propose certification rules, maintain a register, enforce a code of ethics, and set up training programmes.

The Court may refer disputes to mediation in three circumstances; when a dispute is referred the parties must select a mediator from the mediation register and must record and register any agreement with the Court.

Parties or the Court may refer a suit to another method of dispute resolution; such settlements are enforceable as judgments and judgments entered under this section are not appealable.

Power to enforce private mediation agreements

Power to state case for opinion of court

In cases of public nuisance, the Attorney-General or two or more persons (with the Attorney-General's written consent) may bring a suit for declaratory relief, an injunction, or other appropriate relief even if no special damage has occurred.

Section 62: Public charity — removing any trustee.

Section 63. Supplemental proceedings Section issue a warrant to arrest the defendant and bring him before the court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to prison;

If the court finds an arrest, attachment or injunction was sought on insufficient grounds or the plaintiff's suit fails with no reasonable ground, the defendant may apply and the court may order the plaintiff to pay reasonable compensation up to two thousand shillings.

Appeals may be made from decrees of subordinate courts and from decrees of a Kadhi's Court; on such appeals the Chief Kadhi or two other Kadhis must sit as assessor(s).

Section 65A has been renumbered as section 79B.

An appeal may be brought from the decrees or any part of decrees and from the orders of the High Court to the Court of Appeal, subject to any express provision in the Act and any prescribed security requirements.

An appeal may be brought from an original decree passed ex parte; no appeal lies from a decree passed with the consent of the parties.

If a party aggrieved by a preliminary decree does not appeal that preliminary decree, that party is precluded from disputing the preliminary decree's correctness in any subsequent appeal from the final decree.

If an appeal is heard by two or more judges, the appeal must be decided according to the opinion of the judges or the majority; if two judges are split, the appeal must be reheard by a court with an uneven number of judges of at least three.

Section 70 renumbered as section 79A.

Section 71 is renumbered.

A second appeal to the High Court from a first-class subordinate court (on appeal from a third-class subordinate court) lies only on a question of law, and such an appeal is final.

Section 72 permits a second appeal from the High Court where (a) the decision is contrary to law or to some usage having the force of law; (b) the decision failed to determine some material issue of law or usage having the force of law; or (c) there was a substantial procedural error or defect which may have affected the decision. It also states that an appeal may lie under this section from an appellate decree passed ex parte.

Section 73 has been deleted.

Section 74 has been deleted.

Lists the types of orders from which an appeal to the High Court or Court of Appeal lies, and states that no appeal lies from an order passed in appeal under this section.

Generally no appeal lies from any order made by a court; errors affecting a decree may be raised in the memorandum of appeal; a party aggrieved by an order of remand who does not appeal is precluded from later disputing its correctness.

Section 77. What court to hear appeal

The appellate court has specified powers (including determining a case finally, remanding, framing issues, taking or requiring evidence, and ordering a new trial) and must, subject to the foregoing, have the same powers and perform as nearly as may be the same duties as courts of original jurisdiction in respect of suits instituted therein.

Section 79. Procedure in appeals from appellate decrees and orders

A decree must not be reversed or substantially varied, nor a case remanded on appeal, for misjoinder or procedural errors that do not affect the merits of the case or the court's jurisdiction.

A High Court judge must read an appealed case before hearing it and may summarily reject the appeal if the judge considers there is no sufficient ground to interfere with the decree.

Appeals from subordinate courts are to be heard by one judge of the High Court, unless the Chief Justice directs that two or more judges hear the appeal; that direction may be given before the hearing or at any time before judgment.

No second appeal lies from a decree passed in appeal by the High Court except on the grounds mentioned in section 72.

A second appeal from a decree passed in appeal by the High Court is not allowed in suits where the original subject-matter does not exceed ten thousand shillings unless special leave is first obtained from the court before whom the appeal would be heard.

A person allowed to take part in subordinate-court proceedings as a pauper may not appeal to the High Court or Court of Appeal except with the Court's leave or special leave.

Appeals from subordinate courts to the High Court must be filed within thirty days of the decree or order appealed against, excluding time the lower court certifies was needed to prepare and deliver a copy; the court may admit an appeal out of time if the appellant shows good and sufficient cause.

Section 81. Rules Committee Section 81(1)(a) one judge of the Court of Appeal; Section 81(1)(a)(i) one judge of the Court of Appeal; Section 81(1)(a)(ii) one judge of the High Court; Section 81(1)(a)(iii) a judge of the Environment and

The court may amend any defect or error in proceedings in a suit.

Women who, by their community customs and manners, ought not to be compelled to appear in public are exempt from personal appearance in court; but they are not exempt from arrest in execution of civil process.

Sections 40, 41 and 43 apply, so far as applicable, to all persons arrested under this Act.

Judicial officers are exempt from arrest under civil process while going to, presiding in, or returning from court.

Courts and judges may issue warrants or orders for arrest or attachment across jurisdictions; receiving courts/magistrates may endorse, execute or issue provisional warrants; courts that arrest must send detainees to the issuing court unless the detainee shows cause or provides security; provisional arrests require production of the original warrant within a reasonable time or the detainee/property must be discharged.

The High Court and Court of Appeal must use English; subordinate courts must use English or Swahili.

Courts may summon competent assessors to assist in certain cases; assessors shall attend and are entitled to fees.

Section title: Administration of oath on affidavit; lists authorities such as courts, magistrates, registrars, notaries public and commissioners of oaths.

The procedure provided in this Act for suits must be followed, as far as applicable, in all proceedings in any court of civil jurisdiction.

All orders or notices served on or given to any person under this Act shall be in writing.

When a decree is varied or reversed, the court of first instance must, on application by the party entitled to restitution, cause restitution to be made to place the parties as nearly as possible in the position they would have occupied but for the decree; the court may make consequential orders including refund of costs and payment of interest, damages, compensation and mesne profits.

Enforcement of liability of surety for the performance of any decree or any part of it.

Consent or agreement given with the court's express leave by the next friend or guardian for a person under disability has the same legal force and effect as if the person were not under disability.

The High Court may order immediate execution of a decree before costs are taxed, except for the parts relating to costs; those parts may be executed once the costs are ascertained by taxation.

The court may, in its discretion, extend a time period fixed or granted by the court for doing any act under this Act, even after the original period has expired.

If a court fee (or part of it) has not been paid, the court may, at any stage and in its discretion, allow the person who must pay it to pay the whole or part of the fee; after payment the document is treated as if the fee had been paid initially.

Section 97 renumbered as section 3A.

If a person fails to comply with an order to execute or endorse a document, the court may order that it be executed or endorsed by a person the court nominates, on such terms and conditions as it determines.

Clerical or arithmetical mistakes in judgments, decrees or orders, or errors from accidental slips or omissions, may be corrected by the court at any time, either on its own motion or on application by any party.