Order 5, rule 21. of Civil Procedure Rules : Service out of Kenya
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 otherwise 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.
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- Order 5, rule 22 - Service of other process out of the jurisdiction
(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...
- Order 5, rule 23 - Service under contract
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...
- Order 5, rule 24 - Probate and marriage suits
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.
- Order 5, rule 25 - Application to be supported by evidence
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...
- Order 5, rule 26 - Order to fix time for entering appearance
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...
- Order 5, rule 27 - Service where defendant resides out of Kenya
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...
- Order 5, rule 28 - Notice in lieu of summons
(1) Where the defendant is neither a Commonwealth citizen as aforesaid nor resides in any of the countries referred to in rule 27, notice of the summons and not the summons itself shall be served upon...
- Order 5, rule 29 - Service of notice of summons in a foreign country
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—...
- Order 5, rule 30 - Extension of procedure to any order or notice
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...
- Order 5, rule 31 - Application to Government
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.
- Order 5, rule 32 - Procedure
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...
- Order 5, rule 33 - General powers of the court
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.
- Order 5, rule 34 - Request for service from foreign country
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...
- Order 6, rule 1 - Time for appearance
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.
- Order 6, rule 2 - Mode of appearance
(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...
- Order 6, rule 3 - Defendant’s address for service
(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...
- Order 6, rule 4 - Irregular memorandum, address fictitious
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...
- Order 6, rule 5 - Defendants appearing by same advocate
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.
- Order 6, rule 6 - Delivery of documents to address for service
(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...
- Order 7, rule 1 - Defence
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...
- Order 7, rule 2 - Defence of tender
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...
- Order 7, rule 3 - Set-off and counterclaim
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...
- Order 7, rule 4 - Set-off or counterclaim in proceedings by Government
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...
- Order 7, rule 5 - Documents to accompany defence or counterclaim
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...
- Order 7, rule 6 - Persons in representative capacity
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...
- Order 7, rule 7 - Pleading a counterclaim
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.
- Order 7, rule 8 - Title of counterclaim
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...
- Order 7, rule 9 - Claim against person not party
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...
- Order 7, rule 10 - Appearance by added parties
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.
- Order 7, rule 11 - Reply to counterclaim
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...
- Order 7, rule 12 - Exclusion of counterclaim
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...
- Order 7, rule 13 - Discontinuance, stay or dismissal of suit
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.
- Order 7, rule 14 - Judgment for balance
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...
- Order 7, rule 15 - Defence or set-off founded on separate grounds
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.
- Order 7, rule 16 - New ground of defence
(1) Any ground of defence which has arisen after action brought, but before the defendant has delivered his defence and before the time limited for his doing so has expired, may be raised by the...
- Order 7, rule 17 - Subsequent pleadings
(1) A plaintiff shall be entitled to file a reply within fourteen days after the defence or the last of the defences has been served on to him, unless the time is extended.
(2) No pleading...
- Order 7, rule 18 - Filing subsequent pleadings
(1) Subject to rule 8 all pleadings (including amended pleadings) subsequent to the plaint shall be filed in duplicate.
(2) The court may return the duplicate to an advocate who shall deliver it to...
- Order 7, rule 19 - Register of documents
(1) A register of documents shall be kept at every registry in which the following particulars in respect of each such document shall be entered, namely—
(a) the number of the document;
(b) the...
- Order 7, rule 20 - Service of documents
Documents under this order shall be served in the manner prescribed under Order 5 of these Rules.
- Order 8, rule 1 - Amendment of pleading without leave
(1) A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed.
(2) Where an amended plaint is served on a defendant—
(a) if he has...
- Order 8, rule 2 - Application for disallowance of amendment
(1) Within fourteen days after the service on a party of a pleading amended under rule 1(1), that party may apply to the court to disallow the amendment.
(2) When the court hearing an application...
- Order 8, rule 3 - Amendment of pleading with leave
(1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise...
- Order 8, rule 4 - Amendment of originating process
Rule 3 shall have effect in relation to an originating summons, a petition and an originating notice of motion as it has effect in relation to a plaint.
- Order 8, rule 5 - General power to amend
(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the...
- Order 8, rule 6 - Failure to amend after order
Where the court has made an order giving any party leave to amend, unless that party amends within the period specified or, if no period is specified, within fourteen days, the order shall cease to...
- Order 8, rule 7 - Mode of amendment
(1) Every pleading and other documents amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made,...
- Order 8, rule 8 - Procedure
The court may hear and determine an oral application made under this Order.
- Order 9, rule 1 - Applications, appearances or acts in person, by recognized agent or by advocate
Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the...
- Order 9, rule 2 - Recognized agents
The recognized agents of parties by whom such appearances, applications and acts may be made or done are—
(a) subject to approval by the court in any particular suit persons holding
powers of...
- Order 9, rule 3 - Service of process on recognized agent
(1) Processes served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the court otherwise directs.
(2) The provisions for the...