Civil Procedure Code
Chapter 33
An Act to provide for the procedure and related matters in civil proceedings.
Part IA – Preliminary provisions
1. Short title
This Act may be cited as the Civil Procedure Code.
2. Application
1Subject to the express provisions of any written law, the provisions of this Code shall apply to all proceedings in the High Court of the United Republic, courts of resident magistrates and district courts.¹Note: The rules of primary courts are set out in the Magistrates Courts (Civil Procedure in Primary Courts) Rules-Cap. 11 S. L.
3. Interpretation
In this Code, unless the context otherwise requires—"advocate" has the meaning ascribed to it in the Advocates Act;"court", except in the expression "foreign court", means the High Court of the United Republic, a court of a resident magistrate or a district court presided over by a civil magistrate and references to a district court are references to a district court presided over by a civil magistrate;"decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary of final and it shall be deemed to include the rejection of a plaint and the determination of any question within section 38 or section 89, but shall not include—(a)an adjudication from which an appeal lies as an appeal from an order; or(b)any order of dismissal for default."decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made;"foreign court" means a court situated beyond the limits of Tanzania which has no authority in Tanzania;"foreign judgment" means the judgment of a foreign court;"High Court" means the High Court of the United Republic;"judgment" means the statement given by a judge or a magistrate of the grounds for a decree or order;"judgment debtor" means any person against whom a decree has been passed or an order capable of execution has been made;"legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sue or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued;"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might, with ordinary diligence, have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;"movable property" includes growing crops;"order" means the formal expression of any decision of a civil court which is not a decree;"rules" means the rules contained in the First and Second Schedules or made under section 29, 45 or 82;"share in a corporation" shall be deemed to include stock, debenture stock, debentures, or bonds; and"signed" save in the case of a judgment or decree, includes stamped.
3A. Overriding objective of Act
(1)The overriding objective of this Act shall be to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes governed by this Act.(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).3B. Duty to uphold objective
(1)For the purpose of furthering the overriding objective specified in section 3A, the Court shall handle all matters presented before it with a view to attaining the following—
(a)just determination of the proceedings;(b)efficient use of the available judicial and administrative resources including the use of suitable technology; and(c)timely disposal of the proceedings at a cost affordable by the respective parties.(2)A party to civil proceedings or an advocate for such a party shall have a duty to assist the Court to further overriding the objective of this Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.(3)The Chief Justice may make rules for better carrying out the provisions of sections 3A and 3B.4. Subordination of courts
For the purposes of this Code, every court of a resident magistrate and every district court is subordinate to the High Court, and every district court is subordinate to the court of the resident magistrate within the area of whose jurisdiction it is situate.
5. Saving of procedure prescribed in other laws
In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special form of procedure prescribed by or under any other law for the time being in force.
6. Pecuniary jurisdiction
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.
Part I – Jurisdictions of courts and Res judicata
7. Jurisdiction of courts
(1)Subject to this Act the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.(2)No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and a court may make binding declarations of right whether or not any consequential relief is or could be claimed.8. Stay of suit
No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed.
9. Res judicata
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.
10. Bar to further suit
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 such cause of action in any court to which this Code applies.
11. When foreign judgment not conclusive
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—
(a)where it has not been pronounced by a court of competent jurisdiction;(b)where it has not been given on the merits of the case;(c)where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Tanzania in cases in which such law is applicable;(d)where the proceedings in which the judgment was obtained are opposed to natural justice;(e)where it has been obtained by fraud;(f)where it sustains a claim founded on a breach of any law in force in Tanzania.
12. Presumption as to foreign judgment
The court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.
Place of suing
13. Courts in which suits may be instituted
Every suit shall be instituted in the court of the lowest grade competent to try it and, for the purposes of this section, a court of a resident magistrate and a district court shall be deemed to be courts of the same grade:Provided that, the provisions of this section shall not be construed to oust the general jurisdiction of the High Court.
14. Suits to be instituted where subject matter situate
Subject to the pecuniary or other limitations prescribed by any law, suits—
(a)for the recovery of immovable property with or without rent or profits;(b)for the partition of immovable property;(c)for foreclosure, sale or redemption in the case of a mortgage of or a charge upon immovable property;(d)for the determination of any other right to, or interest in, immovable property;(e)for compensation for a wrong to immovable property; or(f)for the recovery of movable property actually under distrait or attachment,shall be instituted in the court within the local limits of whose jurisdiction the property is situate:Provided that, a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business or personally works for gain.
15. Suits for immovable property situate within jurisdiction of different courts
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 if, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such court.
16. Place of institution of suit where local limits of jurisdiction of courts are uncertain
(1)Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more courts any immovable property is situate, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction:Provided that; the suit is one with respect to which the court is competent as regards the nature and value of the suit to exercise jurisdiction.(2)Where a statement has not been recorded under subsection (1), and an objection is taken before an appellate or revisional court that a decree or order in a suit relating to such property was made by a court not having jurisdiction where the property is situate, the appellate or revisional court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice.17. Suits of compensation for wrongs to person or movables
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 the said courts.
18. Other suits to be instituted where defendant resides or cause of action arises
Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a)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;(b)any 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, provided that in such case either the leave of the court is given or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or(c)the cause of action, wholly or part, arises.
19. Objections to jurisdiction
No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
20. Power to transfer suits which may be instituted in more than one court
Where a suit may be instituted in any one of two or more district courts within the area of the jurisdiction of a court of a resident magistrate, and is instituted in one of such courts, not being the court of the resident magistrate—
(a)if before any evidence has been taken all the parties to the suit consent to the suit being transferred to the court of such resident magistrate, the court in which the suit has been instituted shall record the fact of such consent and shall transmit the record to such resident magistrate who shall in due course try the suit;(b)on the application to such resident magistrate of a party to the suit and after notice to the parties and after consideration of objections (if any) of any party such resident magistrate may, at any stage before any evidence has been taken in the suit, transfer the suit for trial by himself; or(c)of his own motion, such resident magistrate may, at any stage before evidence has been taken in the suit, transfer the suit for trial by himself:Provided that, the exercise of the powers conferred by paragraph (b) or (c) hereof shall be subject to such limitations or conditions, if any, as the Chief Justice shall impose by rules of court and provided further that this section shall not affect the powers of the High Court under section 21.
21. General power of transfer and withdrawal
(1)On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage—
(a)transfer any suit 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;(b)withdraw any suit or other proceeding pending in any court subordinate to it, and—
(i)try or dispose of the same;(ii)transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or(iii)retransfer the same for trial or disposal to the court from which it was withdrawn.(2)Where any suit or proceeding has been transferred or withdrawn under subsection (1), the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.(3)The powers of transfer and withdrawal of suits conferred by this section and section 20 shall be in addition to and not in substitution for the powers contained in Part V of the Magistrates' Courts Act.Institution of suits
22. Institution of suits
Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
Summons and discovery
23. Summons to defendant
Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed.
24. Service of summons where defendant resides outside jurisdiction of court
(1)A summons may be sent for service to another court in Tanzania within the local limits of whose jurisdiction the defendant may be believed to be residing.(2)The court to which such summons is sent shall, upon receipt thereof, proceed as if it has been issued by such court and shall then return the summons to the court of issue together with the record (if any) of its proceedings with regard thereto.25. Power to order discovery and the like
Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on application of any party—
(a)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;(b)issue summonses to person whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; or(c)order any fact to be proved by affidavit.
26. Summons to witness
The provisions of sections 23 and 24 shall apply to summonses to give evidence or to produce documents or other material objects.
27. Penalty for default
The court may compel the attendance of any person to whom a summons has been issued under section 25 and for that purpose may—
(a)issue a warrant for his arrest;(b)attach and sell his property;(c)impose a fine upon him not exceeding one thousand shillings; or(d)order him to furnish security for his appearance and in default commit him as a civil prisoner.
28. Delivery of decision
After the case has been heard, the court shall deliver a decision in open court as soon as possible, but in any case it shall not exceed ninety days of which due notice shall be given to the parties or their advocates, if any.
Interest
29. Interest on judgment debts
The Chief Justice may make rules prescribing the rate of interest which shall be carried by judgment debts and, without prejudice to the power of the court to order interest to be paid upon to date of judgment at such rates as it may deem reasonable, every judgment debt shall carry interest at the rate prescribed from the date of the delivery of the judgment until the same shall be satisfied.
30. Costs
(1)Subject to such conditions and limitations as may be prescribed and to the provisions of any law from the time being in force, the costs of, and incidental to, all suits shall be in the discretion of the court and the court shall have full power to determine by whom or 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 has no jurisdiction to try the suit shall be no bar to the exercise of such powers.(2)Where the court directs that any costs shall not follow the event, the court shall state its reasons in writing.(3)The court may give interest on costs at any rate not exceeding seven percent per annum and such interest shall be added to the costs and shall be recoverable as such.Part II – Execution
General
31. Application to orders
The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.
32. Definition of "court which passed decree"
The expression "court which passed a decree" or words to that effect shall, in relation to the execution of decrees, unless there is any thing repugnant in the subject or context, be deemed to include—
(a)where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance; and(b)where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
Court by which decrees may be executed
33. Courts by which decrees may be executed
A decree may be executed either by the court which passed it or by the court to which it is sent for execution.
34. Transfer of decree
(1)The court which passed a decree may, on the application of the decree-holder, send it for execution to another court—
(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 such other court;(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;(c)if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed it; or(d)if the court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other court.(2)The court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction.35. Result of execution proceedings to be certified
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.
36. Powers of court in executing transferred decree
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; and 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.
37. Precepts
(1)Upon the application of the decree-holder the court which passed the decree may, whenever it thinks fit, issue a precept to any other court which would be competent to execute such decree to attach any property belonging to the judgment debtor and specified in the precept.(2)The court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:Provided that, no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the court which passed the decree or unless, before the determination of such attachment, the decree has been transferred to the court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.Questions to be determined by Court executing decree
38. Questions to be determined by Court executing decree
(1)All questions arising between the parties to the suit in which the decree was passed, or their representative, 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.(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.(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.Limit of time for execution
39. Execution barred in certain cases
(1)Where an application to execute a decree, not being a decree granting an injunction, has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from—
(a)the date of the decree sought to be executed; or(b)where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.(2)Nothing in this section shall be deemed—
(a)to preclude the court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years where the judgment debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or(b)to limit or otherwise affect the operation of article 183 of the First Schedule to the Indian Limitation Act, as applied to Tanzania.Transferee and legal representatives
40. Transferee
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.
41. Legal representative
(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 the deceased.(2)Where the decree is executed against such legal representative, 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.Procedure in execution
42. Powers of court to enforce execution
Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree holder, order execution of the decree—
(a)by delivery of any property specifically decreed;(b)by attachment and sale or by sale without attachment of any property;(c)by arrest and detention in prison;(d)by appointing a receiver; or(e)in such other manner as the nature of the relief granted may require.
43. Enforcement of decree against legal representative
(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.(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.Arrest and detention
44. Arrest and detention
(1)A judgment debtor may be arrested in execution of a decree at any hour and on any day and shall, as soon as practicable, be brought before the court, and the court may order his detention:Provided that, for the purposes of making an arrest under this section—
(a)no dwelling-house shall be entered after sunset and before sunrise;(b)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 authorised 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; or(c)if the room is in the actual occupancy of a woman who is not the judgment debtor and who, according to her religion or local custom, does not appear in public, the officer authorised 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:Provided further that, 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 decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.(2)Where a judgment debtor is arrested in execution of a decree for the payment of money and brought before the court, the court shall inform him that he may apply to be declared an insolvent, and that he will be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.(3)Where a judgment debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the court, that he will within one month so apply and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the court shall release him from arrest and, if he fails so to apply and to appear, the court may either direct the security to be realised or commit him as a civil prisoner in execution of the decree.45. Subsistence allowance
The Chief Justice may make rules prescribing scales of monthly allowances payable for the subsistence of judgment-debtors.
46. Detention and release
(1)Every person detained as a civil prisoner in execution of a decree shall be so detained—
(a)where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period of six months; and(b)in any other case, for a period of six weeks:Provided that, he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be—
(i)on the amount mentioned in the warrant for his detention being paid to the officer in charge of the prison;(ii)on the decree against him being otherwise fully satisfied;(iii)on the request of the person on whose application he has been so detained; or(iv)on the omission by the person on whose application he has been so detained to pay subsistence allowance:
Provided further that, he shall not be released from such detention under clause (ii) or clause (iii) without the order of the court.
(2)A judgment debtor released from detention under this section shall not, merely by reason of his release, be discharged from his debt.(3)Where a judgment debtor has been released from detention under this section before the expiration of the period of six months or six weeks, as the case may be, for which he was ordered to be detained, and the decree against him has not been fully satisfied he shall, if he was released on the request of the person on whose application he was detained but not otherwise, be liable to be re-arrested under the decree in execution of which he was detained.(4)A judgment debtor who has been re-arrested under the provisions of subsection (3) of this section shall be detained as a civil prisoner for the remainder of the period of six months or six weeks, as the case may be, for which he would have been detained under the provisions of subsection (1) of this section if he had not been released from such detention under the proviso to that subsection:Provided that, he shall be released from such detention before the expiration of the remainder of the said period of six months or six weeks, as the case may be, in any of the circumstances specified in the first proviso to subsection (1) of this section.47. Release on grounds of illness
(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.(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 as a civil prisoner.(3)Where a judgment debtor has been committed as a civil prisoner, he may be released—
(a)by the officer in charge of the prison in which he is confined, on the ground of the existence of any infectious or contagious disease; or(b)by the committing court, or any court to which that court is subordinate, on the ground of his suffering from any serious illness.(4)A judgment debtor released under this section may be re-arrested but the period of his detention as a civil prisoner shall not in the aggregate exceed that prescribed by section 46.Attachment
48. Property liable to attachment and sale in execution of decree
(1)The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, banknotes, cheque, bills of exchange, promissory notes, Government securities, bonds or other securities for money debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment debtor or by another person in trust for him or on his behalf:Provided that, the following shall not be liable to such attachment or sale, namely—
(a)the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;(b)tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such;(c)houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him;(d)any land used for agricultural purposes by a village, an Ujamaa Village, a co-operative society, or an individual whose livelihood is wholly dependent upon the use of such land;(e)any residential house or building, or part of a house or building occupied by the judgment debtor, his wife and dependant children for residential purposes;(g)a mere right to sue for damages;(h)the salary of an employee to the extent of—
(i)the whole of the salary where it does not exceed one hundred and fifty shillings monthly;(ii)one hundred and fifty shillings monthly where the salary exceeds one hundred and fifty shillings and does not exceed two hundred and fifty shillings and does not exceed two hundred and twenty-five shillings monthly; or(iii)two-thirds of the salary in any other case;(i)the expense allowances of any employees;(j)an expectancy of succession by survivorship or other merely contingent or possible right or interest;(k)a right to future maintenance; or(l)any other property declared by any written law not to be liable to attachment.
(2)Subject to the provisions of any written law, nothing in this section shall be deemed to exempt houses and other buildings (which the materials and the sites thereof and the lands immediately appurtenant thereof and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.(3)For the purposes of this section—"expense allowance" means any sum paid to an employee by an employer which is a bona fide payment to meet an expense incurred or to be incurred by the employee wholly and exclusively in or for the purposes of the performance of the duties of his office or employment or in discharging functions authorised by the employer; and"salary" includes any sum of money granted to any employee y an employer other than an expense allowance.49. Seizure of property in dwelling house
(1)No person executing any process under this Code directing or authorising seizure of movable property shall enter any dwelling-house after sunset and before sunrise.(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 any such process had 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.(3)Where a room in a dwelling-house is in the actual occupancy of a woman who, according to her religion or local custom, does not appear in public, the person executing the process shall give notice to such 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 such room for the purpose of seizing the property, using at the same time every precaution consistent with these provisions, to prevent its clandestine removal.50. Property attached in execution of decrees of several courts
(1)Where property not in the custody of any court is under attachment in execution of decrees of more courts than one, the court which shall receive or realise such 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 such courts, the court under whose decree the property was first attached.(2)Nothing in this section shall be deemed to invalidate any proceeding taken by a court executing one of such decrees.51. Private alienation of property after attachment to be void
Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.
Sale
52. Purchaser's title
Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
53. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff
(1)No suit shall be maintained against any person claiming title under a purchase certified by the court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims.(2)Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third persons against the real owner.Distribution of assets
54. Proceeds of execution sale to be rateably distributed among decree-holders
(1)Where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the court for the execution of decrees for the payment of money passed against the same judgment debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons:Provided that—
(a)where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale;(b)where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the court may with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;(c)where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied—
(i)in defraying the expenses of the sale;(ii)in discharging the amount due under the decree;(iii)in discharging the interest and principal moneys due on subsequent incumbrance (if any); and,(iv)rateably among the holders of decrees for the payment of money against the judgment debtor who have, prior to the sale of the property, applied to the court which passed the decree ordering such sale for execution of such decrees and have not obtained satisfaction thereof.(2)Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.(3)Nothing in this section affects any right of the Government.Resistance to execution
55. Resistance to execution
Where the court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the court may, at the instance of the decree-holder or purchaser, order the judgment debtor or such other person to be detained as a civil prisoner for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.
Part III – Incidental proceedings
Commissions
56. Power of court to issue commissions
Subject to such conditions and limitations as may be prescribed, the court may issue a commission—
(a)to examine any person;(b)to make a local investigation;(c)to examine or adjust accounts; or
57. Commission to another court
(1)A commission for the examination of any person may be issued to any court (other than the High Court) in Tanzania having jurisdiction in the place in which the person to be examined resides.(2)Every court receiving a commission for the examination of any person under subsection (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.58. Letter of request
In lieu of issuing a commission, the court may issue a letter of request to examine a witness residing at any place outside Tanzania.
59. Commissions issued by foreign courts
The provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by foreign courts for the examination of persons residing in Tanzania
Part IV – Suits in particular cases
Suits against public officers
60. Exemption from arrest and personal appearance of public officers
In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity—
(a)the defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree; and(b)where the court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.
Suits by aliens and foreign states
61. When aliens may sue
(1)Alien enemies residing in Tanzania with the permission of the Government and alien friends, may sue in the courts of Tanzania.(2)No alien enemy residing in Tanzania without such permission, or residing in a foreign country, shall sue in any of such courts.62. When foreign State may sue
(1)A foreign State which has been recognised by the Government of Tanzania may sue in any court of Tanzania if the object of the suit is to enforce a private right vested in the head of such State or in any officer of such State in his public capacity.(2)Every court shall take judicial notice of the fact that a foreign State has or has not been recognised by the Government of Tanzania.Interpleader
63. Where interpleader suit may be instituted
Where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:Provided that, where any suit is pending in which the rights of parties can properly be decided, no such suit of interpleader shall be instituted.
Part V – Special proceedings
Arbitration
64. Arbitration
Save in so far as is otherwise provided by the Arbitration Act, or by any other law for the time being in force, all references to arbitration, whether by an order in a suit or otherwise, and all proceedings thereunder shall be governed by the provisions contained in the Second Schedule.
Special case
65. Power to state case for opinion of court
Where any person agrees in writing to state a case for the opinion of the court, then the court shall try and determine the same in the manner prescribed.
Suits relating to public matters
66. Public nuisance
(1)In the case of a public nuisance, the Attorney General or two or more persons having obtained the consent in writing of the Attorney-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.(2)Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.67. Public charities
In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the Attorney-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Attorney-General, may institute a suit, whether contentious or not, in the High Court to obtain a decree—
(b)appointing a new trustee;(c)vesting any property in a trustee;(d)directing accounts and inquiries;(e)declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;(f)authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;(h)granting such further or other relief as the nature of the case may require
Part VI – Supplemental proceedings
68. Supplemental proceedings
In order to prevent the ends of justice from being defeated the court may, subject to any rules in that behalf—
(a)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 as a civil prisoner;(b)direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the court or order the attachment of any property;(c)grant a temporary injunction and in case of disobedience commit the person guilty thereof as a civil prisoner and order that his property be attached and sold;(d)appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; or(e)make such other interlocutory orders as may appear to the court to be just and convenient.
69. Compensation for obtaining arrest, attachment or injunction on insufficient grounds
(1)Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under section 68—
(a)it appears to the court that such attachment or injunction was applied for on insufficient grounds; or(b)the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting the same,the defendant may apply to the court and the court may, upon such application, award against the plaintiff by its order such amount, not exceeding two thousand shillings, as it deems a reasonable compensation to the defendant for the expense or injury caused to him.
(2)An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.Part VII – Appeals
Appeals from decrees
70. Appeal from original decree
(1)Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed by a court of a resident magistrate or a district court exercising original jurisdiction.(2)An appeal may lie from an original decree passed ex parte.(3)No appeal shall lie from a decree passed by the court with the consent of the parties.71. Appeals from final decree where no appeal from preliminary decree
Where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
72. Decision where appeal heard by two or more judges
(1)Where an appeal is heard by a Bench of two or more judges, the appeal shall be decided in accordance with the opinion of such judges or of the majority (if any) of such judges.(2)Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:Provided that, where the bench hearing the appeal is composed of two judges and the judges composing the bench differ in opinion on a point of law, they may state the point of law upon which they differ, and the appeal shall then be heard upon that point only by one or more of the other judges, and such point shall be decided according to the opinion of the majority (if any) of the judges who have heard the appeal including those who first heard it.73. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction
No decree shall be reversed or substantially varied, nor shall any case be remanded, on appeal, on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the court.
Appeal from orders
74. Orders from which appeals lie
(1)An appeal shall lie to the High Court from the following orders of the District Courts, Resident Magistrate’s Courts and any other tribunal, the decisions of which are appealable to the High Court, and save as otherwise expressly provided in this code or by any law for the time being in force from no other order—
(a)an order superseding an arbitration where the award has not been completed within the period allowed by the court;(b)an order on an award stated in the form of a special case;(c)an order modifying or correcting an award;(d)an order filing or refusing to file an agreement to refer to arbitration;(e)an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;(f)an order filing or refusing to file an award in an arbitration without the intervention of the court;(h)an order under any of the provisions of this Code imposing a fine or directing the arrest or detention as a civil prisoner of any person except where such arrest or detention is in execution of a decree; or(i)any order made under rules from which an appeal is expressly allowed by rules.(2)Notwithstanding the provisions of subsection (1), and subject to subsection (3), no appeal shall lie against or be made in respect of any preliminary or interlocutory decision or order of the District Court, Resident Magistrate’s Court or any other tribunal, unless such decision or order has effect of finally determining the suit.(3)Subsection (2) shall not apply in relation to a decision or order given in relation to the exercise by the mortgagee of the powers to see or enter in possession of the mortgaged land or in an action brought by a mortgagor to suspend or to stop sale of a mortgaged property.75. Other orders
Save as otherwise expressly provided, no appeal shall lie from any order made by a court; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.
General provisions relating to appeals
76. Powers of High Court on appeal
(1)Subject to such conditions and limitations as may be prescribed, the High Court in the exercise of its appellate jurisdiction shall have power to—
(a)determine a case finally;(b)remit a case for re-trial;(c)frame issues and refer them for trial; or(d)take additional evidence or to require such evidence to be taken.(2)Subject to any conditions and limitations prescribed under subsection (1), the High Court shall have the same powers and shall perform, as nearly as may be, the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein.Part VIII – Reference, review and revision
77. Reference to High Court
Subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court and the High Court may make such order thereon as it thinks fit.
78. Review
(1)Subject to any conditions and limitations prescribed under section 77, any person considering himself aggrieved—
(a)by decree or order from which an appeal is allowed by this Code but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Code,may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
(2)Notwithstanding the provisions of subsection (1) and subject to subsection (3), no application for review shall lie against or be made in respect of any preliminary or interlocutory decision or order of the Court unless such decision or order has the effect of finally determining the suit.(3)Subsection (2) shall not apply in relation to an application to review a decision or order given in relation to the exercise by the mortgagee of the powers to sell or enter in possession of the mortgaged land or in an action brought by a mortgagor to suspend or to stop sale of a mortgaged property.79. Revision
(1)The High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, and if such subordinate court appears—
(a)to have exercised jurisdiction not vested in it by law;(b)to have failed to exercise jurisdiction so vested; or(c)to have acted in the exercise of its jurisdiction illegally or with material irregularity,the High Court may make such order in the case as it thinks fit.
(2)Notwithstanding the provisions of subsection (1), no application for revision shall lie or be made in respect of any preliminary or interlocutory decision or order of the Court unless such decision or order has the effect of finally determining the suit.(3)2Nothing in this section shall be construed as limiting the High Court's power to exercise revisional jurisdiction under the Magistrates' Courts Act.²Note: Subsection (3) was previously subsection (3) in terms of Act No 49 of 1966, The errors in the Amendment Act No. 25 of 2002 are thus rectified by retaining the referred subsection which was not deleted hence maintained as subsection (3) appearing herein.Part IX – Rules
80. Application of rules in First and Second Schedules
Subject to this Act, the Rules set out in the First and Second Schedules shall apply to the matters provided for in this Code.
81. Powers of Chief Justice to make rules
The Chief Justice may, with the consent of the Minister responsible for legal affairs, amend the First and Second Schedules.
82. Matters for which rules may provide
(1)Rules made in accordance with the provisions of this Part may provide for any matter relating to the procedure of civil courts.(2)In particular, and without prejudice to the generality of the powers conferred by subsection (1), and in addition to the powers conferred by sections 29 and 45, such rules may provide for all or any of the following matters, namely—
(a)the service of summonses, notices and other process by post or in any other manner either generally or in any specified areas, and the proof of such service;(b)the maintenance and custody, while under attachment, of livestock and other movable property, the fees payable for such maintenance and custody, the sale of such livestock and property and the proceeds of such sale;(c)procedure in suits by way of counterclaim, and the valuation of such suits for the purposes of jurisdiction;(d)procedure in garnishee and charging orders either in addition to, or in substitution for, the attachment and sale of debts;(e)summary procedure—
(i)in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a contract, express or implied, or on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only; or on a trust; or(ii)in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant;(f)procedure by way of originating summons;(g)consolidation of suits, appeals and other proceedings;(h)delegation to any Registrar, Deputy Registrar or District Registrar or other official of the court of any judicial, quasi-judicial, and non-judicial duties; and(i)all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of courts.Part X – Miscellaneous provisions
83. Courts to respect privacy of women enjoined by religion or custom
(1)Women who, according to their religion or local custom, do not appear in public shall, when appearing or required to appear in court pursuant to any process issued by the court, be accorded such facilities for maintaining their privacy as may be reasonable and practicable.(2)Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process.84. Arrest other than in execution of decree
The provisions of sections 44, 45 and 47 shall apply, so far as may be, to all persons arrested under this Code.
85. Exemption from arrest under civil process
(1)No judge, magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from, his court.(2)Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their advocates and recognised agents, and their witnesses, acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.(3)Nothing in subsection (2) shall enable a judgment debtor to claim exemption from arrest under an order for immediate execution or where such judgment debtor attends to show cause why he should not be committed to prison in execution of a decree.86. Procedure where person to be arrested or property to be attached is outside jurisdiction
(1)Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code, not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the court to which the application is made the court may, in its discretion, issue a warrant of arrest or make an order of attachment and send to the court within the local limits of whose jurisdiction such person resides or such property is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment or a notice that security for the payment of such amount has been given.(2)The court receiving such copy and amount or notice shall cause the arrest or attachment to be made by its own officers and shall inform the court which issued or made such warrant or order of the arrest or attachment.(3)The court making an arrest under this section shall send the person arrested to the court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former court why he should not be sent to the latter court, or unless he furnishes sufficient security for his appearance before the latter court or for satisfying any decree that may be passed against him by that court, in either of which cases the court making the arrest shall release him.87. Assessors in causes of salvage, etc.
(1)In any admiralty cause of salvage, towage or collision, the High Court may, if it thinks fit, and shall upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed, two competent assessors, and such assessors shall attend and assist accordingly.(2)Every assessor shall receive such fees for his attendance to be paid by such of the parties as the High Court may direct or as may be prescribed.88. Orders and notices to be in writing
All orders and notices served on, or given to, any person under the provisions of this Code shall be in writing.
89. Application for restitution
(1)Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.(2)No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1).90. Enforcement of liability of surety
Where any person has become liable as surety—
(a)for the performance of any decree or any part thereof;(b)for the restitution of any property taken in execution of a decree; or(c)for the payment of any money or for the fulfilment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon,
the decree or order may be executed against him to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of section 38, provided that such notices as the court in each case thinks sufficient has been given to the surety.
91. Proceedings by or against representatives
Save as otherwise provided by this Code or by any written law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.
92. Consent or agreement by persons under disability
In all suits to which any person under disability is a party, any consent or agreement as to any proceeding shall, if given or made with the express leave of the court by the next friend or guardian for the suit, have the same force and effect as if such person were under no disability and had given such consent or made such agreement.
93. Enlargement of time
Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
94. Transfer of business
Save as otherwise provided, where the business of any court is transferred to any other court, the court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the court from which the business was so transferred.
95. Saving of inherent powers of court
Nothing in this Code shall be deemed to 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.
96. Amendments of judgments, decrees or orders
Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the court either of its own motion or on the application of any of the parties.
97. General power to amend
The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
Part XI – Repeal and transitional provisions
101. Forms
(1)Subject to any prescribed forms, the Chief Justice may approve for use forms for applications, proceedings, processes, notices, orders, decrees, precepts, memoranda, bonds, commissions, letters of request or other documents required to be prepared, executed, filed, issued or otherwise used in connection with proceedings under this Code.(2)Where any form is prescribed or approved for use by the Chief Justice it shall be followed in all such cases to which it applies with such variations as the circumstances of the case require.(3)All forms heretofore in use in connection with proceedings under the Indian Code of Civil Procedure, 1908, as in force in Tanzania shall, where applicable and subject to such variations as may be necessary, be deemed to be forms approved by the Chief Justice for use in connection with proceedings under this Code until replaced by forms prescribed or approved by the Chief Justice under subsection (1).
First Schedule (Section 80)
The Civil Procedure Rules
1A. Citation
These Rules may be cited as the Civil Procedure Rules.
Order I Parties to suits
(a) Joinder of parties
1. Who may be joined as plaintiffs
All persons may join 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 trials
Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may 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
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
Judgment may be given—
(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; or(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
It shall not be necessary that every defendant shall be interested as to all the reliefs claimed in any suit against him.
6. Joinder of parties liable on same contract
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 is to be sought
Where the plaintiff is in doubt as to the person 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
(1)Where there are numerous person having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested; but the court shall in such case give, at the plaintiff’s expense, notice of the institution 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.(2)Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the court to be made a party to such suit.9. Misjoinder and non-joinder of parties
A suit shall not 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 right and interests of the parties actually before it.
10. Suit in name of wrong plaintiff
(1)Where a suit has been instituted in the name of the wrong person 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 so instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just.(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 the questions involved in the suit, be added.(3)A person shall not be added as a plaintiff using without a next friend or as the next friend of a plaintiff under any disability without his consent.(4)Where a defendant is added 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 defendant.(5)Subject to the provisions of section 22 of the Law of Limitation Act, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
11. Conduct of suit
The court may give the conduct of the suit to such person as it deems proper.
12. Appearance of one of several plaintiffs or defendants for others
(1)Where there are more plaintiffs than one, any one or more of them may be authorised 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 authorised 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 court.13. Objections as to non-joinder or misjoinder
All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all case where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen; and any such objection not so taken shall be deemed to have been waived.
(b) Third party procedure
14. Leave to file third party notice
(1)Where in any suit a defendant claims against any person not a party to the suit (hereinafter referred to as "the third party")—
(a)any contribution or indemnity; or(b)any relief or remedy relating to or connected with the subject matter of the suit and substantially the same as a relief or remedy claimed by the plaintiff,the defendant may apply to the court for leave to present to the court a third party notice.(2)An application under sub-rule (1) shall, unless the court otherwise directs, be made ex parte and be supported by an affidavit stating—
(a)the nature of the claim made by the plaintiff in the suit;(b)the stage which proceedings in the suit have reached;(c)the nature of the claim made by the applicant against the third party and its relation to the plaintiff's claim against the applicant; and(d)the name and address of the third party.(3)Where, upon an application made under sub-rule (1), the court is satisfied that the defendant's claim against the third party is in respect of a matter referred to in paragraph (a) or (b) of that sub-rule and that, having regard to all the circumstances of the case, it is reasonable and proper to grant leave to the defendant to present a third party notice, the court shall, upon such terms and conditions as it may think just, make an order granting the defendant leave to present a third party notice.(4)An order granting leave to present a third party notice shall contain directions as to the period within which such notice may be presented and as to such other matters as the court may think just.15. Contents of notice
Every third party notice shall state—
(a)the nature of the plaintiff's case against the defendant;(b)the nature of the defendant's claim against the third party;(c)the reliefs claimed by the defendant against the third party;(d)the period within which the third party may present his defence; and the consequences of the failure by the third party to present his defence within such a period.
16. Service of notice on third party and other parties to the suit
(1)The court shall cause to be served a copy of a third party notice presented to it on the third party in accordance with rules relating to service of summons.(2)A copy of the third party notice shall also be served on each of the other parties to the suit in accordance with the provisions of rule 2 of Order VI as if such notice were a pleading other than a plaint.17. Defence by third party
Where a third party notice has been served on the third party, the third party shall, if he wishes to dispute the plaintiff's claim in the suit against the defendant presenting the third party notice or his own liability to the defendant, within twenty-one days of the service of the third party notice upon him or such longer period as the court may have directed or as the court may, on the application of the third party, direct, present to the court a written statement of his defence.
18. Directions
(1)Where a third party has presented a written statement of defence the court shall on the application of the defendant presenting the third party notice or on the application of the third party or, where the third party has disputed the plaintiff's claim against the defendant, on the application of the plaintiff, or on its own motion, fix a date for the giving of directions and may on such date, if satisfied that there is a proper question to be tried as to the liability of the third party in respect of the claim made against him by the defendant, order the question of such liability to be tried in such manner, at or after the trial of the suit, as the court may direct or, if the court is not so satisfied, pass such decree or make such order as the nature of the case may require.(2)The court shall cause a notice of the date of giving directions to be served on the defendant presenting the third party notice and on the third party and on such other parties to the suit as the court may direct, in accordance with the rules relating to service of summons.19. Judgment against third party in default
(1)Where a third party makes default in presenting his written statement of defence within the time allowed under rule 17 or having presented a written statement of defence, makes default in appearing on the date fixed for the giving of directions—
(a)if the defendant presenting the third party notice suffers judgment by default, such defendant may at any time after satisfaction of that judgment or, with leave of the court, before satisfaction thereof, apply ex parte for judgment against the third party in respect of any contribution, indemnity or relief claimed in the notice and the court may, on such application and on ex parte proof by the defendant of his claim against the third party, enter such judgment against the third party as the nature of the suit may require;(b)if the defendant presenting the third party notice suffers judgment after trial of the suit against him, the court may at or after the trial of the suit enter such judgment for the defendant against the third party as the nature of the suit and the claim made in the third party notice may require:Provided that execution of any decree passed consequent upon judgment being entered in accordance with this paragraph shall not be issued without leave of the court until after satisfaction by such defendant of the decree passed against him; or(c)Where judgment by consent is entered against the defendant in favour of the plaintiff the court may, on application of the defendant and on ex parte proof by him of his claim against the third party, enter such judgment in favour of the defendant against the third party as the nature of the suit may require:Provided that, execution of any decree passed against the third party consequent upon judgment being entered against him in accordance with this paragraph shall not be issued without leave of the court, until after satisfaction by such defendant of the decree passed against him; or(d)Where the third party is the Attorney-General, the court shall, on the application for directions of the defendant presenting the third party notice, fix a date of which notice shall be given to the Attorney-General and on which the court may make any order, upon such terms as it may direct as to costs or otherwise, which it could make under the provisions of rule 18 or may enter such judgment against the third party as the nature of the suit may require.(2)The court may at any time set aside or vary a judgment entered against a third party pursuant to the provisions of sub-rule (1) on such terms as it may think just.20. Costs
The court may decide all questions of costs between a third party and other parties to the suit, and may make such orders as to costs as it may think just.
21. Provisions of the Code and Law of Limitation to apply to third party proceedings
Subject to the provisions of rules 14, 15, 16, 17, 18 and 19, the provisions of this Code and the provisions of the Law of Limitation Act in relation to a third party notice and to proceedings begun thereby shall apply as if—
(a)the third party notice were a summons to defend;(b)the defendant presenting the notice were a plaintiff and the third party were a defendant;(c)the date fixed for the giving of directions were a date fixed for the hearing of a suit; and(d)judgment entered against the third party in accordance with the provisions of rule 19 were an ex parte judgment entered against a defendant in a suit.
22. A third party may present a third party notice
A third party served with a third party notice shall have the same right to present a third party notice against some other party not a party to the suit as if he were a defendant in that suit.
23. Co-defendant as a third party
Where in any suit a defendant claims against another defendant in the same suit (hereinafter referred to as "the co-defendant")—
(a)any contribution or indemnity;(b)any relief or remedy relating to or connected with any subject matter of the suit and substantially the same as a relief or remedy claimed by the plaintiff against the defendant,
such defendant may present a third party notice against the codefendant in the same manner and subject to the same conditions as if the co-defendant were a third party and the same procedure shall be adopted for the determination of the claims made against the co-defendant as if the co-defendant were a third party.
Order II Frame of suit
1. Frame of suit
Every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
2. Suit to include whole claim, relinquishment of part of claim and omission to sue for one of several reliefs
(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 in order to bring the suit within the jurisdiction of any court.(2)Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so 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 afterward sue for any relief so omitted.3. Joinder of causes of action
(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 subject matters at the date of instituting the suit.4. Only certain claims to be joined for recovery of immovable property
A cause of action shall not unless 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; or(c)claims in which the relief sought is based on the same cause of action:
Provided that, nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
5. Claims by or against executor, administrator or heir
A claim by or against an executor, administrator or heir, as such shall not 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, administrator or heir, or such as he was entitled to, or liable for, jointly with the deceased person whom he represents.
6. Power of court to order separate trials
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 order separate trials or make such other order as may be expedient.
7. Objections as to misjoinder of causes of action
All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and in all case where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
Order III Recognised agents and advocates
1. Appearances, etc., may be in person, by recognised agent or by advocate
Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person or by his recognised agent or by an advocate duly appointed to act on his behalf or, where the Attorney-General is a party, by a public officer duly authorised by him in that behalf:Provided that, any such appearance shall, if the court so directs, be made by the party in person.
2. Recognised agents
The recognised agents of parties by whom such appearances, applications and acts may be made or done are—
(a)persons holding powers-of-attorney, authorising them to make appearances or applications and to do such acts on behalf of such parties;(b)persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.
2A. Certification by Council for Legal Education
Notwithstanding the provisions of rules 1 and 2, an advocate shall not appear before a commercial court unless he is certified by the council for legal education as being knowledgeable in commercial law and practice, or has obtained permission from the Judge in charge of the Commercial Court to appear in respect of a specific case.
3. Service of process on recognised agent
(1)Processes served on the recognised 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 service of process on a party to a suit shall apply to the service of process on his recognised agent.4. Advocate to produce written authority when required
The court may require any advocate claiming to act on behalf of any party who has not appeared in person or by his recognised agent to produce, within such time as may be reasonable, a written authority signed by such party or his recognised agent authorising the advocate to act on behalf of such party.
5. Service of process on advocate
Any process served on the advocate of any party or left at the office or ordinary residence of such advocate, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the advocate represents and, unless the court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.
6. Agent to accept service and appointment to be in writing and to be filed in court
(1)Besides the recognised agents described in rule 2 any person residing within the jurisdiction of the court may be appointed an agent to accept service of process.(2)Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in court.Order IV Institution of suits
1. Suit to be commenced by plaint
(1)Every suit shall be instituted by presenting a plaint electronically or manually to the court or such officer appointed in that behalf.(2)Every plaint shall comply with the rules contained in Order VI and VIII, so far as they are applicable.(3)A suit shall not be instituted in the Commercial Division of the High Court concerning a commercial matter which is pending before another court or tribunal of competent jurisdiction or which falls within the competency of a lower court.(4)It shall not be mandatory for a commercial case to be instituted in the Commercial Division of the High Court.(5)Notwithstanding the provisions of Rule 10 of the High Court Registries Rules, and without prejudice to the exception under subrule (1) of Rule 7 of the High Court Registries Rules, all preliminary steps in the Commercial Division, including the decision as to whether or not the suit concerns a commercial case shall be determined by a judge and such suit shall not come up for mention except for the judge to make a rescheduling order in respect of the case.2. Register of suits
The court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits; and such entries shall be numbered in every year according to the order in which the plaints are presented.
3. Assignment of instituted suit
Where a suit has been duly instituted it shall be assigned to a specific Judge or Magistrate electronically or manually by the Judge or Magistrate in Charge of the court.
Order V Issue and service of summons
(a) Issue of summons
1. Summons to file a written statement of defence
(1)Where a suit has been duly instituted, a summons may be issued to the defendant at the time when the suit is assigned to a specific Judge or Magistrate pursuant to the provisions of rule 3 of Order IV, to file in accordance with sub rule (1) of rule 1 of Order VIII, a written statement of defence to the claim.(2)Where a summons to file a written statement of defence has not been effected in consequence of the plaintiff s failure to pay service fees or to effect service within the time provided under rule 10 of this Order, the court shall strike out the suit.
2. Summons to be signed and sealed
Every summons shall be signed manually or electronically by the Judge or Magistrate or such officer as may be appointed by the Chief Justice in that behalf and shall be sealed with the seal of the court.
3. Copy of plaint
Every summons shall be accompanied by a copy of the plaint and copies of other documents as may be prescribed by the Chief Justice for the information of the defendant regarding the future conduct of the suit.
4. Fixing a date for orders
The presiding Judge, Magistrate or the Registrar shall after the issuance of summons under rule 1 of Order V, fix a date for both parties to appear for orders as prescribed under rule 17 of Order VIII taking into account the time required for service of summons, filing of the written statement of defence and reply thereto.
(b) Service of summons
5. Delivery or transmission of summons for service
(1)Where the defendant resides within the jurisdiction of the court in which the suit is instituted or has an agent resident within that jurisdiction who is empowered to accept service of the summons, the summons shall, unless the court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.(2)The proper officer may be an officer of a court other than that in which the suit is instituted and, where he is such an officer, the summons may be sent to him by post or in such other manner as the court may direct.6. Mode of service
Service of summons shall be made within fourteen days after it has been received by delivering or tendering a copy thereof signed by the judge, magistrate or such officer as the Chief Justice may appoint in this behalf and sealed with the seal of the Court.
7. Service on several defendants
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 when practicable or on his agent
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 such agent shall be sufficient.
9. Service on agent by whom defendant carries on business
(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 the agent of the owner or charterer.10. Service on agent in charge in suits for immovable property
Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.
11. Where service may be made on any adult member of defendant's family
Where in any suit the defendant is absent from his residence at the time when the service of the summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family who is of sound mind, whether male or female, who, is residing with him.
12. Person served to sign acknowledgement
Where the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf, he shall require the person to whom the copy is so delivered or tendered to sign an acknowledgement of service endorsed on the original summons:Provided that, where the defendant, his agent or such other person refuses to sign the acknowledgement the serving officer shall leave a copy thereof with him and return the original to the court together with an affidavit stating that the person upon whom he served the summons refused to sign the acknowledgement, that he left a copy of the summons with such person and the name and address of the person (if any) by whom the person on whom the summons was served was identified.
13. Procedure when defendant cannot be found
Where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other 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 within fourteen days of affixing such copy then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
14. Endorsement of time and manner of service
The serving officer shall, within fourteen days of service in all cases in which the summons has been served under rule 12, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.
15. Where service may be made on any adult member of defendant’s family
Where any suit the defendant is absent from his residence at the time when the service of the summons is sought to effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family who is of sound mind, whether male or female, who, is residing with him.
16. Substituted service
(1)Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that, for any other reason, the summons cannot be served in the ordinary way, the court shall 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)Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally.(3)Where service is substituted by order of the court, the court shall fix such time for the appearance of the defendant as the case may require.17. Service by post
(1)Where the court is satisfied that to require a summons to be served on a defendant in the ordinary manner or by substituted service may cause undue delay and that the summons may more conveniently be served by post, the court may order that the summons be served by post.(2)Where a summons has been sent to a defendant by post and the court is satisfied that under the provisions of rule 26 the service may be deemed to have been duly effected, the summons shall be deemed to have been served on the defendant as effectively as if it had been served on him personally.(3)Where service is by post the court shall fix such time for appearance of the defendant as the case may require.18. Service of summons where defendant resides within jurisdiction of another court
(1)The original and a copy of a summons may be sent by the court by which it is issued either by one of its officers or by post to any court (not being the High Court) having jurisdiction in the place where the defendant resides.(2)Where the defendant resides within the jurisdiction of the High Court of Zanzibar the original and a copy of the summons may be sent by the court by which it is issued either by one of its officers or by post to the High Court of Zanzibar or to any court subordinate thereto within whose jurisdiction the defendant resides for service on the defendant.19. Duty of court to which summons is sent
The court to which the original and a copy of a summons are sent under rule 18 shall, upon receipt thereof, proceed as if the summons had been issued by such court and shall then within fourteen days of completing such proceeding return the summons to the court of issue, together with the record (if any) of its proceedings with regard thereto.
20. Service on defendant in prison
Where the defendant is confined in a prison, the original and a copy of the summons shall be delivered or sent to the officer in charge of the prison for service on the defendant.
21. Service on officers of Government and local government authorities
Where the defendant is an officer of the government or of a local government authority the court may, if it appears to it that the summons may be most conveniently so served, send the original and a copy of the summons for service on the defendant to the head of the office in which he is employed.
22. Service on members of armed forces
Where the defendant is a member of the armed forces of the Republic, the court shall send the original and a copy of the summons for service on the defendant to his commanding officer.
23. Duty of person to whom summons is delivered or sent for service
(1)Where the original and a copy of a summons are delivered or sent to any person for service under rule 20, rule 21 or rule 22, such person shall be bound to serve the summons, if possible and within fourteen days after service to return it under his signature, with a written acknowledgement of the defendant or, if there is no such acknowledgement, with a certificate of service, and such signature or certificate 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.24. Service where defendant resides in neighbouring country
Where the defendant is believed to reside in Kenya, Uganda, Malawi or Zambia and has no known agent in Tanzania empowered to accept service, the summons may be served—
(a)where the plaintiff has furnished the postal address of the defendant, by post;(b)in any other case, through the courts of the country in which the defendant is believed to reside; or(c)by leave of the court, by the plaintiff or his agent.
25. Service where defendant resides outside Tanzania
Where the defendant is believed to reside outside Tanzania, elsewhere than in Kenya, Uganda, Malawi or Zambia and has no known agent in Tanzania empowered to accept service, the court may, on the application of the plaintiff, order that service of the summons be effected—
(b)by the plaintiff or his agent; or(c)through the courts of the country in which the defendant is believed to reside.
26. Service by post, when effective
Service by post may be deemed to have been duly effected if—
(a)the summons is returned by the defendant endorsed with an acknowledgement of receipt;(b)a letter or other document is received from the defendant acknowledging or indicating that he received the summons; or(c)evidence is produced that a postal packet was received by the defendant, supported by a certificate of an officer of the court that the postal packet contained the summons.
27. Service by plaintiff or his agent
Service by the plaintiff or his agent may be deemed to have been duly effected if an affidavit is filed by the person who effected the service—
(a)that he personally served the summons on the defendant;(b)that the defendant was personally known to him or was identified to him by a person named in the affidavit; and(c)exhibiting the summons or a copy thereof endorsed by the defendant with an acknowledgement of service or giving the reasons why no such acknowledgement could be obtained.
28. Service through courts of other countries
Service through the courts of the country in which the defendant is believed to reside may be deemed to have been duly effected if the summons is returned by any such court with an endorsement that it has been served.
29. Procedure for procuring service through courts of other countries
(1)Where the court of a resident magistrate or a district court has ordered the service of a summons to be effected through the courts of any country, other than Kenya, Uganda, Malawi or Zambia, in which the defendant is believed to reside, it shall remit to the Registrar of the High Court at Dar es Salaam, and where the High Court has so ordered, the Registrar shall issue, a summons, together with two copies thereof and two copies of a translation thereof in the language of the country in which the summons is to be served, if that language is other than English, and the Registrar shall thereupon send those documents together with a certificate as to the sum of money deposited or secured to cover the expenses of service, to the Permanent Secretary to the Ministry for the time being responsible for legal affairs—
(a)where leave has been given for service to be effect in a country with which a convention has been made by the United Republic concerning the service of civil processes, for transmission to the representative of the United Republic in that country or as the convention may otherwise provide; or(b)for transmission to the Government of the country in which leave has been given for service to be effected, with a letter of request that service be effected through the courts of that country.(2)Where the defendant is believed to reside in Kenya, Uganda, Malawi or Zambia the court which issued the summons may send the original and a copy thereof for service direct to any court having civil jurisdiction in the place where the defendant is believed to reside.(3)A summons shall not be sent for service through the courts of any other country unless there has been deposited with the court or secured a sum sufficient in the opinion of the court to cover the expenses of service.
30. Electronic substituted service
(1)Without prejudice to other modes of service under this Order, substituted service may also be effected electronically by way of e-mail or facsimile using the addresses previously disclosed or used between the parties in their business transaction.(2)A copy of such service shall be simultaneously copied to the court.(3)For the avoidance of doubt, a delivered status report shall be deemed as proof of service.Order VI Pleading generally
1. Pleading
"Pleading" means a plaint or a written statement of defence (including a written statement of defence filed by a third party) and such other subsequent pleadings as may be presented in accordance with rule 13 of Order VIII.
2. Service of pleading on parties to suit
(1)Where any pleading is presented to the court the party presenting the pleading shall—
(a)in the case of plaint, present to the court such additional number of copies of the plaint as there may be defendants to enable the court to serve a copy of the plaint on each of the defendants; and(b)in the case of any other pleading—
(i)prior to the presentation of the pleading, serve or cause to be served on each of the other parties to the suit a copy of such pleading; or(ii)at the time of such presentation present to the court such additional number of copies of the pleading as there may be other parties to the suit who have not been served with them in accordance with provisions of subparagraph (i) , and the court shall cause to be served on each of such parties a copy of such pleading.(2)A party to a suit shall be deemed to have been served with a copy of a pleading under the provisions of subparagraph (b) of sub-rule (1) where such copy is served on the person who has entered appearance on behalf of such party or on his advocate.3. Pleading to state material facts and not evidence
Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively; and dates, sums and numbers may be expressed in figures.
4. Particulars to be given where necessary
In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other case in which particulars may be necessary to substantiate any allegation, such particulars (with dates and items if necessary) shall be stated in the pleading.
5. Further and better statements or particulars
A further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleading may in all cases be ordered, upon such terms, as to costs and otherwise as may be just.
6. Condition precedent
Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.
7. Departure
No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.
8. Denial of contract
Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.
9. Effect of document to be stated
Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.
10. Malice, knowledge, etc.
Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.
11. Notice
Wherever it is material to allege notice to any person of any fact, matter of thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, are material.
12. Implied contract or relation
Wherever any contract or any relation between any person is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversation or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstance, he may state the same in the alternative.
13. Presumption of law
Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied (e.g. consideration from a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim).
14. Pleading to be signed
Every pleading shall be signed by the party and his advocate (if any); provided that, where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf.
15. Verification of pleadings
(1)Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.(2)The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verified upon information received and believed to be true.(3)The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.16. Striking out pleading
The court may, at any stage of the proceedings, order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.
17. Amendment of pleading
The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
18. Failure to amend after order
Where a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the court.
Order VII Plaint
1. Particulars to be contained in plaint
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 including email address, fax number, telephone number and post code if available;(c)the name, description and place of residence of the defendant including email address, fax number, telephone number and post code if available, so far as they can be ascertained;(d)where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;(e)the facts constituting the cause of action and when it arose;(f)the facts showing that the court has jurisdiction;(g)the relief which the plaintiff claims;(h)where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and(i)a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.
2. In money suits, precise amount of money to be stated
Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:Provided that, 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, the plaint shall state approximately the amount sued for.
3. Where subject matter of suit is immovable property, identification required
Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by a title number under the Land Registration Act, the plaint shall specify such title number.
4. When plaintiff sues as representative
Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.
5. Defendant's interest and liability to be shown
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. Ground of exemption from limitation law
Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.
7. Relief to be specifically stated
Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for; and this rule shall apply to any relief claimed by the defendant in his written statement.
8. Relief founded on separate grounds
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.
9. List of documents
(1)The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it.(2)The clerk of court shall sign such list if, on examination, he finds it to be correct.10. Return of plaint and procedure on returning plaint
(1)The plaint shall, 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 or magistrate, 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.11. Rejection of plaint
The plaint shall be rejected in the following cases—
(a)where it does not disclose a cause of action;(b)where the relief claimed in undervalued and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;(c)where the suit appears from the statement in the plaint to be barred by any law:Provided that, where a plaint does not disclose a cause of action or where the suit appears from the statement in plaint to be barred by any law and the court is satisfied that if the plaintiff is permitted to amend the plaint, the plaint will disclose a cause of action or, as the case may be, the suit will cease to appear from the plaint to be barred by any law, the court may allow the plaintiff to amend the plaint subject to such conditions as to costs or otherwise as the court may deem fit to impose.
12. Procedure on rejecting plaint
Where a plaint is rejected the judge or magistrate shall record an order to that effect with the reasons for such order.
13. Where rejection of plaint does not preclude presentation of fresh plaint
The rejection of the plaint on any of the grounds set out in rule 11 shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
Documents relied on in plaint
14. Production of document on which plaintiff sues
(1)Where a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
List of other documents
(2)Where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.15. Statement in case of documents not in plaintiff's possession or power
Where any such document is not in the possession or power of the plaintiff, he shall, if possible state in whose possession or power it is.
16. Suits on lost negotiable instruments
Where the suit is founded upon a negotiable instrument and it is proved that the instrument is lost and an indemnity is given by the plaintiff, to the satisfaction of the court, against the claims of any other person upon such instrument, the court may pass such decree as it would have passed if the plaintiff had produced the instrument in court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.
17. Production of shop book and original entry to be marked and returned
(1)Save in so far as is otherwise provided by the Evidence Act, where the document on which the plaintiff sues is an entry in a shop book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.(2)The court or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and, after examining and comparing the copy with the original shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.18. Inadmissibility of document not produced when plaint filed
(1)A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.(2)Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory.Order VIII
A. Written statement of defence, set-off and counterclaim
1. Written statement of defence
(1)Where a summons to file a defence has been served in accordance with Order V and the defendant wishes to defend the suit, he shall within twenty-one days from the date of service of the summons, file to the court a written statement of defence and enter appearance on the date specified in the summons.(2)The provisions of rule 1 of Order VII shall apply mutatis mutandis in respect to filing a written statement of defence.(3)The court may, on application by the defendant before the expiry of the period provided for filing a written statement of defence or within seven (7) days after expiry of that period and upon the defendant showing good cause for failure to file such written statement of defence, extend time within which the defence has to be filed for another ten days and the ruling to that effect shall be delivered within 21 days.(4)The extended ten days under sub-rule (3) shall be counted from the date of the order of the court for extension of time.
2. New facts and preliminary Objections must be specifically pleaded
The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.
3. Denial to be specific
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
4. Evasive denial
Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
5. Specific denial
Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:Provided that, the court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
6. Particulars of set-off to be given in written statement and effect of setoff
(1)Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, within period of twenty-one days of being served with the summons present a written statement containing the particulars of the debt sought to be set-off:Provided that, a written statement shall not contain particulars of—
(a)any debt, where the suit is brought for the recovery of taxes, duties or penalties;(b)a debt arising out of a right or claim to repayment in respect of any taxes, duties or penalties.(2)The written statement shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect of both the original claim and the set-off; but this shall not affect the lien, upon the amount decreed, of any advocate in respect of the costs payable to him under the decree.(3)The rule relating to a written statement by a defendant shall apply to a written statement in answer to a claim of set-off.
7. Defence of 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 may be, separately and distinctly.
8. New ground of defence
Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be, in his written statement.
9. Counterclaim
(1)Where in any suit the defendant alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of a cause of action accruing to the defendant before the presentation of a written statement of his defence the defendant may, in his written statement of defence, state particulars of the claim made or relief or remedy sought by him:Provided that, a written statement of defence shall not state—
(a)any particulars of claim where the suit is brought for the recovery of taxes, duties or penalties;(b)particulars of any claim to repayment in respect of any taxes, duties or penalties.(2)Where a counterclaim is set-up in a written statement of defence, the counterclaim shall be treated as a cross-suit and the written statement shall have the same effect as a plaint in a cross-suit, and the provisions of Order VII shall apply mutatis mutandis to such written statement as if it were a plaint.
10. Counterclaim against plaintiff and third party
(1)Where a defendant, by a written statement, sets up any counterclaim which raises questions between himself and the plaintiff along with another person (whether or not a party to the suit), he may join that person as a party against whom the counterclaim is made.(2)Where a defendant joins a person as party against whom a counterclaim is made he shall add to the title of the written statement of defence a further title similar to the title in a plaint setting forth the name of such person and a copy of such written statement of defence together with a notice requiring such person, should he wish to defend the defendant's counterclaim, to file his written reply in answer to the claim within the period specified in rule 11 shall be served on him as if such notice were summons and such counterclaim were a plaint.11. Reply to counterclaim
(1)Where a defendant sets up a counterclaim, the plaintiff and the person (if any) who is joined as a party against whom the counterclaim is made, shall each, if he wishes to dispute the counterclaim, present to the court a written reply containing a statement of his defence in answer to the counterclaim within twenty-one days from the date of the service upon him of the counterclaim.(2)The rules relating to a written statement of defence by a defendant shall apply to a reply by the plaintiff or a person joined as a party against whom a counterclaim is made.
12. Court may order separate trial of counterclaim
Where a defendant has set up a counterclaim the court may, if it is of the opinion that the subject matter of the counterclaim ought for any reason to be disposed of by a separate suit, order the counterclaim to be struck out or order it to be tried separately or make such other order as may be expedient.
13. Subsequent pleadings
No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counterclaim shall be presented except by the leave of the court and upon such terms as the court thinks fit, but the court may at a pre-trial conference require a written statement or additional written statement from any of the parties and fix a time for presenting the same:Provided that, where a defendant has presented a written statement of defence in accordance with a summons to file a defence the plaintiff may, without obtaining leave of the court, present a reply to the written statement of defence within seven days after the written statement of defence or, where there are two or more defendants, the last of the written statements of defence, shall have been served upon him in accordance with the provisions of rule 2 of Order VI.
14. Failure to present written statement of defence
(1)Where any party required to file a written statement of defence fails to do so within the specified period or where such period has been extended in accordance with sub rule 3 of rule 1, within the period of such extension, the court shall, upon proof of service and on oral application by the plaintiff to proceed ex parte, fix the date for hearing the plaintiff s evidence on the claim.(2)Where before ex-parte judgment has been entered pursuant to sub-rule (1) the court may, if the defendant assigns good cause, set aside the order to proceed ex parte, upon such terms as the court may direct as to costs or otherwise.(3)The decree obtained under this rule shall not be executed until after the expiry of the period of sixty days from the date of judgment.
15. Setting aside a default judgment
(1)Where a judgment has been entered pursuant to rule 14 the court may, upon application made by the aggrieved party, within sixty days from the date of the judgment, set aside or vary the default judgment upon such terms as may be considered by the court to be just.(2)In considering whether to set aside or vary the order for the default judgment under this rule, the court shall consider whether the aggrieved party has:
(a)applied to the court within the period specified under sub rule (1); and(b)given good cause for failing to file a written statement of defence.(3)Where a judgment is set aside, the order shall be effective upon the aggrieved party or judgment debtor filing and serving a written statement of defence within the period specified by the court.(4)Where the defendant fails to file a written statement of defence within the period specified by the court pursuant to sub rule (3), the default judgment shall revive.(5)The judgment revived pursuant to sub rule (4) shall neither be set aside nor appealed against.
16. When all pleadings presented
As soon as the written statement of defence or, if there are more defendants than one, the last written statement of defence, and the reply (if any) thereto, or the last reply if there are more plaintiffs than one, or other pleadings have been presented, the case shall be ready for mediation.
B. First pre-trial settlement and scheduling conference
17. Atendance for orders
(1)The court shall, within fourteen days from the date of completion of the pleadings, on its own motion direct any party or parties to the proceedings to appear before it, for orders or directions in relation to any interim applications or other preliminary matters which the parties have raised or intend to raise as it deems fit, for the just, expeditious and economical disposal of the suit.(2)Upon hearing the parties on an interim application, the court shall deliver its ruling within a period of fourteen days and make such order as to costs as it considers just.(3)Where any party fails to appear under sub rule (1), the court may dismiss the suit, strike out the defence or counterclaim as the case may be or make such other order as it considers just.(4)Any order or direction given or made against any party who does not appear before the court when directed to do so under sub-rule (1), may be set aside or varied by the court on such terms as it considers just upon an application within thirty days.
18. Pre-trial conference to be held when directed by the court
(1)Without prejudice to rule 17 of Order VIII, at any time before any case is tried, the court may direct parties to attend a pre-trial conference relating to the matters arising in the suit or proceedings.(2)The court may, at the pre-trial conference, consider any matter including the possibility of settlement of all or any of the issues in the suit or proceedings and require the parties to furnish the court with any such information as it considers fit, and may give all such directions as it appears necessary or desirable for securing a just, expeditious and economical disposal of the suit or proceedings.(3)The court may, at any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the suit or proceedings, enter judgment in the suit or proceedings or make such order to give effect to the settlement.
19. Notification of pre-trial conference
(1)Parties to the proceedings shall be informed of the date and time appointed for the holding of the pre-trial conference in their presence or by way of notice.(2)Each party shall comply with any directions given viva voce or in such notice as the case may be.20. Failure to appear of one or more of parties
(1)Where at the time appointed for the pre-trial conference, one or more of the parties fails to attend, the court may
(a)dismiss the suit or proceedings if a defaulting party is the plaintiff;(b)strikeout the defence or courter-claim if a defaulting party is a defendant;(d)make such other order as it considers fit.(2)An order made by the court in the absence of a party concerned or affected by the order may be set aside by the court, on the application of that party within fourteen days from the date of the order, on such terms as it considers just.(3)Subsequent to the first adjournment, if all parties fail to attend the pre-trial conference, the court shall dismiss the suit.
21. Failure to comply with directions
Where a party has failed to comply with any of the directions, the court may make the following orders
(a)dismiss the suit, if the non-complying party is a plaintiff;(b)strikeout the defence, if the non-complying party is a defendant;(c)order a party to pay costs; or(d)make any other order that is deemed just.
22. Determination of speed track of case
(1)A judge or a magistrate to whom a case has been assigned shall, within a period of twenty-one days after conclusion of the pleadings, hold and preside over a first pretrial settlement and scheduling conference, attended by the parties or their recognised agents or advocates, for the purpose of ascertaining the speed track of the case, resolving the case through the use of procedures for alternative dispute resolution such as negotiation, conciliation, mediation, arbitration or such other procedures not involving a trial.(2)In ascertaining the speed track of the case, the presiding judge or magistrate, shall after consultation with the parties or their recognized agents or advocates, determine the appropriate speed track for such a case and make a scheduling order, setting out the dates or time for future events or steps in the case including the use of procedures for alternative dispute resolution.(3)The appropriate speed track of a case shall be determined as follows
(a)speed Track One shall be reserved for cases considered by the judge or magistrate to be fast cases, capable of being or are required in the interests of justice to be concluded fast within a period not exceeding ten months from the date of the first pretrial conference;(b)speed Track Two shall be reserved for cases considered by the judge or magistrate to be normal cases capable of being or are required in the interests of justice to be concluded within a period not exceeding twelve months from the date when mediation or arbitration or other similar alternative procedure fails;(c)speed Track Three shall be reserved for cases considered by the judge or magistrate to be complex cases capable of being or are required in the interests of justice to be concluded within a period not exceeding fourteen months from the date when negotiation, conciliation, mediation or arbitration or other similar alternative procedure fails;(d)speed Track Four shall be reserved for cases considered by the judge or magistrate to be special cases which fall in none of the three abovementioned categories but which nonetheless need to be concluded within a period not exceeding twenty-four months from the date when negotiation, conciliation, mediation or arbitration or other similar alternative procedure fails.
23. Prohibition of amendment to scheduling order
Where a scheduling conference order is made, no departure from or amendment of such order shall be allowed unless the court is satisfied that such departure or amendment is necessary in the interests of justice and the party in favour of whom such departure or amendment is made shall bear the costs of such departure or amendment, unless the court directs otherwise.
C. Negotiation, conciliation, mediation and arbitration procedure
24. Reference to mediation and arbitration
Subject to the provisions of any written law, the court shall refer every civil action for negotiation, conciliation, mediation or arbitration or similar alternative procedure, before proceeding for trial.
25. Mediation
(1)The court shall require the parties to appoint and submit the name of a mediator of their choice within fourteen days after pleadings are complete.(2)Where the parties fail to select a mediator under sub rule (1), the court shall, manually or electronically, appoint a mediator and notify the parties accordingly.(3)Upon the appointment of the mediator, the court shall within seven days notify the parties of the commencement of the mediation session.(4)At least seven days before mediation, parties shall provide the mediator and the other parties to the suit with a statement of issues together with pleadings and any documents of importance which identify the issues in dispute and the parties’ positions and interests thereon.(5)The mediator shall, within seven (7) days of his appointment, set a date for the first session of mediation which shall not be later than twenty one days from the date of his appointment(6)The following shall qualify to be nominated under sub-rule (1) to act as mediators—
(b)a registrar or deputy registrar;(c)a magistrate in case of a magistrates’ court;(d)a person with the relevant qualifications and experience in mediation appointed by the Chief Justice;(e)a retired judge or magistrate; or(f)a person with the relevant qualifications and experience in mediation and chosen by the parties.(7)The mediators under paragraph (d) and (e) of sub-rule (6) shall be remunerated or compensated in a manner to be determined by the Chief Justice and published in the Gazette.(8)Where a person is chosen as the mediator by the parties under paragraph (f) of sub-rule (6), it shall be the responsibility of the parties to pay fees of that mediator.26. Purpose and nature of mediation
(1)In conducting any mediation session under these Rules—
(a)the parties shall strive to reduce costs and delays in dispute resolution, and facilitate an early and fair resolution of disputes; and(b)the mediator shall facilitate communication between or among the parties to the dispute in order to assist them in reaching a mutually acceptable resolution.(2)Without derogating from the generality of sub rule (1), the mediator—
(a)shall, in an independent and impartial manner, do everything to facilitate parties to resolve their dispute;(b)may, where necessary, conduct joint or separate meetings with the parties and may make a proposal for a settlement;(c)may, where services of an expert may be obtained at no cost or where such services may be obtained at a cost, and if parties agree to pay such costs, obtain expert advice on a technical aspect of the dispute, which advice shall be given in an independent and impartial manner and shall have advisory effect;(d)shall be guided by principles of objectivity, fairness and natural justice, and shall give consideration to, among other things:
(i)the rights and obligations of the parties;(ii)the usages of the trade concerned; and(iii)the circumstances surrounding the dispute, including any previous business practices between the parties;(e)may, at any stage of the mediation proceedings and in a manner that the mediator considers appropriate, take into account the wishes of the parties, including any request by either of the parties that the mediator shall hear oral statements for a speedy settlement of the dispute; and(f)may, at any stage of the mediation proceedings, make proposals for the settlement of the dispute.(3)A request for the services of an expert under this rule may be made by the mediator with the consent of parties or by any party with the consent of the other party.27. Attendance to mediation
(1)The party or his advocate or both, where the parties are represented shall be notified of the date of mediation and shall attend at the mediation session.(2)Where a third party may be liable to satisfy all or part of a judgment in the suit or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment in the suit, the third party or his advocate may also attend the mediation session, unless the court orders otherwise.28. Authority to settle
(1)A party to a mediation session shall have authority to settle any matter during the mediation session.(2)A party who requires the approval of another person before agreeing to a settlement shall, before the mediation session, arrange to have ready means of communication to that other person throughout the session, whether it takes place during or after regular business hours.29. Failure to attend
Where it is not practicable to conduct a scheduled mediation session because a party fails without good cause to attend within the time appointed for the commencement of the session, the mediator shall remit the file to the trial judge or magistrate who may—
(a)dismiss the suit, if the non complying party is a plaintiff, or strike out the defence, if the non complying party is a defendant;(b)order a party to pay costs; or(c)make any other order he deems just.
30. Restoration of the suit dismissed for nonappearance to mediation
(1)Any party aggrieved by an order made under the above rule shall, within seven days from the date of the order, file in court an application for restoration of a suit or a written statement of defence.(2)The court shall hear and determine such application within fourteen (14) days from the date of lodging the application.(3)Upon the applicant showing good cause the court shall set aside orders made under rule 29 of this Order and restore the suit or the defence and remit the case to the mediator who shall issue a notice for mediation.
31. Confidentiality
All communications at a mediation session and the mediation notes and records of the mediator shall be confidential and a party to a mediation may not rely on the record of statement made at or any information obtained during the mediation as evidence in court proceedings or any other subsequent settlement initiatives, except in relation to proceedings brought by either party to vitiate the settlement agreement on the grounds of fraud.
32. Duration of mediation
The mediation period shall not exceed a period of thirty days from the date of the first session of mediation.
33. End of mediation
A mediation shall come to an end when—
(a)the parties execute a settlement agreement;(b)the mediator, after consultation with the parties, makes a declaration to the effect that further mediation is not worthwhile; or(c)thirty days expire from the date of the first session of mediation.
34. Duty to remit the case to the trial court
At the conclusion of the mediation the mediator shall remit the record to the trial court immediately or within forty eight hours.
35. Procedure on arbitration
Any matter in dispute referred to arbitration under a court order shall be dealt with as provided for under the Second Schedule to this Code.
36. Agreement to resolved a dispute through negotiation or conciliation
(1)At the request of any party and with consent of the other party, the court may refer any matter in dispute to negotiation or conciliation, and such matter shall be dealt with in accordance with the applicable law and the agreement of the parties to the negotiate or conciliate and arrive at a settlement.(2)The parties shall bear costs arising from or incidental to such negotiations or conciliation.
37. Duration of negotiation or conciliation
The negotiation or conciliation period shall not exceed a period of thirty days from the date the trial court referred the matter to negotiation or conciliation unless otherwise extended by the trial court.
38. Closure of negotiation or conciliation
A negotiation or conciliation shall come to a conclusion when—
(a)the parties execute a settlement agreement and notify the court within the prescribed period for negotiation or conciliation;(b)one of the parties or both make(s), a declaration to the effect that further negotiation or conciliation is not worthwhile; or(c)thirty days or such other period as may be extended by the trial court expire.
39. Duty to remit the agreement to the trial court
At the conclusion of negotiation or conciliation as stated in rule 38 (a) parties shall remit the settlement agreement to the trial court immediately or within forty eight hours.
D. Final pre-trial settlement and scheduling conference
40. Final pre-trial conference
(1)Where a suit is not resolved by negotiation, conciliation, mediation or arbitration or other similar alternative procedure it shall revert to the trial judge or magistrate for a final pre-trial settlement and scheduling conference, to enable the court to schedule the future events and steps which are bound or likely to arise in the conduct of the case, including framing of issues and the date or dates for trial.(2)In making a final pre-trial conference order, the court shall be guided by the speed track to which the specific case is allocated.(3)The final pre-trial settlement and scheduling conference shall be held within a period of fourteen days from the date when negotiation, conciliation, mediation or arbitration or other similar procedures failed.
41. Lapse of speed track of a case
Where the assigned speed track of a case runs its course before the conclusion of the suit, the court shall—
(a)where the delay is caused by the plaintiff, dismiss the suit with costs;(b)where the delay is caused by the defendant
(i)strike out the defence or counter claim with costs;(ii)proceed ex parte if the plaintiff had not closed his case; or(iii)determine the suit on the basis of the adduced evidence, if the plaintiff had closed his case; and(d)where neither party is to blame for the delay, extend time not exceeding half the period of the assigned speed track.
Order IX Appearance of parties and consequences of non-appearance
1. Parties to appear on day fixed for hearing
On the day so fixed for hearing, the parties shall be in attendance at the day fixed for court-house in person or by their respective recognized agents or advocate, and the suit shall then be heard unless the hearing is adjourned to a future date to be fixed by the court.
2. Where neither party appears suit to be dismissed
Where neither party appears when the suit is called on for hearing the court may make an order that the suit be dismissed.
3. Plaintiff may bring a fresh suit or a court may restore the suit
Where a suit is dismissed under rule 2, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply to set aside the dismissal order, and if he satisfies the court that there was good cause for his non-appearance, the court shall set aside the dismissal order and shall appoint a day for proceeding with the suit.
4. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance
Where the court has adjourned the hearing of the suit exparte and the defendant at or before such hearing, appears and assigns good cause for his previous nonappearance, he may, upon such terms as the court may direct as to cost or otherwise, be heard in answer to the suit as if he had appeared on the date fixed for his appearance.
5. Procedure where defendant only appears
Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
6. Decree against plaintiff by default bars fresh suit
(1)Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside and, if he satisfies the court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.(2)No order shall be made under this rule unless notice of the application has been served on the opposite party.7. Procedure in case of non-attendance of one or more of several plaintiffs
Where there are more plaintiffs than one and one or more of them appear and the others do not appear the court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared or make such order as it thinks fit.
8. Procedure in case of non-attendance of one or more of several defendants
Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed and the court shall, at the time or pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear:
Setting aside decrees ex parte
9. Setting aside decree or judgment ex parte against defendant
In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:Provided that, where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.
10. No decree or judgment to be set aside without notice to opposite party
No decree or judgment shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party or the persons who has entered appearance on behalf of such party.
Order X Examination of parties by the court
1. Ascertainment whether allegations in pleadings are admitted or denied
At the first hearing of the suit the court shall ascertain from each party or his advocate whether he admits or denies such allegations of facts as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made and the court shall record such admissions and denials.
2. Oral examination of party or companion of party
At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in court, or any person able to answer any material questions relating to the suit by whom such party or his advocate is accompanied, may be examined orally by the court; and the court may, if it thinks fit, put in the course of such examination questions suggested by either party.
3. Substance of examination to be written
The substance of the examination shall be reduced to writing by the judge or magistrate and shall form part of the record.
4. Consequence of refusal or inability of advocate to answer
(1)Where the advocate of any party who appears by an advocate or any such person accompanying an advocate as is referred to in rule 2 refuses or is unable to answer any material question relating to the suit which the court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.(2)If such party fails without lawful excuse to appear in person on the day so appointed, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.Order XI Discovery and inspection
1. Discovery by interrogatories
In any suit the plaintiff or defendant, by leave of the court, may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:Provided that, no party shall deliver more than one set of interrogatories to the same party without an order for that purpose:Provided also that, interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.
2. Particular interrogatories to be submitted
On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court and in deciding upon such application, the court shall take into account any offer which may be made by the party sought to be interrogated to deliver particulars, or to make admission, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the court shall consider necessary either for disposing fairly of the suit or for saving costs.
3. Costs of interrogatories
In adjusting the costs of the suit, inquiry shall, at the instance of any party, be made into the propriety of exhibiting such interrogatories; and if it is the opinion of the taxing officer or of the court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the cost occasioned by the said interrogatories and the answer thereto shall be paid in any event by the party in fault.
4. Interrogatories relating to corporations
Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.
5. Objections to interrogatories by answer
Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on any other grounds, may be taken in the affidavit in answer.
6. Setting aside and striking out interrogatories
Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories.
7. Filing of affidavit in answer
Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the court may allow.
8. No exception to be taken
No exception shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the court.
9. Order to answer or answer further
Where any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the court for an order requiring him to answer, or to answer further, as the case may be and an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the court may direct:Provided that, no order shall be made requiring a person to answer or answer further where any enactment or rule of law authorises or requires the refusal to answer any question on the ground that the answering of the question would be injurious to the public interest.
10. Application for discovery of documents
Any party may, without filing any affidavit, apply to the court for an order directing any other party to any suit to make discovery on oath of documents which are or have been in his possession or power, relating to any matter in question therein and on the hearing of such application the court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at the stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit:Provided that, discovery shall not be ordered when and so far as the court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs:Provided also that, discovery shall not be ordered where there is produced to the court a certificate under the hand of a Minister that, in his opinion, discovery, either generally or in relation to a certain document or a certain class of documents, would be injurious to the public interest.
11. Affidavit of documents
The affidavit to be made by a party against whom such order as is mentioned in rule 10 has been made, shall specify which (if any) of the documents therein mentioned he objects to produce.
12. Production of documents
It shall be lawful for the court, at any time during the pendency of any suit to order the production, by any party thereto upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the court shall think right; and the court may deal with such documents when produced, in such manner as shall appear just:Provided that, production shall not be ordered of a document where any enactment or rule of law authorises or requires the withholding of the document on the ground that the disclosure of the document would be injurious to the public interest.
13. Inspection of documents referred to in pleadings or affidavits
Every party to a suit shall be entitled at any time to give notice to any other party in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notion or his advocate, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the court that such document relates only to his own title, he being a defendant to the suit or that he had some other cause or excuse which the court shall deem sufficient for not complying with such notice, in which case the court may allow the same to be put in evidence on such terms as to costs and otherwise as the court shall think fit.
14. Time for inspection when notice given
The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his advocate, or in the case of banker's books or other books of account or books in constant use for the purpose of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground.
15. Order for inspection
(1)Where the party served with notice under rule 14 omits to give such notice of a time for inspection or objects to give inspection or offers inspection elsewhere than at the office of his advocate the court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit:Provided that, the order shall not be made when and so far as the court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.(2)Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavits of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party. The court shall not make such order for inspection of such documents when and so far as the court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.(4)Notwithstanding anything contained in this rule, an order for inspection of documents shall not be made where there is produced to the court a certificate under the hand of a Minister that in his opinion, inspection would be injurious to the public interest.16. Verified copies
(1)Where inspection of any business books is applied for, the court may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations:Provided that, notwithstanding that such copy has been supplied, the court may order inspection of the book from which the copy was made.(2)Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.(3)The court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party, other than the Attorney-General to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been in his possession or power; and, if not then in his possession when he parted with the same and what has become thereof.(4)An application made under sub-rule (3) shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession or power the document or documents specified in the application and that they relate to the matters in question in the suit or to some of them.17. Premature discovery
Where the party from whom discovery of any kind or inspection is sought objects to the same or any part thereof the court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined, first, and reserve the question as to the discovery or inspection.
18. Noncompliance with order for discovery
Where any party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution and if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect and an order may be made accordingly.
19. Using answers to interrogatories at trial
Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer:Provided that, in such case the court may look at the whole of the answers and, if it shall be of opinion that any others of them are so connected with those put in that the lastmentioned answers ought not to be used without them, it may direct them to be put in.
20. Application of Order to minors
This Order shall apply to minor plaintiffs and defendants, and to the next friends and guardians for the suit of persons under disability.
Order XII Admissions
1. Notice of admission of case
Any party to a suit may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
2. Notice to admit documents
Either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit after such notice, the costs of proving any such documents shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the court otherwise directs and no costs of proving any document shall be allowed unless such notice is given except where the omission to give the notice is, in the opinion of the court, a saving of expense.
3. Notice to admit facts
Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts mentioned in such notice; and in case of refusal or neglect to admit the same within six days after service for such notice, or within such further time as may be allowed by the court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the court otherwise directs:Provided that, any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice:Provided also that, the court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just.
4. Judgment on admissions
Any party may at any stage of a suit, where admissions of fact have been made either on the pleading, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.
5. Affidavit of signature
An affidavit of the advocate or his clerk, of the due signature of any admission made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admission, if evidence thereof is required.
6. Evidence of notice to produce documents
An affidavit of the advocate or his clerk, of the service of any notice to produce and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice and of the time when it was served.
7. Costs
If a notice under rule 6 is a notice to admit or produce specified documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.
Order XIII Production, impounding and return of documents
1. Documentary evidence to be produced at first hearing
(1)The parties or their advocates shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in court, and all documents which the court has ordered to be produced.(2)The court shall receive the document so produced provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.2. Effect of non-production of documents
No documentary evidence in the possession or power of any party which should have been, but has not been, produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the court for the non-production thereof; and the court receiving any such evidence shall record the reasons for so doing.
3. Rejection of irrelevant or inadmissible documents
The court may, at any stage of the suit, reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
4. Endorsements on documents admitted in evidence
(1)Subject to the provisions of the sub-rule (2), there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely—
(a)the number and title of the suit;(b)the name of the person producing the document;(c)the date on which it was produced; and(d)a statement of its having been so admitted; and(e)the endorsement shall be signed or initialed by the judge or magistrate.(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 5, the particular aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the judge or magistrate.5. Endorsements on copies of admitted entries in books, accounts and records
(1)Save in so far as is otherwise provided by the Evidence Act, where a document admitted in evidence in the suit is an entry in a letter-book or a shop-book or other account in current use, the party on whose behalf the book or account is produced may furnish a copy of the entry.(2)Where such a document is an entry in a public record produced from a public office or by a public officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced, the court may require a copy of the entry to be furnished—
(a)where the record, book or account is produced on behalf of a party, then by that party; or(b)where the record, book or account is produced in obedience to an order of the court acting of its own motion, then by either or any party.(3)Where a copy of an entry is furnished under the provisions of this rule, the court shall, after causing the copy to be examined, compared and certified in manner mentioned in rule 17 of Order VII, mark the entry and cause the book, account or record in which it occurs to be returned to the person producing it.6. Endorsements on documents rejected as inadmissible in evidence
Where a document relied on as evidence by either party is considered by the court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of sub-rule (1) of rule 4 together with a statement of its having been rejected, and the endorsement shall be signed or initialed by the Judge or magistrate.
7. Recording of admitted documents and return of rejected documents
(1)Every document which has been admitted in evidence, or a copy thereof where a copy has been substituted for the original under rule 5, shall form part of the record of the suit.(2)Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.8. Court may order any document to be impounded
Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17 of Order VII, the court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the court for such period and subject to such conditions as the court thinks fit.
9. Return of admitted documents
(1)Any person whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same—
(a)where the suit is one in which an appeal is not allowed, when the suit has been disposed of; or(b)where the suit is one in which an appeal is allowed, when the court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of:Provided that, a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor delivers to the proper officer a certified copy to be substituted for the original and undertakes to produce the original if required to do so:Provided also that, no document shall be returned which, by force of the decree, has become wholly void or useless.(2)On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.10. Court may send for papers from its own records or from other courts
(1)The court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other court, the record of any other suit or proceeding, and inspect the same.(2)Every application made under this rule shall (unless the court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.(3)Nothing contained in this rule shall be deemed to enable the court to use in evidence any document which under the law of evidence would be inadmissible in the suit.11. Provisions as to documents also applicable to material objects
The provisions herein contained as to documents shall, as far as may be, apply to all other material objects producible as evidence.
Order XIV Settlement of issues and determination of suit in issues of law or on issues agreed upon
1. Framing of issues
(1)Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.(2)Material propositions are those propositions of law or fact which plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.(3)Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.(4)Issues are of two kinds—
(5)At the first hearing of the suit the court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.(6)Nothing in this rule requires the court to frame and record issues where the defendant at the first hearing of the suit makes no defence.2. Issues of law and of fact
Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.
3. Materials from which issues may be framed
The court may frame the issues from all or any of the following materials—
(a)allegations made on oath by the parties, or by any person present on their behalf, or made by the advocates of such parties;(b)allegations made in the pleadings or in answers to interrogatories delivered in the suit;(c)the contents of documents produced by either party.
4. Court may examine witnesses or documents before framing issues
Where the court is of opinion that the issues cannot be correctly framed without the examination of some person not before the court or without the inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is, by summons or other process.
5. Power to amend, and strike out, issues
(1)The court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit; and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.(2)The court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.6. Questions of fact or law may by agreement be stated in form of issues
Where the parties to a suit are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter into an agreement in writing that, upon finding of the court in the affirmative or the negative of such issue—
(a)a sum of money specified in the agreement or to be ascertained by the court, or in such manner as the court may direct, shall be paid by one of the parties to the other of them, or that one of them shall be declared entitled to some right or subject to some liability specified in the agreement;(b)some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them; or as that other may direct; or(c)one or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute.
7. Court, if satisfied that agreement was executed in good faith, may pronounce judgment
Where the court is satisfied, after making such inquiry as it deems proper—
(a)that the agreement was duly executed by the parties;(b)that they have a substantial interest in the decision of such question as aforesaid; and(c)that the same is fit to be tried and decided,
it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by court and shall, upon the finding or decision on such issue, pronounce judgment according to the terms of the agreement; and, upon the judgment so pronounced, a decree shall follow.
Order XV Disposal of the suit at first hearing
1. Parties not at issue
Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the court may at once pronounce judgment.
2. One of several defendants not at issue
Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.
3. Parties at issue
(1)Where the parties are at issue on some question of law or of fact, and issues have been framed by the court as hereinbefore provided, if the court is satisfied that no further argument or evidence than the parties at once adduce is required upon such issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the court may proceed to determine such issues and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly.(2)Where the finding is not sufficient for the decision, the court shall postpone the further hearing of the suit and shall fix a day for the production of such further evidence or for such further argument as the case requires.4. Failure to produce evidence
Where a summons to appear has been issued by a court other than the High Court and either party fails without sufficient cause to produce the evidence on which he relies, the court may at once pronounce judgment, or may, if it thinks fit, after framing and recording issues, adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues.
Order XVI Summoning and attendance of witnesses
1. Summons to attend, to give evidence or produce documents
At any time after the suit is instituted, the parties may obtain, on application to the court, or to such officer as it appoints in this behalf, summonses to whose attendance is required either to give persons evidence or to produce documents.
2. Expenses of witnesses
(1)The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into court such sum of money as appears to the court to be sufficient to defray the traveling and other expenses of the person summoned in passing to and from the court in which he is required to attend, and for one day's attendance.(2)In determining the amount payable under this rule the court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.(3)Where the court is subordinate to the High Court regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf.3. Tender of expenses to witnesses
The sum so paid into court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally.
4. Procedure where insufficient sum paid in and expenses of witnesses detained more than one day
(1)Where it appears to the court or to such officer as it appoints in this behalf that the sum paid into court is not sufficient to cover such expenses or reasonable remuneration, the court may direct such further sum to be paid to the person summoned as appears to be necessary on that account and, in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person.(2)Where it is necessary to detain the person summoned for a longer period than one day the court may, from time to time, order the party at whose instance he was summoned to pay into court such sum as is sufficient to defray the expenses of his detention for such further period and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the court may discharge the person summoned without requiring him to give evidence or may both order such levy and discharge such person.5. Time, place and purpose of attendance to be specified in summons
Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend and also whether his attendance is required for the purpose of giving evidence or to produce a document or for both purposes; and any particular document which the person summoned is called on to produce shall be described in the summons with reasonable accuracy.
6. Summons to produce document
Any person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
7. Power to require persons present in court to give evidence or produce document
Any person present in court may be required by the court to give evidence or to produce any document then and there in his possession or power.Provided that the court shall not require a person to produce a document where any enactment or rule of law authorises or requires the withholding of the document on the ground that the production of the document would be injurious to the public interest.
8. Summons, how served
Every summons under this Order shall be served as nearly as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply in the case of all summonses served under this rule.
9. Time for serving summons
Service shall in all cases be made in sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for traveling to the place at which his attendance is required.
10. Procedure where witness fails to comply with summons
(1)Where a person to whom a summons has been issued either to attend to give evidence or to produce a document fails to attend or to produce the document in compliance with such summons, the court shall, if the certificate of the serving officer has not been verified by affidavit, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another court, regarding the service or non-service of the summons.(2)Where the court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.(3)In lieu of or at the time of issuing such proclamation, or at any time afterwards, the court may in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12.11. If witness appears attachment may be withdrawn
Where, at any time after the attachment of his property, such person appears and satisfies the court—
(a)that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service; and(b)where he has failed to attend at the time and place named in a proclamation issued under the rule 10, that he had no notice of such proclamation in time to attend,
the court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit.
12. Procedure if witness fails to appear
The court may, where such person does not appear, or appears but fails so to satisfy the court, impose upon him, such fine not exceeding one thousand shillings as it thinks fit, having regard to his condition in life and all the circumstance of the case, and may order his property, or any part thereof, to be attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine if any—Provided that, if the person whose attendance is required pays into court the costs and fine aforesaid, the court shall order the property to be released from attachment.
13. Mode of attachment
The provisions with regard to the attachment and sale of property in the execution of a decree shall, so far as they are applicable, be deemed to apply to any attachment and sale under this Order as if the person whose property is so attached were a judgment debtor.
14. Court may of its own accord summon as witnesses strangers to suit
Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit the court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine his as a witness or require him to produce such document.
15. Duty of persons summoned to give evidence or produce document
Whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purpose and whoever is summoned to produce a document shall either attend to produce it, or cause it, to be produced at such time and place.
16. Obligation of person summoned to attend hearing
(1)A person summoned and attending shall, unless the court otherwise directs, attend at each hearing until the suit has been disposed of.(2)On the application of either party and the payment through the court of all necessary expenses (if any), the court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may order him to be detained as a civil prisoner.17. Application of rules 10 to 13
The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person who having attended in compliance with a summons, departs without lawful excuse, in contravention of rule 16.
18. Procedure where witness apprehended cannot give evidence or produce document
Where any person arrested under a warrant is brought before the court in custody and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit and, on such bail or security being given, may release him, and, in default of his giving such bail or security, may order him to be detained as a civil prisoner.
19. No witness to be ordered to attend in person unless resident within certain limits
No one shall be ordered to attend in person to give evidence unless he resides—
(a)within the local limits of the court's ordinary original jurisdiction; or(b)without such limits but at a place less than fifty miles or, where there is(c)railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the court is situate, less than two hundred miles distance from the courthouse.
20. Consequence of refusal of party to give evidence when called on by court
Where any party to a suit present in court refuses, without lawful excuse, when required by the court, to give evidence or to produce any document then and there in his possession or power, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
21. Rules as to witnesses to apply to parties summoned
Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.
Order XVII Adjournments
1. Court may grant time and adjourn hearing and costs of adjournment
(1)At any stage of the suit the court may, if sufficient cause is shown, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.(2)Where a suit has been adjourned at the request of the plaintiff or by consent of both parties, such suit shall be placed last in the list of pending cases(3)In every case under sub-rule (1), the court shall fix a day for the further hearing of the suit and may make such order as it thinks fit with respect to the costs occasioned by the adjournment:Provided that—
(a)when the hearing of the suit has been commenced, it shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds that there are exceptional reasons to be recorded by the court requiring the adjournment of the hearing beyond the following day;(b)no adjournment shall be granted at the request of a party, or parties except where the circumstances are beyond the control of the party or parties as the case may be;(c)the fact that the advocate of a party is engaged in another court, shall not be a ground for unless that advocate is appearing before a superior court;(d)where the illness of an advocate or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground for adjournment, the court shall not grant adjournment unless it is satisfied that the party applying for adjournment could not have engaged another advocate in time;(e)where a witness is present in court but a party or his advocate though present in court, is not ready to examine the witness, the court may, if it thinks fit, receive the evidence of he witness and pass such orders as it thinks fit dispensing with the examination in chief or cross examination of the witness as the case may be, by the party or his advocate not present or not ready as aforesaid;(f)in the event of an adjournment at the instance of the court, the reasons for the adjournment shall be recorded and the court shall strive to fix the hearing date within the shortest period possible but not more than thirty days.
2. Procedure where no application made on suit adjourned generally
Where, the hearing of a suit has been adjourned generally, the court shall, if no application is made within twelve months of the last adjournment, dismiss the suit.
3. Court may proceed notwithstanding either party failing to produce evidence, etc.
Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.
4. Procedure where no application is made on suit adjourned generally
Where the hearing of a suit has been adjourned generally, the court shall, if no application is made within twelve months of the last adjournment, dismiss the suit.
5. Suit may be struck out if no step taken for three years
In any case, not otherwise provided for in which no application is made or step taken for a period of two years by either party with a view to proceeding with the suit, the court may without notice order the suit to be struck out for want of prosecution, and after such an order has been made shall give notice of the order on the court notice board, but in such case the plaintiff may, subject to the law of limitation, bring a fresh suit.
Order XVIII hearing of suit and examination of witnesses
1. Right to begin
The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
1A. Assessors
Except where both parties agree otherwise, the trial of a suit in the Commercial Division of the High Court shall be with the aid of assessors who shall not be less than two and generally knowledgeable of the field concerning the suit, and shall be selected from a list submitted to the Commercial Divisions by the Commercial Court Users' Committee.
1B. Absence of assessors
Where in the course of the trail one or more of the assessors is absent, the court may proceed and conclude the trial with the remaining assessor or assessors as the case may be.
2. Statement and production of evidence
(1)On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.(2)The other party shall then state his case and produce his evidence (if any) and may then address the court generally on the whole case.(3)The party beginning may then reply generally on the whole case.3. Evidence where there are several issues
Where there are several issues the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and in the latter case, the party beginning may produce evidence and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.
4. Witnesses to be examined in open court
The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the judge or magistrate.
5. How evidence shall be taken
The evidence of each witness shall be taken down in writing, in the language of the court, by or in the presence and under the personal direction and superintendence of the judge or magistrate, not ordinarily in the form of question and answer, but in that of a narrative and the judge or magistrate shall sign the same.
6. Any particular question and answer may be taken down
The Court may, of its own motion or on the application of any party or his advocate, take down any particular question and answer or any objection to any question, if there appears to be any special reason for so doing.
7. Questions objected to and allowed by court
Where any question put to a witness is objected to by a party or his advocate, and the court allows the same to be put, the judge or magistrate shall take down the question, the answer, the objection and the name of the person making it, together with the decision of the court thereon.
8. Remarks on demeanour of witnesses
The court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.
9. Power to direct shorthand record