the civil procedure act - Kenya Law Reports

102[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 12HEARING AND CONSEQUENCE OF NON-ATTENDANCE[Order 12, rule 1.]When neither partyattends.[Order 12, rule 2.]When only plaintiffattends.hearing outside the court, neither party attends, the court may dismiss the suit.(a) that notice of hearing was duly served, it may proceed ex parte;(b) that notice of hearing was not duly served, it shall direct a secondnotice to be served; or(cto attend, it shall postpone the hearing.[Order 12, rule 3.]When only defendantattends.for hearing outside the court, only the defendant attends and he admits no partof the claim, the suit shall be dismissed except for good cause to be recordedby the court.(2) If the defendant admits any part of the claim, the court shall givejudgment against the defendant upon such admission and shall dismiss thesuit so far as it relates to the remainder except for good cause to be recordedby the court.(3) If the defendant has counterclaimed, he may prove his counterclaimso far as the burden of proof lies on him.[Order 12, rule 4.]When some only ofplaintiffs attend.[Order 12, rule 5]When some only ofdefendants attend.[Order 12, rule 6]Effect of dismissal.4. If only some of the plaintiffs attend, the court may either proceed withthe suit or make such other order as may be just.5. If only some of the defendants attend, the court may proceed with thesuit and may give such judgment as is just in respect of the defendants whohave not attended.6. (1) Subject to subrule (2) and to any law of limitation of actions,where a suit is dismissed under this Order the plaintiff may bring a fresh suit.(2) When a suit has been dismissed under rule 3 no fresh suit may bebrought in respect of the same cause of action.[Order 12, rule 7.]Setting asidejudgment ordismissal.7. Where under this Order judgment has been entered or the suit hasbeen dismissed, the court, on application, may set aside or vary the judgmentor order upon such terms as may be just.