the civil procedure act - Kenya Law Reports

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110[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 18HEARING OF SUIT AND EXAMINATION OF WITNESSES[Order 18, rule 1.]Right to begin.[Order 18, rule 2.]Statement andproduction ofevidence.1.The plaintiff shall have the right to begin unless the court otherwiseorders.2. Unless the court otherwise orders—which the hearing is adjourned, the party having the right to begin shall statehis case and produce his evidence in support of the issues which he is boundto prove.(2) The other party shall then state his case and produce his evidence,and may then address the court generally on the case. The party beginningmay then reply.(3) After the party beginning has produced his evidence then, if the otherparty has not produced and announces that he does not propose to produceevidence, the party beginning shall have the right to address the court generallyon the case; the other party shall then have the right to address the court in reply,but if in the course of his address he cites a case or cases the party beginningshall have the right to address the court at the conclusion of the address of theother party for the purpose of observing on the case or cases cited.(4) The court may in its discretion limit the time allowed for addressesby the parties or their advocates.[Order 18, rule 3.]Witnesses to beexamined in opencourt.[Order 18, rule 4.]How evidence to berecorded.3. The evidence of the witnesses in attendance shall be taken orallyin open court in the presence of and under the personal direction andsuperintendence of the judge.4. The evidence of each witness shall be taken down in writing by or inthe presence and under the personal direction and superintendence of the judge,not ordinarily in the form of question and answer but in that of a narrative, andwhen completed shall be signed by the judge:Provided that—(i) the court may use such recording processes and technology asmay from time to time be approved;(ii) the transcript of such evidence when checked and approved by[Order 18, rule 5.]Any particularquestion and answermay be taken down.5. The court may, of its own motion or on the application of any party orhis advocate, take down any particular question and answer, or any objection toany question, if there appears to be any special reason for so doing.
Rev. 2010] Civil Procedure CAP. 21 1116. Where any question put to a witness is objected to by a party or hisadvocate, and the court allows the same to be put, the judge shall take downthe question, the answer, the objection, and the name of the person making it.7. The court may record such remarks as it thinks material respectingthe demeanour of any witness while under examination.8. (1) Where a judge is prevented by death, transfer, or other cause fromconcluding the trial of a suit or the hearing of any application, his successormay deal with any evidence taken down under the foregoing rules as if suchevidence had been taken down by him or under his direction under the saidrules, and may proceed with the suit or application from the stage at which hispredecessor left it.[Subsidiary][Order 18, rule 6.]Questions objected toand allowed by court.[Order 18, rule 7.]Remarks ondemeanour ofwitness.[Order 18, rule 8.]Power to deal withevidence taken beforeanother judge.(2) The provisions of subrule (1) shall, so far as they are applicable,be deemed to apply to evidence taken in a suit transferred under section 18of the Act.9. (1) Where a witness is about to leave the jurisdiction of the court, orshould be taken immediately, the court may, upon the application of any partyor of the witness, at any time after institution of the suit, take the evidence ofsuch witness in the manner hereinbefore provided.(2) Where such evidence is not taken forthwith and in the presence ofexamination, shall be given to the parties.(3) The evidence so taken shall be signed by the judge and shall beevidence in the suit.[Order 18, rule 9.]Power to examinewitness immediately.10. The court may at any stage of the suit recall any witness who hasbeen examined, and may, subject to the law of evidence for the time being in11. The court may at any stage of a suit inspect any property or thingconcerning which any question may arise.[Order 18, rule 10.]Court may recall andexamine witness.[Order 18, rule 11].Power of court toinspect.ORDER 19AFFIDAVITSmay be read at the hearing, on such conditions as the court thinks reasonable:Provided that, where it appears to the court that either party desires the production of a witness for cross-examination and that such witness[Order 19, rule 1.]Power to order anypoint to be proved by
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