the civil procedure act - Kenya Law Reports

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142CAP. 21 Civil Procedure [Rev. 2010[Subsidiary]ORDER 24DEATH AND BANKRUPTCY OF PARTIES[Order 24, rule 1.]No abatement byparty’s death if rightsurvives.[Order 24, rule 2.]Procedure where oneof several plaintiffsor defendants diesand right to suesurvives.[Order 24, rule 3].]Procedure in caseof death of one ofseveral plaintiffs orof sole plaintiff.1. The death of a plaintiff or defendant shall not cause the suit to abateif the cause of action survives or continues.2. Where there are more plaintiffs or defendants than one, and any one ofthem dies, and where the cause of action survives or continues to the survivingplaintiff or plaintiffs alone or against the surviving defendant or defendantsalone, the court shall cause an entry to that effect to be made on the record,and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs,or against the surviving defendant or defendants.3. (1) Where one of two or more plaintiffs dies and the cause of actiondoes not survive or continue to the surviving plaintiff or plaintiffs alone, or asole plaintiff or sole surviving plaintiff dies and the cause of action survives orcontinues, the court, on an application made in that behalf, shall cause the legalrepresentative of the deceased plaintiff to be made a party and shall proceedwith the suit.(2) Where within one year no application is made under subrule (1),the suit shall abate so far as the deceased plaintiff is concerned, and, on theapplication of the defendant, the court may award to him the costs which hemay have incurred in defending the suit to be recovered from the estate of thedeceased plaintiff:Provided the court may, for good reason on application, extend the time.[Order 24, rule 4.]Procedure in caseof death of one ofseveral defendants orof sole defendant.4. (1) Where one of two or more defendants dies and the cause of actiondoes not survive or continue against the surviving defendant or defendantsalone, or a sole defendant or sole surviving defendant dies and the cause ofaction survives or continues, the court, on an application made in that behalf,shall cause the legal representative of the deceased defendant to be made a partyand shall proceed with the suit.(2) Any person so made a party may make any defence appropriate tohis character as legal representative of the deceased defendant.(3) Where within one year no application is made under subrule (1), thesuit shall abate as against the deceased defendant.[Order 24, rule 5.]Determination ofquestion as to legalrepresentative.[Order 24, rule 6.]5. Where a question arises as to whether any person is or is not the legalrepresentative of a deceased plaintiff, or a deceased defendant, such questionshall be determined by the court.
Rev. 2010] Civil Procedure CAP. 21 143(unless for any special reason the court otherwise directs) to give security forthe costs thereof within such time as the court may direct.the suit, and to give such security within the time so ordered, the defendant mayapply for the dismissal of the suit on the ground of the plaintiff’s bankruptcy, andthe court may make an order dismissing the suit and awarding to the defendantthe costs which he has incurred in defending the same to be proved as a debtagainst the plaintiff’s estate.7. (1) Where a suit abates or is dismissed under this Order, no fresh suitshall be brought on the same cause of action.(2) The plaintiff or the person claiming to be the legal representative ofplaintiff may apply for an order to revive a suit which has abated or to set asidecause from continuing the suit, the court shall revive the suit or set aside such[Subsidiary]When plaintiff’sbankruptcy bars suit.[Order 24, rule 7.]Effect of abatementor dismissal.8. (1) In other cases of an assignment, creation, or devolution of anyinterest during the pendency of a suit, the suit may, by leave of the court, becontinued by or against the person to or upon whom such interest has comeor devolved.[Order 24, rule 8.]Procedure in case ofassignment before(2) The attachment of a decree pending an appeal therefrom shall bedeemed to be an interest entitling the person who procured such attachment to9. In the application of this Order to appeals, so far as may be, the[Order 24, rule 9.]Application of Orderto appeals.10. Nothing in rules 3, 4 and7 shall apply to proceedings in executionof a decree or order.ORDER 25[Order 24, rule 10.]Application ofOrder to executionproceedings.WITHDRAWAL, DISCONTINUANCE AND ADJUSTMENT OF SUITS1. At any time before the setting down of the suit for hearing the plaintiffmay by notice in writing, which shall be served on all parties, wholly discontinuehis suit against all or any of the defendants or may withdraw any part of hisclaim, and such discontinuance or withdrawal shall not be a defence to anysubsequent action.[Order 25, rule 1.]Withdrawal byplaintiff.2. (1) Where a suit has been set down for hearing it may be discontinued,[Order 25, rule 2.]Discontinuance.
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the civil procedure act - Kenya Law Reports

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