the civil procedure act - Kenya Law Reports

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148[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010shall have been issued.ORDER 28COMMISSION AND REFERENCES[Order 28, rule 1.]Cases in whichcourt may issuecommission toexamine witnesses.[Order 28, rule 2.]Where witnessresides withincourt’s jurisdiction.[Order 28, rule 3.]Persons for whoseexaminationcommission mayissue.1. Any court may in any suit issue a commission for the examinationon interrogatories or otherwise of any person resident within the limits of itsjurisdiction who is exempted under the Act from attending the court or who is2. A commission for the examination of a person who resides within thelocal limits of the jurisdiction of the court issuing the same may be issued toof—3. (1) Any court may in any suit issue a commission for the examination(a) any person resident beyond the local limits of its jurisdiction;(b) any person who is about to leave such limits before the date onwhich he is required to be examined in court; or(copinion of the court attend without detriment to the public service.[Order 28, rule 4]Request to examinewitness abroad.[Order 28, rule 5.]Court to examinewitness pursuant tocommission.[Order 28, rule 6.]Return ofcommission withdeposition of witness.[Order 28, rule 7.]Commissions tomake investigations.4. Where any court to which application is made for the issue of asuch commission or a letter of request.any person shall examine him or cause him to be examined pursuant thereto.6. Where a commission has been duly executed, it shall be returned,together with the evidence taken under it, to the court from which it wasissued, unless the order for issuing the commission has otherwise directed, inwhich case the commission shall be returned in terms of such order; and thecommission and the return thereto and the evidence taken under it shall formpart of the record of the suit.7. On the application of any party or of its own motion in any suit, thecourt may issue a commission to any person to make an investigation and reportto the court for the purpose of ascertaining-(a) any matter in dispute in the suit, whether or not the matter issubstantially the whole matter in dispute between the parties; or
Rev. 2010] Civil Procedure CAP. 21 149(b) the value of any property or the extent of any damage thereto, or[Subsidiary]8. (1) The commissioner, after such local inspection as he deemsnecessary and after reducing to writing the evidence taken by him, shall returnsuch evidence, together with his report in writing signed by him, to the court.[Order 28, rule 8.]Procedure ofcommissioner.(2) The report of the commissioner and the evidence taken by him (butnot the evidence without the report) shall be evidence in the suit and shallform part of the record; but the court, or, with the permission of the court, anyof the parties to the suit, may examine the commissioner personally in opencourt touching any of the matters referred to him or mentioned in his report,or as to his report, or as to the manner in which he has made the investigation.of the commissioner, it may direct such further inquiry to be made as it shall9. On the application of any party or of its own motion in any suit inwhich the examination of accounts is necessary or desirable, the court may refer10. (1) The court shall furnish a referee appointed under rule 9 withsuch part of the proceedings and such instructions as appear necessary, and theinstructions shall distinctly specify whether the referee is merely to transmitthe proceedings which he may hold on the inquiry, or also to report his ownopinion on the point referred for his examination.[Order 28, rule 9.]Examination ofaccounts by referee.[Order 28, rule 10.]Instructions toreferee.(2) The proceedings and report (if any) of the referee shall be evidence11. Where a preliminary decree for partition has been passed, the courtaccording to the rights as declared in such decree.[Order 28, rule 11.]Partition ofimmovable property.12. (1) The person appointed shall, after such inquiry as may be necessary,divide the property into as many shares as may be directed by the order underwhich he was appointed, and shall allot such shares to the parties, and may, ifauthorised thereto by the said order, award sums to be paid for the purpose ofequalising the value of the shares.[Order 28, rule 12.]Procedure uponpartition.(2) He shall then prepare and sign a report, or, where more than oneperson was appointed, and they cannot agree, they shall prepare and sign separatereports, appointing the share of each party and distinguishing each share (ifso directed by the said order) by measurements and boundaries. Such reportor reports shall be annexed to the appointments, and transmitted to the court;and the court, after hearing any objections which the parties may make to the
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