the civil procedure act - Kenya Law Reports

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166[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 37ORIGINATING SUMMONS[Order 37, rule 1.]Who may take outoriginating summonsand in respect ofwhat matters.1. The executors or administrators of a deceased person, or any of them,and the trustees under any deed or instrument, or any of them, and any personclaiming to be interested in the relief sought as creditor, devisee, legatee, heir,or legal representative of a deceased person, or as cestui que trust under theterms of any deed or instrument, or as claiming by assignment, or otherwise,under any such creditor or other person as aforesaid, may take out as of course,an originating summons, returnable before a judge sitting in chambers for suchcircumstances of the case may require, that is to say, the determination, withoutthe administration of the estate or trust, of any of the following questions-(a) any question affecting the rights or interest of the person claimingto be creditor, devisee, legatee, heir or cestui que trust;(b) the ascertainment of any class of creditors, devisees, legatees,heirs, or others;(c) the furnishing of any particular accounts by the executors,administrators or trustees, and the vouching, when necessary, ofsuch accounts;(d) the payment into court of any money in the hands of the executors,administrators or trustees;(e) directing the executors, administrators or trustees to do, or abstainfrom doing, any particular act in their character as executors,administrators or trustees;(f) the approval of a sale, purchase, compromise or other transaction;(g) the determination of any question arising directly out of theadministration of the estate or trust.[Order 37, rule 2.]Order foradministration ofestate or trust.2. Any of the persons named in rule 1 may in like manner apply for andobtain an order for—(a) the administration of the personal estate of the deceased;(b) the administration of the real estate of the deceased;(c) the administration of the trust.[Order 37, rule 3.]Summons by vendoror purchaser of land.3. A vendor or purchaser of immovable property or their representativesrespectively may, at any time or times, take out an originating summonsreturnable before the judge sitting in chambers, for the determination of anyquestion which may arise in respect of any requisitions or objections, or anyclaim for compensation; or any other question arising out of or connected with
Rev. 2010] Civil Procedure CAP. 21 167the contract of sale (not being a question affecting the existence or validity ofthe contract).[Subsidiary]4. Any mortgagee or mortgagor, whether legal or equitable, or any personentitled to or having property subject to a legal or equitable charge, or any personhaving the right to foreclose or redeem any mortgage, whether legal or equitable,may take out as of course an originating summons, returnable before the judgein chambers, for such relief of the nature or kind following as may be by theto say, sale, foreclosure, delivery of possession by the mortgagor, redemption,reconveyance, delivery of possession by the mortgagee.[Order 37, rule 4.]Summons bya mortgagee,mortgagor andothers.5. An application under section 116 of the Government Lands Act orsection 57 of the Registration of Titles Act shall be made by originating summonsunless there is pending a suit involving the same lands when the applicationmay be made by summons in that suit.6. (1) An application under section 27 of the Limitation of Actionsex parte by originating summons[Order 37, rule 5.]Caveats.Cap. 280 and Cap.281.[Order 37, rule 6.]Extension oflimitation period.exparte in that suit.7. (1) An application under section 38 of the Limitation of Actions Actshall be made by originating summons.[Order 37, rule 7.]Adverse possession.extract of the title to the land in question has been annexed.(3) The court shall direct on whom and in what manner the summonsshall be served.8. An application under the Registered Land Act other than under sections120, 128, 133, 138, 143 and 150 thereof shall be made by originating summonsunless there is pending a suit involving the same lands when the applicationmay be made in that suit.[Order 37, rule 8.]Application under theRegistered Land Act.Cap. 300.9. An application under section 9 of the Chattels Transfer Act shall bemade by originating summons ex partethe grounds relied upon.10. When the existence of a partnership, or the right to a partnership,or his representatives may take out an originating summons returnable beforethe judge sitting in chambers against his partners or former partners or theirrepresentatives (if any) for the purpose of having the partnership dissolved (ifit be still subsisting) and for the purpose of taking the accounts of and windingup such partnership.[Order 38, rule 9.]Application underChattels Transfer Act.Cap. 28.[Order 37, rule 10.]Summons bya member of apartnership.
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