the civil procedure act - Kenya Law Reports

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168[Subsidiary][Order 37, rule 11.]Summons by personsinterested in deedsor wills.[Order 37, rule 12.]Variation of trusts.[Order 37, rule 13.]Discretion uponsummons forconstruction ofdocument.[Order 37, rule 14.]Forms.[Order 37, rule 15.]and registered.[Order 37, rule 16.]Directions.[Order 37, rule 17.]Procedure.[Order 37, rule 18.]Evidence anddirections uponhearing of summons.[Order 37, rule 19.]Powers of court uponhearing of summons.CAP. 21 Civil Procedure [Rev. 201011. Any person claiming to be interested under a deed, will, or otherwritten instrument, may apply in chambers by originating summons for thedetermination of any question of construction arising under the instrument,and for a declaration of the rights of the person interested.12. An application for an order under the Trustee Act shall be made byoriginating summons returnable before the judge sitting in chambers; and thesettler and any other person who provided property for the purposes of the trustsin question shall, if still alive and not an applicant and unless a judge for specialreasons otherwise directs, be made a respondent to summons in addition to anyother persons who are necessary and proper respondents thereto.13. The judge shall not be bound to determine any such question ofconstruction if, in his opinion, it ought not to be determined on originatingsummons.14. An originating summons shall be in Form No. 26 or No. 27 ofAppendix A with such variations as circumstances may require, and shall bewhere necessary shall be effected in accordance with Order 5.Summons and with notice to the parties list it for directions before a judge inchambers.17. The day and hour of attendance under an originating summons tofor hearing in chambers of the judge to whom such summons is assigned.18. At the time of directions, if the parties do not agree to the correctnessmay order the summons to be supported by such further evidence as he maydeem necessary, and may give such directions as he may think just for the trialof any issues arising thereupon, and may make any amendments necessary tomake the summons accord with existing facts, and to raise the matters in issuebetween the parties.19. (1) Where, on an originating summons under this Order, it appearsto the court at any stage of the proceedings that the proceedings should formay order the proceedings to continue as if the cause had been so begun andor without liberty to any of the parties to add to, or to apply for particulars of,
Rev. 2010] Civil Procedure CAP. 21 169(2) Where the court makes an order under subrule (1), Order 11 shallapply.[Subsidiary](3) This rule applies notwithstanding that the cause could not have been(4) Any reference in these Rules to proceedings begun by a plaint shall,unless the context otherwise requires, be construed as including a reference toa cause proceeding under an order made under subrule (1).20. If an originating summons is adjourned into court, the judge may, ifthe costs be taxed on the scale applicable to suits. In all other cases the judgemay make such orders as to the costs of the parties as he considers just.[Order 37, rule 20.]Court may makeorders as to costsincurred by any party.ORDER 38SELECTION OF TEST SUIT1. Where two or more persons have instituted suits against the samedefendant and such persons under rule 1 of Order I could have been joined asco-plaintiffs in one suit, upon the application of any of the parties with noticeeach suit are precisely similar, make an order directing that one of the suits betried as a test case, and staying all steps in the other suits until the selected suitshall have been determined, or shall have failed to be a real trial of the issues.2. Where a plaintiff has instituted two or more suits, and under rule 3 ofOrder 1 the several dependants could properly have been joined as co-defendantsissues to be tried in the suit to which he is a party are precisely similar to theissues to be determined in another of such suits, may order that the suit towhich such defendant is a party be stayed until such other suit shall have beendetermined or shall have failed to be a real trial of the issues.[Order 38, rule 1.]Staying several suitsagainst the samedefendant.[Order 38, rule 2.]Staying similar suitsupon application bydefendant.ORDER 39ARREST AND ATTACHMENT BEFORE JUDGMENT1. Where at any stage of a suit, other than a suit of the nature referredto in paragraphs (a) to (d(a) that the defendant with intent to delay the plaintiff, or to avoid anyprocess of the court, or to obstruct or delay the execution of anydecree that may be passed against him—(i) has absconded or left the local limits of the jurisdiction of thecourt; or[Order 39, rule 1.]Where defendantmay be called uponto furnish security forappearance.
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