the civil procedure act - Kenya Law Reports

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176[Subsidiary][Order 42, rule 2.]Filing of decree ororder.[Order 42, rule 3.]Amendment ofmemorandum ofappeal.[Order 42, rule 4.]Grounds which maybe taken in appeal.CAP. 21 Civil Procedure [Rev. 2010heads the grounds of objection to the decree or order appealed against, withoutany argument or narrative, and such grounds shall be numbered consecutively.as soon as possible and in any event within such time as the court may order,and the court need not consider whether to reject the appeal summarily under3. (1) The appellant may amend his memorandum of appeal without leaveat any time before the court gives directions under rule 13.(2) After the time limited by subrule (1) the court may, on application,permit the appellant to amend his memorandum of appeal.4. The appellant shall not, except with leave of the court, urge or beheard in support of any ground of objection not set forth in the memorandumthe grounds of objection set forth in the memorandum of appeal or taken byleave of the court under this rule:Provided that the High Court shall not rest its decision on any other opportunity of contesting the case on that ground.[Order 42, rule 5.]One of severalplaintiffs ordefendants mayobtain reversal ofwhole decree whereit proceeds on groundcommon to all.[Order 42, rule 6.]Stay in case ofappeal.5. Where there is more than one plaintiffs or defendants than one in asuit, and the decree appealed from proceeds on any ground common to all theplaintiffs or to all the defendants, any one of the plaintiffs or of the defendantsmay appeal from the whole decree, and thereupon the High Court may reverse orvary the decree in favour of all the plaintiffs or defendants, as the case may be.6.(1) No appeal or second appeal shall operate as a stay of execution orproceedings under a decree or order appealed from except in so far as the courtorder stay of execution of such decree or order, and whether the application forsuch stay shall have been granted or refused by the court appealed from, thecourt to which such appeal is preferred shall be at liberty, on application beingmade, to consider such application and to make such order thereon as may toit seem just, and any person aggrieved by an order of stay made by the courtfrom whose decision the appeal is preferred may apply to the appellate courtto have such order set aside.(2) No order for stay of execution shall be made under subrule (1)unless—(aunless the order is made and that the application has been madewithout unreasonable delay; and
Rev. 2010] Civil Procedure CAP. 21 177(b) such security as the court orders for the due performance of suchdecree or order as may ultimately be binding on him has been givenby the applicant.(3) Notwithstanding anything contained in subrule (2), the court shallhave power, without formal application made, to order upon such terms as it(4) For the purposes of this rule an appeal to the Court of Appeal shallappeal has been given.(5) An application for stay of execution may be made informallyimmediately following the delivery of judgment or ruling.(6) Notwithstanding anything contained in subrule (1) of this rule theHigh Court shall have power in the exercise of its appellate jurisdiction to granta temporary injunction on such terms as it thinks just provided the procedure forinstituting an appeal from a subordinate court or tribunal has been complied with.7. (1) Where an order is made for the execution of a decree from whichan appeal is pending, the court which passed the decree or the court to whichby the appellant, require security to be taken for the restitution of any propertywhich may be or has been taken in execution of the decree or for the paymentof the value of such property and for the due performance of the decree or orderof the court from whose decree or order such appeal shall have been brought.(2) Where an order has been made for the sale of immovable propertyin execution of a decree and an appeal is pending from such decree, the saleshall, on the application of the judgment-debtor to the court which made theorder, or to any court to which such appeal or second appeal shall have beenmade, be stayed on such terms as to giving security or otherwise as the court8. No such security as is mentioned in rules 6 and 7 shall be requiredfrom the Government or where the Government has undertaken the defence of[Subsidiary][Order 42, rule 7.]Security in case oforder for executionof decree appealedfrom.[Order 42, rule 8.]No security to berequired from theGovernment.9. The powers conferred by rules 6 and 7 shall be exercisable wherean appeal may be or has been preferred not from the decree but from an ordermade in execution of such decree.[Order 42, rule 9.]Exercise of powersin appeal from ordermade in execution ofdecree.10. (1) A register of appeals, to be called the register of appeals, shallappeal shall be entered in such register and all appeals shall be numbered in[Order 42, rule 10.]of appeals.
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