the civil procedure act - Kenya Law Reports

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180CAP. 21 Civil Procedure [Rev. 2010[Subsidiary](2) The court shall then, if it does not dismiss the appeal at once, hear therespondent against the appeal, and in such case the appellant shall be entitledto reply.[Order 42, rule 20.]Dismissal of appealfor appellant’sdefault.may be adjourned, the appellant does not appear when the appeal is called onan order that the appeal be dismissed.(2) Where the appellant appears, and the respondent does not appear andex parte.[Order 42, rule 21.]Re-admission ofappeal dismissed fordefault.[Order 42, rule 22.]Power to adjournhearing and directinterestedpersonstobe made respondents.[Order 42, rule 23.]Re-hearing onapplication ofrespondent againstwhom ex partedecree made.[Order 42, rule 24.]Remand of cases.[Order 42, rule 25.]Where evidence onappellate court maydetermine case[Order 42, rule 26.]Power to order new21. Where an appeal is dismissed under rule 20, the appellant may applyto the court to which such appeal is preferred for the re- admission of the appeal;appearing when the appeal was called on for hearing, the court shall re-admit22. Where it appears to the court at the hearing that any person whowas a party to the suit in the court from whose decree the appeal is preferred,but who has not been made a party to the appeal, is interested in the result ofcourt and direct that such person be made a respondent.23. Where an appeal is heard ex parte and judgment is pronounced againstthe respondent, he may apply to the court to which the appeal is preferred to re-was called on for hearing, the court shall re-hear the appeal on such terms as24. Where the court from whose decree an appeal is preferred hasdisposed of the suit upon a preliminary point, and the decree is reversed onremand the case, and may further direct what issue or issues shall be tried inthe case so remanded, and shall send a copy of its judgment and order to thecourt from whose decree the appeal is preferred, with directions to re-admitthe suit under its original number in the register of civil suits, and proceed todetermine the suit; and the evidence, if any, recorded during the original trialshall, subject to all just exceptions, be evidence during the trial after remand.to which the appeal is preferred to pronounce judgment, the court to which thethe suit, notwithstanding that the judgment of the court from whose decree theappeal is preferred has proceeded wholly upon some ground other than that onwhich the court to which the appeal is preferred proceeds.26. If upon the hearing of an appeal it shall appear to the court to whichthe appeal is preferred that a new trial ought to be had, it shall be lawful for
Rev. 2010] Civil Procedure CAP. 21 181be set aside, and that a new trial shall be had.trial.[Subsidiary]27. (1) The parties to an appeal shall not be entitled to produce additionalevidence, whether oral or documentary, in the court to which the appeal ispreferred; but if—(a) the court from whose decree the appeal is preferred has refused toadmit evidence which ought to have been admitted; or[Order 42, rule 27.]Production ofadditional evidencein appellate court.(b) the court to which the appeal is preferred requires any document tobe produced or any witness to be examined to enable it to pronouncejudgment, or for any other substantial cause,the court to which the appeal is preferred may allow such evidence or documentto be produced, or witness to be examined.(2) Wherever additional evidence is allowed to be produced by thecourt to which the appeal is preferred the court shall record the reason for itsadmission.28. Wherever additional evidence is allowed to be produced, the court towhich the appeal is preferred may either take such evidence or direct the courtfrom whose decree the appeal is preferred or any other subordinate court totake such evidence and to send it when taken to the court to which the appealis preferred.29. Where additional evidence is directed or allowed to be taken the courtto which the appeal is preferred shall specify the limits to which the evidence is30. Where the court consists of more than one judge, the decree of thefrom which the appeal is preferred, or, if the parties to the appeal agree as tothe form which the decree in appeal shall take, or as to the order to be made inappeal, the court to which the appeal is preferred may pass a decree or makean order accordingly.[Order 42, rule 28.]Mode of takingadditional evidence.[Order 42, rule 29.]and recorded.[Order 42, rule 30.]Where court consistof more than onejudge.[Order 42, rule 31.]What judgment maydirect.32. The court to which the appeal is preferred shall have power to passany decree and make any order which ought to have been passed or made andto pass or make such further or other decree or order as the case may require,and this power may be exercised by the court notwithstanding that the appealis as to part only of the decree and may be exercised in favour of all or any ofcross-appeal.[Order 42, rule 32.]Power of appellatecourt on appeal.33. The decree of the court to which the appeal is preferred shall be[Order 42, rule 33.]
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