the civil procedure act - Kenya Law Reports

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184[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010ORDER 44PAUPER APPEALS[Order 44, rule 1.]Who may appeal as apauper.1. Any person entitled to prefer an appeal, who is unable to pay thefee required for the memorandum of appeal, may present an applicationaccompanied by a memorandum of appeal, and may be allowed to appeal as apauper, subject in all matters, including the presentation of such application,to the provisions relating to suits by paupers in so far as those provisions areapplicable:Provided that the court shall dismiss the application unless upon a perusalof the memorandum of appeal and of the record of the lower court, it sees reasonto think that the decree is contrary to law, or against the weight of the evidence.[Order 44, rule 2.]Inquiry intopauperism.2. The inquiry into the pauperism of the applicant may be made either bythe High Court or under the orders of the High Court by the court from whosedecision the appeal is preferred:Provided that, if the applicant was allowed to sue or appeal as a pauperin the court from whose decree the appeal is preferred, no further inquiry inrespect of his pauperism shall be necessary, unless the High Court sees causeto direct such inquiry.ORDER 45REVIEW[Order 45, rule 1.]Application forreview of decree ororder.1. (1) Any person considering himself aggrieved—(a) by a decree or order from which an appeal is allowed, but fromwhich no appeal has been preferred; or(b) by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which,after the exercise of due diligence, was not within his knowledge or could notbe produced by him at the time when the decree was passed or the order made,or on account of some mistake or error apparent on the face of the record, ormay apply for a review of judgment to the court which passed the decree ormade the order without unreasonable delay.(2) A party who is not appealing from a decree or order may apply for areview of judgment notwithstanding the pendency of an appeal by some otherparty except where the ground of such appeal is common to the applicant andthe appellant, or when, being respondent, he can present to the appellate courtthe case on which he applies for the review.[Order 45, rule 2.]2. (1) An application for review of a decree or order of a court, upon some
Rev. 2010] Civil Procedure CAP. 21 185ground other than the discovery of such new and important matter or evidenceas is referred to in rule 1, or the existence of a clerical or arithmetical mistakeor error apparent on the face of the decree, shall be made only to the judge whopassed the decree, or made the order sought to be reviewed.[Subsidiary]To whomapplications forreview may be made.(2) If the judge who passed the decree or made the order is no longerattached to the court, the application may be heard by any other judge who isattached to that court at the time the application comes for hearing.(3) If the judge who passed the decree or made the order is still attachedto the court but is precluded by absence or other cause for a period of 3 monthsnext after the application for review is lodged, the application may be heard bysuch other judge as the Chief Justice may designate.a review, it shall dismiss the application.(2) Where the court is of opinion that the application for review shouldbe granted, it shall grant the same:[Order 45, rule 3.]When court maygrant or rejectapplication.Provided that no such application shall be granted on the ground ofdiscovery of new matter or evidence which the applicant alleges was not withinhis knowledge, or could not be adduced by him when the decree or order waspassed or made without strict proof of such allegation.4. (1) Where the application for a review is heard by more than one judgeand the court is equally divided the application shall be dismissed.(2) Where there is a majority, the decision shall be according to theopinion of the majority.5. When an application for review is granted, a note thereof shall bemade in the register, and the court may at once re-hear the case or make such6. No application to review an order made on an application for a reviewof a decree or order passed or made on a review shall be entertained.[Order 45, rule 4.]Application wheremore than one judgehears.[Order 45, rule 5.]Re-hearing uponapplication granted.[Order 45, rule 6.]Bar of subsequentapplications.ORDER 46ARBITRATION UNDER ORDER OF A COURTANDOTHER ALTERNATIVE DISPUTE RESOLUTION1. Where in any suit all the parties interested who are not under disabilityagree that any matter in difference between them in such suit shall be referredto arbitration, they may, at any time before judgment is pronounced, apply tothe court for an order of reference.2. The arbitrator shall be appointed in such manner as may be agreed[Order 46, rule 1.]Parties to a suit mayapply for arbitration.(Order 46, rule 2.]
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