the civil procedure act - Kenya Law Reports

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200[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010or an order of certiorari shall, if the judge so directs, operate as a stay of theproceedings in question until the determination of the application, or until thejudge orders otherwise:Provided that where the circumstances so require, the judge may directthat the application be served for hearing inter partes before grant of leave.Provided further that where the circumstances so require the judge may directthat the question of leave and whether grant of leave shall operate as stay maybe heard and determined separately within seven days.[Order 53, rule 2.]Time for applying forcertiorari in certaincases.[Order 53, rule 3.]Application to be bynotice of motion.2. Leave shall not be granted to apply for an order of certiorari to removeany judgment, order, decree, conviction or other proceeding for the purpose of itsbeing quashed, unless the application for leave is made not later than six monthsafter the date of the proceeding or such shorter period as may be prescribed byany Act; and where the proceeding is subject to appeal and a time is limitedby law for the bringing of the appeal, the judge may adjourn the applicationfor leave until the appeal is determined or the time for appealing has expired.3. (1) When leave has been granted to apply for an order of mandamus,prohibition or certiorari, the application shall be made within twenty-one daysby notice of motion to the High Court, and there shall, unless the judge grantingleave has otherwise directed, be at least eight clear days between the service ofthe notice of motion and the day named therein for the hearing.(2) The notice shall be served on all persons directly affected, and where itrelates to any proceedings in or before a court, and the object is either to compelto quash them or any order made therein, the notice of motion shall be serveddate of service on, all persons who have been served with the notice of motionought to be served under the provisions of this rule has not been served, the(4) If on the hearing of the motion the High Court is of the opinion that anyperson who ought to have been served therewith has not been served, whether ornot he is a person who ought to have been served under the foregoing provisionsof this rule, the High Court may adjourn the hearing, in order that the noticemay be served on that person, upon such terms (if any) as the court may direct.[Order 53, rule 4]Statements and4. (1) Copies of the statement accompanying the application foraccompanying the application for leave shall be supplied on demand and nogrounds shall, subject as hereafter in this rule provided, be relied upon or anyrelief sought at the hearing of the motion except the grounds and relief set outin the said statement.(2) The High Court may on the hearing of the motion allow the said
Rev. 2010] Civil Procedure CAP. 21 201application, and where the applicant intends to ask to be allowed to amend hisany proposed amendment of his statement, and shall supply on demand copies[Subsidiary](3) Every party to the proceedings shall supply to any other party, on5. On the hearing of any such motion as aforesaid, the applicant shallhave the right to begin.6. On the hearing of any such motion as aforesaid, any person who desiresto be heard in opposition to the motion and appears to the High Court to be aproper person to be heard shall be heard, notwithstanding that he has not beenserved with the notice or summons, and shall be liable to costs in the discretionof the court if the order should be made.[Order 53, rule 5.]Applicant to haveright to begin.[Order 53, rule 6.]Right to be heard inopposition.7. (1) In the case of an application for an order of certiorari to removeany proceedings for the purpose of their being quashed, the applicant shall notquestion the validity of any order, warrant, commitment, conviction, inquisitionor record, unless before the hearing of the motion he has lodged a copy thereofsatisfaction of the High Court.(2) Where an order of certiorari is made in any such case as aforesaid,the order shall direct that the proceedings shall be quashed forthwith on theirremoval into the High Court.ORDER 54[Order 53, rule 7.]Provisions as toorders of certiorarifor the purposeof quashingproceedings.REVOCATION AND TRANSITIONAL PROVISIONS1. The Civil Procedure Rules are revoked.2. In all proceedings pending whether preparatory or incidental to, orconsequential upon any proceedings in court at the time of the coming into forceof these rules, the provisions of these rules shall thereafter apply, but withoutprejudice to the validity of anything previously done:[Order 54 Rule 1.]Revocation of CivilProcedure Rules.Sub. leg.Order 54 Rule 2.]Transitionalprovisions.Provided that:(a) If, and in so far as it is impracticable in any such proceedings toapply the provisions of these Rules, the practice and procedureheretofore obtaining shall be followed;(b practice notes or directions as to the procedure to be adopted.
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