the civil procedure act - Kenya Law Reports

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88[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(3) When a corporation appears without an advocate the memorandumof appearance shall state the addresses for service which may be either thepostal address.[Order 6, rule 4.]Irregularmemorandum,[Order 6, rule 5.]Defendants appearingby same advocate.[Order 6, rule 6.]Delivery ofdocuments to addressfor service.4. If the memorandum of appearance does not contain an address for5. If two or more defendants appear in the same suit by the same advocateand at the same time, the names of all the defendants so appearing shall beinserted in the same memorandum of appearance.6. (1) Documents may either be delivered by hand or by licensed courierservice provider approved by the court to the address for service or may beposted to it.ORDER 7DEFENCE AND COUNTERCLAIM[Order 7, rule1.]Defence.[Order 7, rule2.]Defence of tender.[Order 7, rule 3.]Set-off andcounterclaim.[Order 7, rule 4.]Set-off or1. Where a defendant has been served with a summons to appear hewithin fourteen days after he has entered an appearance in the suit and serve2. Where in any suit a defence of tender before action is pleaded thedefendant shall pay into court, in accordance with Order 27, the amount allegedto have been tendered, and the tender shall not be available as a defence unlessand until payment into court has been made.3. A defendant in a suit may set-off, or set-up by way of counterclaimagainst the claims of the plaintiff, any right or claim, whether such set-off orcounterclaim sound in damages or not, and whether it is for a liquidated orunliquidated amount, and such set-off or counterclaim shall have the samethe same suit, both on the original and on the cross-claim; but the Court mayon the application of the plaintiff before trial, if in the opinion of the court suchset-off or counterclaim cannot be conveniently disposed of in the pending suit, orought not to be allowed, refuse permission to defendant to avail himself thereof.4. Notwithstanding anything contained in rule 2, a person shall not beentitled to avail himself of any set-off or counterclaim in any proceedings
Rev. 2010] Civil Procedure CAP. 21 89by the Government for the recovery of taxes, duties or penalties, or to availhimself in proceedings by the Government of any other nature of any set-offor counterclaim arising out of a right or claim to repayment in respect of anytaxes, duties or penalties. accompanied by—(a[Subsidiary]counterclaim inproceedings byGovernment.[Order 7, rule 5.]Documents toaccompany defenceor counter-claim.(b) a list of witnesses to be called at the trial;(c) written statements signed by the witnesses except expert witnesses;and(d) copies of documents to be relied on at the trial.Provided that statements under sub-rule (c) may with leave of the court6. If either party wishes to deny the right of any other party to claimas executor or as trustee whether in bankruptcy or otherwise, or in anyrepresentative or other alleged capacity or the alleged constitution of any[Order 7, rule 6.]Persons inrepresentativecapacity.7. Where any defendant seeks to rely upon any grounds as supportingthat he does so by way of counterclaim.[Order 7, rule7.] Pleading acounterclaim.8. Where a defendant by his defence sets up any counterclaim which raisesquestions between himself and the plaintiff, together with any other person orpersons, he shall add to the title of his defence a further title similar to the titlein a plaint, setting forth the names of all persons who, if such counterclaim wereto be enforced by cross-action, would be defendants to such cross-action, andshall deliver to the court his defence for service on such of them as are partiesto the action together with his defence for service on the plaintiff within the9. Where any such person as is mentioned in rule 8 is not a party tothe suit, he shall be summoned to appear by being served with a copy of thedefence, which shall be served in accordance with the rules for regulatingservice of summons.10. Any person not already a party to the suit who is served with a defenceand counterclaim as aforesaid must appear thereto as if he had been served witha summons to appear in the suit.[Order 7, rule 8.]Title of counterclaim.[Order 7, rule 9.]Claim againstperson not party.[Order 7, rule 10.]Appearance by addedparties.11. Any person named in a defence as a party to a counterclaim therebymade may, unless some other or further order is made by the court, deliver aserve a copy thereof on all parties to the suit.[Order 7, rule 11.]Reply tocounterclaim.
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