the civil procedure act - Kenya Law Reports

Rev. 2010] Civil Procedure CAP. 21 97(3) Any order made under this rule shall not affect the rights of theadvocate and the party as between themselves.[Subsidiary]ORDER 10CONSEQUENCE OF NON-APPEARANCE, DEFAULT OF DEFENCE ANDFAILURE TO SERVE1. (1) Where no appearance has been entered for a defendant who is aninfant or person of unsound mind, before proceeding further the plaintiff shallapply to the court for an order that some proper person be assigned guardianof such defendant by whom he may appear and defend the suit.[Order 10, rule 1.]Suits against infantsand persons ofunsound mind.(2) No order may be made under sub-rule (1) unless the summons hasbeen served and Order 32 rule 3 (4) has been complied with, unless the courtotherwise orders.2. Where any defendant fails to appear and the plaintiff wishes to proceedunless the summons has been served by a process-server appointed by the court.3. Where a defendant fails to serve either the memorandum of appearanceor defence within the prescribed time, the court may on its own motion oron application by the plaintiff, strike out the memorandum of appearancecircumstances.4. (1) Where the plaint makes a liquidated demand only and the defendantfail so to appear, the court shall, on request in Form No. 13 of Appendix A, enterjudgment against the defendant or defendants for any sum not exceeding thesuch rate as the court thinks reasonable, to the date of the judgment, and costs.(2) Where the plaint makes a liquidated demand together with some otherclaim, and the defendant fails, or all the defendants fail, to appear as aforesaid,the Court shall, on request in Form No. 13 of Appendix A, enter judgment forthe liquidated demand and interest thereon as provided by sub-rule (1) but theaward of costs shall await judgment upon such other claim.[Order 10, rule 2.]uponnon- appearance.[Order 10, rule 3.]Failure to serve.[Order 10, rule 4.]Judgment upon aliquidated demand.5. Where the plaint makes a liquidated demand with or without some otherclaim, and there are several defendants of whom one or more appear and anyother fails to appear, the court shall, on request in Form No. 13 of Appendix A,enter judgment against any defendant failing to appear in accordance with rule4, and execution may issue upon such judgment and decree without prejudiceto the plaintiff’s right to proceed with the action against such as have appeared.6. Where the plaint is drawn with a claim for pecuniary damages only orfor detention of goods with or without a claim for pecuniary damages, and anydefendant fails to appear, the court shall, on request in Form No. 13 of Appendix[Order 10, rule 5.]Liquidated demandagainst severaldefendants.[Order 10, rule 6.]Interlocutoryjudgment.