CHAPTER 33 THE CIVIL PROCEDURE CODE [PRINCIPAL LEGISLATION] . Arrangement of Sections AG of O n Section Title iss io rmpart i pe PRELIMINARY PROVISIONS ut ith o 1. Short title. d w 2. Application. te ibu 3. Interpretation. tr dis 4. Overriding objective of Act. or d 5. Duty to uphold objective. uc e 6. Subordination of courts. pro d 7. Saving of procedure prescribed in other laws. e e r 8. Pecuniary jurisdiction. ay b m part oio k i JURISDICTION OF COUhis b t RTS AND RES JUDICATA f 9. Jurisdiction of courts. rt o 10. Stay of suit. pa No 11. Res judicata. ed . 12. Bar to further suit. ervs 13. Bona fide steps tot sr e resolve dispute. 14. When foreigni gjuh r dgment not conclusive. 15. Presumpt.i oAnll as to foreign judgment. an ia nz Place of Suing a 16. Cf To ourts in which suits may be instituted. 17 t e. n Suits to be instituted where subject matter situate. rn1m8. Suits for immovable property situate within jurisdiction of veo different courts. 5 G2 19. Place of institution of suit where local limits of jurisdiction 20 of courts are uncertain. © 20. Suits of compensation for wrongs to person or movables. 21. Other suits to be instituted where defendant resides or cause of action arises. 22. Objections to jurisdiction. v THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 23. Power to transfer suits which may be instituted in more than one court. 24. General power of transfer and withdrawal. Institution of Suits 25. Institution of suits. . 26. Vexatious or frivolous proceedings prohibited. OAG 27. Power to make orders. f n o 28. Restraint of proceedings. io iss rm Summons and Discovery t p e 29. Summons to defendant. tho u i 30. Service of summons where defendant resides outside jurisdiction of codu rwt. 31. Power to order discovery and like. uteib 32. Summons to witness. strdi 33. Penalty for default. d o r 34. Delivery of decision. e du c ro Interest re p 35. Interest on judgment debts. e ay b Costs k m oo 36. Costs. b thi s rt o f pa part iii o N EXECUTION d. rve General e 37. Application to ord reer ss. 38. Definition of “ ts igchourt which passed decree”. All r ia. Courts by which Decrees may be Executed 39. Courtasnz by which decrees may be executed. n 40. T a f rTansfer of decree. 41. o nt Result of execution proceedings to be certified. n4m2 e. Powers of court in executing transferred decree. er ov 43. Precepts. 5 G 02 Questions to be Determined by Court Executing Decree ©2 44. Questions to be determined by Court executing decree. Limit of Time for Execution 45. Execution barred in certain cases. vi THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Transferees and Legal Representatives 46. Transferee. 47. Legal representative. Procedure in Execution G. 48. Powers of court to enforce execution. A f O 49. Enforcement of decree against legal representative. n o sio Arrest and Detention s erm i 50. Arrest and detention. ut p 51. Subsistence allowance. o ith 52. Detention and release. ed w 53. Release on grounds of illness. utib dis tr Attachment or 54. Property liable to attachment and sale in execution of deuccr eede. 55. Seizure of property in dwelling house. rodp 56. Property attached in execution of decrees of seve e era rl courts. 57. Private alienation of property after attachmenaty t bo be void. k mSale o bo 58. Purchaser’s title. thi s 59. Suit against purchaser not maint ta oin f able on ground of purchase being on behalf of plaintiff. r o p a . N ed Distribution of Assets v 60. Proceeds of executiosne r sale to be rateably distributed among decree-hotsl d reers. l ri gh Al Resistance to Execution 61. Resistanniac .e to execution. za Tan of part iv en t INCIDENTAL PROCEEDINGS m ern Commissions Gov 62. Power of court to issue commissions. 5 02 63. Commission to another court. ©2 64. Letter of request. 65. Commissions issued by foreign courts. vii THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] part v SUITS IN PARTICULAR CASES Suits against Public Officers 66. Exemption from arrest and personal appearance of public officers. G. Suits by Aliens and Foreign States A f O 67. When aliens may sue. ion o 68. When foreign State may sue. iss erm Interpleader t p ou 69. Where interpleader suit may be instituted. ith d w part vi ibu te r SPECIAL PROCEEDINGS t r d is Arbitration, Conciliation, Negotiation and Medeida toion c 70. Arbitration. u rod 71. Conciliation, negotiation and mediation. rep 72. Accreditation matters. y b e 73. Appointment and functions of Registrar. m a 74. Societies and regulations. ok is bo Spe cthial Case rt o f 75. Power to state case for opinio npa of court. o Sudi.t e sN Relating to Public Matters 76. Public nuisance. ervs 77. Public charities. re hts ll r ig A part vii nia . a SUPPLEMENTAL PROCEEDINGS z 78. SuTpapnlemental proceedings. of 79. t Compensation for obtaining arrest, attachment or injunction on n me insufficient grounds. ern Gov part viii 02 5 APPEALS ©2 Appeals from Decrees 80. Appeal from original decree. 81. Appeals from final decree where no appeal from preliminary decree. viii THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 82. Decision where appeal heard by two or more judges. 83. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. Appeals from Orders . 84. Orders from which appeals lie. G OA 85. Other orders. of ion General Provisions Relating to Appeals iss rm 86. Powers of High Court on appeal. e ut p ith o part ix w REFERENCE, REVIEW AND REVISION ute d ib 87. Reference to High Court. dis tr 88. Review. d o r 89. Revision. uc e d pro part x re RULES be ay 90. Application of rules in First and Second Sckh mo edules. 91. Powers of Chief Justice to make rules. bois 92. Matters for which rules may providf eth. art o o p part xi MISCd.E NLLANEOUS PROVISIONS rve93. Courts to respect prsiveacy of women enjoined by religion or custom. e 94. Arrest other than hts irn execution of decree. 95. Exemption flr roi gm arrest under civil process. 96. Proceduare. Aw l here person to be arrested or property to be attached is outsid i aen jurisdiction. 97. Ass z aenssors in causes of salvage, etc.. 98. T t oO f rders and notices to be in writing. 9m9e. n Application for restitution. e1rn00. Enforcement of liability of surety. ov G 101. Proceedings by or against representatives. 02 5 102. Consent or agreement by persons under disability. ©2 103. Enlargement of time. 104. Transfer of business. 105. Saving of inherent powers of court. 106. Amendments of judgments, decrees or orders. 107. General power to amend. ix THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] part xii REPEAL AND TRANSITIONAL PROVISIONS 108–110. Omitted. 111. Forms. G. FIRST SCHEDULE OA n o f THE CIVIL PROCEDURE RULES siois 1. Citation. rm t p e ORDER I: PARTIES TO SUITS outh (a) Joinder of Parties wi 1. Who may be joined as plaintiffs. ute d 2. Power of court to order separate trials. trib 3. Who may be joined as defendants. s di 4. Court may give judgment for or against one or more of joint partiesd. o r 5. Defendant need not be interested. ceu 6. Joinder of parties liable on same contract. rod 7. When plaintiff in doubt, from whom redress is to be soug rhet p. 8. One person may sue or defend on behalf of all in same b ienterest. 9. Misjoinder and non-joinder of parties. ay 10. Suit in name of wrong plaintiff. ok m 11. Conduct of suit. bo 12. Appearance of one of several plaintiffs orh dis t efendants for others. 13. Objections as to non-joinder or misrjto oin f der. pa(ob) Third Party Procedure 14. Leave to file third party notdi.c e N. 15. Contents of notice. rve 16. Service of notice onr eths eird party and other parties to suit. 17. Defence by third tps arty. 18. Directions. rig h 19. Judgmen.t Aa lglainst third party in default. 20. Costs.nia 21. Prnozv aisions of Code and Law of Limitation Act to apply to third party proceedings. 22. TThaf ird party may present third party notice. 2n3t. o Co-defendant as third party. me rn ORDER II: FRAME OF SUIT ov e G 1. Frame of suit. 25 2. Omitted. 20 3. Suit to include whole claim, relinquishment of part of claim and omission © to sue for one of several reliefs. 4. Joinder of causes of action. 5. Only certain claims to be joined for recovery of immovable property. 6. Claims by or against executor, administrator or heir. 7. Power of court to order separate trials. 8. Objections as to misjoinder of causes of action. x THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER III: RECOGNISED AGENTS AND ADVOCATES 1. Appearances, etc., may be in person, by recognised agent or by advocate. 2. Recognised agents. 3. Certification by Council for Legal Education. 4. Service of process on recognised agent. . 5. Advocate to produce written authority when required. AG 6. Service of process on advocate. of O 7. Agent to accept service and appointment to be in writing and to be filed in court. sio n ORDER IV: INSTITUTION OF SUITS is erm 1. Suit to be commenced by plaint. ut p 2. Register of suits. o ith 3. Assignment of instituted suit. w ted ORDER V: ISSUE AND SERVICE OF SUMMONS ibur ist (a) Issue of Summons or d 1. Summons to file written statement of defence. ed 2. Summons to be signed and sealed. ucd 3. Copy of plaint. pro 4. Fixing of date for orders. e r e b (b) Service of Summoanys 5. Delivery or transmission of summons for serviceo. k m 6. Mode of service. bo 7. Service on several defendants. thi s 8. Service to be on defendant in person wrth oe fn practicable or on his agent. 9. Service on agent by whom defenda npta carries on business. 10. Service on agent in charge in su iNts o for immovable property. 11. Where service may be made odn.e any adult member of defendant’s family. 12. Person served to sign ac rv skenowledgement. 13. Procedure when defe nredant cannot be found. 14. Endorsement of tgihm tse and manner of service. 15. Examination ollf rs ierving officer. 16. Substitutead. s Aervice. 17. Service i a bny post. 18. Seravincze of summons where defendant resides within jurisdiction of another court. 19. oDf u Tty of court to which summons is sent. 20 t e. n Service on defendant in prison. n2m1. Service on officers of Government and local government authorities. erv 22. Service on members of armed forces. Go 23. Duty of person to whom summons is delivered or sent for service. 5 02 24. Service where defendant resides in neighbouring country. ©2 25. Service where defendant resides outside Tanzania. 26. Service by post, when effective. 27. Service by plaintiff or his agent. 28. Service through courts of other countries. 29. Procedure for procuring service through courts of other countries. 30. Electronic substituted service. xi THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER VI: PLEADING GENERALLY 1. Pleading. 2. Service of pleading on parties to suit. 3. Pleading to state material facts and not evidence. 4. Particulars to be given where necessary. . 5. Further and better statements or particulars. AG 6. Condition precedent. of O 7. Departure. ion 8. Denial of contract. iss 9. Effect of document to be stated. erm 10. Malice, knowledge, etc.. p ut 11. Notice. ith o 12. Implied contract or relation. d w 13. Presumption of law. ute 14. Pleading to be signed. trib 15. Verification of pleadings. r d is 16. Striking out pleading. d o 17. Amendment of pleading. e uc 18. Failure to amend after order. rod ep ORDER VII: PLAINTe r b 1. Particulars to be contained in plaint. may 2. In money suits, precise amount of money to be stakte o d. 3. Where subject matter of suit is immovable prso bp oerty, identification required. 4. When plaintiff sues as representative. f th i 5. Defendant’s interest and liability to ber st hoown. 6. Ground of exemption from limitati poan law. 7. Relief to be specifically stated. . N o 8. Relief founded on separate gerdounds. 9. List of documents. ervs 10. Return of plaint ands p rr eocedure on returning plaint. 11. Rejection of plaiingth. t 12. Procedure on lrl erjecting plaint. 13. Where rejiaec. tAion of plaint does not preclude presentation of fresh plaint. za n n Documents Relied on in Plaint 14. Pf rTo aduction of document on which plaintiff sues. 15. nt oStatement in case of documents not in plaintiff ’s possession or power. 1m6e. Suits on lost negotiable instruments. ernv 17. Production of shop book and original entry to be marked and returned. Go 18. Inadmissibility of document not produced when plaint filed. 5 20 2 ORDER VIII © A. WRITTEN STATEMENT OF DEFENCE, SET-OFF AND COUNTERCLAIM 1. Written statement of defence. 2. New facts and preliminary objections must be specifically pleaded. 3. Denial to be specific. xii THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 4. Evasive denial. 5. Specific denial. 6. Particulars of set-off to be given in written statement and effect of set-off. 7. Defence of set-off founded on separate grounds. 8. New ground of defence. 9. Counterclaim. G. 10. Counterclaim against plaintiff and third party. O A 11. Reply to counterclaim. f n o 12. Court may order separate trial of counterclaim. sio 13. Subsequent pleadings. mis r 14. Failure to present written statement of defence. pe 15. Setting aside default judgment. ou t 16. When all pleadings presented. ith d w B. FIRST PRE-TRIAL SETTLEMENT AND ute SCHEDULING CONFERENCE trib 17. Attendance for orders. r d is o 18. Pre-trial conference to be held when directed by court. ce d 19. Notification of pre-trial conference. du 20. Failure to appear of one or more of parties. ro ep 21. Failure to comply with directions. e r 22. Determination of speed track of case. ay b 23. Prohibition of amendment to scheduling order. m ok C: NEGOTIATIONS ,b Co ONCILIATION. MEDIATION AND AR is of tBhITRATION PROCEDURE 24. Reference to mediation and arbitratioanrt. 25. Mediation. o p 26. Purpose and nature of mediatdi.o Nn. 27. Attendance to mediation. rve 28. Authority to settle. es e 29. Failure to attend. ts r 30. Restoration of suigith r dismissed for non-appearance to mediation. 31. ConfidentialAitlyl ia. . 32. Durationn of mediation. 33. End nozf amediation. 34. D uTtaf y to remit case to trial court. 35. nt oProcedure on arbitration. 3m6e. Agreement to resolve dispute through negotiation or conciliation. ern37. Duration of negotiation or conciliation. Gov 38. Closure of negotiation or conciliation. 25 39. Duty to remit agreement to trial court. 20© D. FINAL PRE-TRIAL SETTLEMENT AND SCHEDULING CONFERENCE 40. Final pre-trial conference. 41. Lapse of speed track of case. xiii THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER IX: APPEARANCE OF PARTIES AND CONSEQUENCES OF NON-APPEARANCE 1. Parties to appear on day fixed for hearing. 2. Where neither party appears suit to be dismissed. 3. Plantiff may bring fresh suit or court may restore the suit. . 4. Procedure where defendant appears on day of adjourned hearing AG and assigns good cause for previous non-appearance.. f O 5. Procedure where defendant only appears. on o 6. Decree against plaintiff by default bars fresh suit. i iss 7. Procedure in case of non-attendance of one or more of several plaintiffs. erm 8. Procedure in case of non-attendance of one or more of several defendants. t p ou Setting Aside Decrees (Ex Parte) th wi 9. Setting aside decree or judgment ex parte against defendant. ted 10. No decree or judgment to be set aside without notice to opposite party. ibu str ORDER X: EXAMINATION OF PARTIES r d i BY THE COURT d o ce 1. Ascertainment whether allegations in pleadings are admitted or ddeunied. 2. Oral examination of party or companion of party. proe 3. Substance of examination to be written. e r 4. Consequence of refusal or inability of advocate to answye rb. ma ORDER XI: DISCOVERY oAkN D INSPECTION bo 1. Discovery by interrogatories. is h 2. Particular interrogatories to be submitteodf. t 3. Costs of interrogatories. art 4. Interrogatories relating to corporaot ipons. 5. Objections to interrogatories db.y N answer. 6. Setting aside and striking orvuet interrogatories. 7. Filing of affidavit in an e resws er. 8. No exception to be ttsa ken. 9. Order to answeri goh r r answer further. 10. Application. fAo lrl discovery of documents. 11. Affidavitn oiaf documents. 12. Prodnuzc ation of documents. 13. Ifn Tspaection of documents referred to in pleadings or affidavits. 14. o nt Time for inspection when notice given. 1m5e. Order for inspection. ern16. Verified copies. v Go 17. Premature discovery. 25 18. Non-compliance with order for discovery. 20 19. Using answers to interrogatories at trial. © 20. Application of order to minors. ORDER XII: ADMISSIONS 1. Notice of admission of case. 2. Notice to admit documents. xiv THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 3. Notice to admit facts. 4. Judgment on admissions. 5. Affidavit of signature. 6. Evidence of notice to produce documents. 7. Costs. . ORDER XIII: PRODUCTION, IMPOUNDING AND AG RETURN OF DOCUMENTS of O n 1. Documentary evidence to be produced at first hearing. io 2. Effect of non-production of documents. miss r 3. Rejection of irrelevant or inadmissible documents. pe 4. Endorsements on documents admitted in evidence. t ou 5. Endorsements on copies of admitted entries in books, accounts and records. ithw 6. Endorsements on documents rejected as inadmissible in evidence. ted 7. Recording of admitted documents and return of rejected documents. ibu 8. Court may order any document to be impounded. r ist 9. Return of admitted documents. r d o 10. Court may send for papers from its own records or from other courctse. d 11. Provisions as to documents also applicable to material objects. u rod ORDER XIV: SETTLEMENT OF ISSUES AND D reE pTERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSyU bE eS AGREED UPON a 1. Framing of issues. k m 2. Issues of law and of fact. oo 3. Materials from which issues may be framed. b is 4. Court may examine witnesses or documoefn tths before framing issues. 5. Power to amend and strike out issues pa .rt 6. Questions of fact or law may by agoreement be stated in form of issues. 7. Court, if satisfied that agreeme.n Nd t was executed in good faith, may pronounce judgment. erv e ORDER XVre:ss DISPOSAL OF THE SUIT AT FIRST HEARING t 1. Parties not at is h sruige. 2. One of seve.r Aall ldefendants not at issue. 3. Parties ant iiassue. 4. Failunrze a to produce evidence. Ta of ORDER XVI: SUMMONING AND ATTENDANCE OF WITNESSES t m1e. n Summons to attend, to give evidence or produce documents. ern 2. Expenses of witnesses. Gov 3. Tender of expenses to witnesses. 25 4. Procedure where insufficient sum paid in and expenses of witnesses 20 detained more than one day. © 5. Time, place and purpose of attendance to be specified in summons. 6. Summons to produce document. 7. Power to require persons present in court to give evidence or produce document. 8. Manner of services of summons. 9. Time for serving summons. xv THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 10. Procedure where witness fails to comply with summons. 11. Where witness appears attachment may be withdrawn. 12. Procedure where witness fails to appear. 13. Mode of attachment. 14. Court may of its own accord summon as witnesses strangers to suit. 15. Duty of persons summoned to give evidence or produce document. G. 16. Obligation of person summoned to attend hearing. OA 17. Application of rules 10 to 13. f n o 18. Procedure where witness apprehended cannot give evidence or produce document. sio 19. No witness to be ordered to attend in person unless resident within certain limits. is rm 20. Consequence of refusal of party to give evidence when called on by court. pe 21. Rules as to witnesses to apply to parties summoned. ou t ith ORDER XVII: ADJOURNMENTS d wte 1. Court may grant time and adjourn hearing and costs of adjournment. u rib 2. Procedure if parties fail to appear on day fixed. istd 3. Court may proceed notwithstanding either party failing to produce evid oern ce, etc.. 4. Procedure where no application is made on suit adjourned generallyc.e d 5. Suit may be struck out if no step taken for three years. rod u ORDER XVIII: HEARING OF SU rIeT p AND EXAMINATION OF WITyN bEeSSES a 1. Right to begin. k m 2. Witness statement. o bo 3. Filing and service of witness statement. his 4. Consequence of failure to serve witness t ostfatement. 5. Formal production of statements anda rttendering of exhibits. 6. Statement of case and productiono o pf evidence. 7. Evidence where there are sever.a Nd l issues. 8. Manner of giving evidencer.ve 9. Any particular questiorens a end answer may be taken down. 10. Manner of taking evtsid ence. 11. Questions obje crtigedh to and allowed by court. 12. Remarks on. Ad lelmeanour of witness. 13. Power ton idairect shorthand record. 14. Powenrz t ao examine witness immediately. 15. Pf oTw aer to deal with evidence taken before another judge or magistrate. 16. nt oCourt may recall and examine witness. 1m7e. Power of court to inspect. ern18. Hearing of appeals and applications. v Go 19. Appearance for cross examination. 02 5 2 ORDER XIX: AFFIDAVITS © 1. Power to order any point to be proved by affidavit. 2. Power to order attendance of deponent for cross examination. 3. Matters to which affidavits shall be confined. xvi THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER XX: JUDGMENT AND DECREE 1. Judgment, when pronounced. 2. Power to pronounce judgment written by judge’s or magistrate’s predecessor. 3. Judgment to be signed. 4. Judgment in Commercial Division of High Court. . 5. Opinion of assessors. AG 6. Contents of judgments. f O 7. Courts to state its decision on each issue. ion o 8. Contents of decree. iss 9. Date of decree. erm 10. Procedure where judge or magistrate has vacated office before signing decree. ut p 11. Decree for recovery of immovable property. o ith 12. Decree for delivery of movable property. d w 13. Decree may direct payment by installments. ute 14. Decree for possession and mesne profits. trib 15. Decree in administration suit. di s r 16. Decree in pre-emption suit. d o 17. Decree in suit for dissolution of partnership. ceu 18. Decree in suit for account between principal and agent. rod 19. Special directions as to accounts. re p 20. Decree in suit for partition of property or separate posse sbseion of share therein. 21. Decree when set-off allowed and appeal from decreem rae ylating to set-off. 22. Certified copies of judgment and decree to be furnki oo shed. Intiesr b h est 23. Interest on judgment debts. f t rt o ORDER XXI: EXEC a o Up TION OF DECREES AND ORDERS . N ed Payment under Decree 1. Modes of paying moneys ue rnvder decree. 2. Payment out of court rteo decree-holder. 3. Satisfaction of orgdhe trss against Government. ll r i A Courts Executing Decrees . 4. Lands sintuiaate in more than one jurisdiction. 5. Modnez o af transfer. 6. Pf rTo acedure where court desires that its own decree shall be t oexecuted by another court. n m7e. Court receiving copies of decree, etc., to file same without proof. ern 8. Execution of decree or order by court to which it is sent. ov 9. Execution by High Court of decree transferred by other court. 5 G 02 Application for Execution ©2 10. Application for execution. 11. Oral and written applications. 12. Application for attachment of movable property not in judgment debtor’s possession. 13. Application for attachment of immovable property to contain certain particulars. 14. Application for execution by joint decree-holder. 15. Application for execution by transferee of decree. xvii THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 16. Procedure on receiving application for execution of decree. 17. Execution in case of cross-decrees. 18. Execution in case of cross-claims under same decree. 19. Cross-decrees and cross-claims in mortgage suits. 20. Continuous order for attachment in certain cases. 21. Simultaneous execution. . AG Notice before Execution O of 22. Notice to show cause against execution in certain cases. ion 23. Procedure after issue of notice. iss rm Process for Execution pet 24. Process for execution. u ho 25. Endorsement on process. it d w Stay of Execution uteib 26. When court may stay execution and power to require security from or ist r impose conditions upon judgment debtor. d 27. Liability of judgment debtor discharged. d o r e 28. Order of court which passed decree or of appellate court to be binddui cng upon court applied to. pro 29. Stay of execution pending suit between decree-holder ande ju rd egment debtor. b Mode of Execution y a 30. Decree for payment of money. m 31. Decree for specific movable property. oo k b 32. Decree for specific performance, for restituhtiiosn of conjugal rights, or for injunction. t of 33. Execution of decrees for restitutionp oaf r ctonjugal rights. 34. Decree for execution of documenot or endorsement of negotiable instrument. 35. Decree for delivery of immova.b Nd le property. 36. Decree for delivery of imemrvo evable property when in occupancy of tenant. es ts r Arrest and Detention in Prison 37. Discretionary poigwhr er to permit judgment debtor to show cause against detenAtlilo n in prison. 38. Warrant fioar. arrest to direct judgment debtor to be brought up. 39. Reque n zsat for arrest by telegram. 40. SubasnT istence allowance. 41. t oP f roceedings on appearance of judgment debtor in obedience to notice or after arrest. enm Attachment of Property ernv 42. Examination of judgment debtor as to his property. Go 43. Attachment in case of decree for rent or mesne profits or other matter, amount of 25 which to be subsequently determined. 0 ©2 44. Attachment of movable property, other than agricultural produce, in possession of judgment debtor. 45. Attachment of agricultural produce. 46. Provisions as to agricultural produce under attachment. 47. Attachment of debt, share and other property not in possession of judgment debtor. xviii THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 48. Attachment of share in movables. 49. Attachment of salary. 50. Attachment of partnership property. 51. Execution of decree against firm. 52. Attachment of negotiable instruments. 53. Attachment of property in custody of court or public officer. G. 54. Attachment of decrees. A O 55. Attachment of immovable property. n o f 56. Removal of attachment after satisfaction of decree. sio 57. Order for payment of coin or currency notes to party entitled under decree. is rm 58. Determination of attachment. e ut p Investigation of Claims and Objections o ith 59. Investigation of claims to, and objections to attachment of, attached property d w and postponement of sale. ute 60. Evidence to be adduced by claimant. tribs 61. Release of property from attachment. r d i 62. Disallowance of claim to property attached. d o 63. Continuance of attachment subject to claim of incumbrancer. uc e 64. Saving of suits to establish right to attached property. pro d Sale Generally e r e b 65. Power to order property attached to be sold and proceaeyd s to be paid to person entitled. 66. Sales, by whom conducted and how made. k m 67. Proclamation of sales by public auction. o bo 68. Mode of making proclamation. is h 69. Time of sale. of t 70. Adjournment or stoppage of sale. art 71. Defaulting purchaser answerable ofo pr loss on re-sale. 72. Decree-holder not to bid for odr. Nbuy property without permission. 73. Restriction on bidding ore prvu erchase by officer. res ts Sale of Movable Property 74. Sale of agriculturriga hl produce. 75. Special provi Asillons relating to growing crops. 76. Negotiabl iea .instruments and shares in corporations. 77. Sale bzya p nublic auction. 78. Irr n Teagularity not to vitiate sale, but any person injured may sue. 79. t oD f elivery of movable property, debts and shares. 80e. n Transfer of negotiable instruments and shares. rn8m1. Vesting order in case of other property. ve G o Sale of Immovable Property 5 02 82. Courts that may order sales. ©2 83. Postponement of sale to enable judgment debtor to raise amount of decree. 84. Deposit by purchaser and re-sale on default. 85. Time for payment in full of purchase-money. 86. Procedure in default of payment. 87. Notification on re-sale. 88. Bid of co-sharer to have preference. xix THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 89. Application to set aside sale on deposit. 90. Application to set aside sale on ground of irregularity or fraud. 91. Application by purchaser to set aside sale on ground of judgment debtor having no saleable interest. 92. Sale, when to become absolute or be set aside. 93. Return of purchase money in certain cases. G. 94. Certificate to purchaser. O A 95. Delivery of property in occupancy of judgment debtor. of 96. Delivery of property in occupancy of tenant. sio n is Resistance to Delivery of Possession to Decree-Holder or Purchaser erm 97. Resistance or obstruction to possession of immovable property. p ut 98. Resistance or obstruction by judgment debtor. ith o 99. Resistance or obstruction by bona fide claimant. d w 100. Dispossession by decree-holder or purchaser. ute 101. Bona fide claimant to be restored to possession. ib str 102. Rules not applicable to transferee pendente lite. dir 103. Orders conclusive subject to regular suit. d o ce ORDER XXII du DEATH, MARRIAGE AND INSOLVENCY rOoF PARTIES re p 1. No abatement by party’s death if right to sue survives. be 2. Procedure where one of several plaintiffs or defendamntasy dies and right to sue survives. ok 3. Procedure in case of death of one of several pl abiontiffs or of sole plaintiff. 4. Procedure in case of death of one of severa s tlh d i efendants or of sole defendant. 5. Determination of question as to legal rte po fresentative. 6. No abatement by reason of death a ftpear r hearing. 7. Suit not abated by marriage of f eNm oale party. 8. When plaintiff ’s insolvency ebdar.s suit and procedure where assignee fails to continue suit or give secuerrivty. 9. Effect of abatement o rr ed sismissal. 10. Procedure in caseg ho tfs assignment before final order in suit. 11. Application ofl lO r irder to appeals. 12. Applicatioan. o Af Order to proceedings in execution of decree or order. an i nz ORDER XXIII Ta WITHDRAWAL AND ADJUSTMENT OF SUITS f 1. nt oWithdrawal of suit or abandonment of part of claim. nm2e. Limitation law not affected by fresh suit. ve r 3. Compromise of suit. o G 4. Proceedings in execution of decrees not affected. 25 20 ORDER XXIV © PAYMENT INTO COURT 1. Deposit by defendant of amount in satisfaction of claim. 2. Notice of deposit. 3. Interest on deposit not allowed to plaintiff after notice. 4. Procedure where plaintiff accepts deposit as satisfaction in full or in part. xx THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER XXV SECURITY FOR COSTS 1. When security for costs may be required from plaintiff. 2. Effect of failure to furnish security. ORDER XXVI AG. COMMISSIONS f O o Commissions to Examine Witnesses ion 1. Cases in which court may issue commission to examine witness. iss 2. Order for commission. ermp 3. Where witness resides within court’s jurisdiction. ut 4. Persons for whose examination court may issue commission. ith o 5. Commission or request to examine witness not within Tanzania. d w 6. Court to examine witness pursuant to commission. bu te 7. Return of commission with depositions of witnesses. triis 8. When depositions may be read in evidence. d or Commissions for Local Investigations ed uc 9. Commissions to make local investigation. rod 10. Procedure of commissioner and evidential status of report a rned p deposition in suit. e Commissions to Examine Aacyc bounts 11. Commissions to examine or adjust accounts. k m12. Court to give commissioner necessary instructioonos and evidential status of proceedings and report. s b f th i Commissito ons to Make Partitions 13. Commission to make partition of i mpam r ovable property. 14. Procedure of commissioner. No d. rve General Provisions 15. Expenses of commissiroens eto be paid into court. 16. Powers of commishsitos ners. 17. Attendance and r iegl xamination of witnesses before commissioner. 18. Parties to ap l . pAear before commissioner. nia za ORDER XXVII Tan SUITS BY OR AGAINST MILITARY PERSONNEL f 1. t on Officers or soldiers who cannot obtain leave may authorise any person to sue or me defend for them. ern 2. Person so authorised may act personally or appoint advocate. Gov 3. Service on person authorised, or on his advocate, to be good service. 5 02 ORDER XXVIII ©2 SUITS BY OR AGAINST CORPORATIONS 1. Subscription and verification of pleading. 2. Service on corporation. 3. Power to require personal attendance of officer of corporation. xxi THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER XXIX SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN 1. Suing of partners in name of firm. 2. Disclosure of partners’ names. 3. Service. AG. 4. Right of suit on death of partner. of O 5. Notice, in what capacity served. on 6. Appearance of partners. i miss 7. No appearance except by partners. er 8. Appearance under protest. p ut 9. Suits between co-partners. ith o 10. Suit against person carrying on business in name other than his own. d wte ORDER XXX ibu SUITS BY OR AGAINST TRUSTEES, EXECUTORS is t r AND ADMINISTRATORS d d o r 1. Representation of beneficiaries in suits concerning property vestedu icn e trustees, etc. 2. Joinder of trustees, executors and administrators. d pro ORDER XXXI e r e SUITS BY OR AGAINST MaINy bORS AND PERSONS OF UNSOkU mND MIND o 1. Minor to sue by next friend. bo 2. Where suit is instituted without next frien is dth, plaint to be taken off file. 3. Guardian for suit to be appointed by cot uorft for minor defendant. 4. Who may act as next friend or be a pppaor inted guardian for suit. 5. Representation of minor by nex Nt f oriend or guardian for suit. 6. Receipt by next friend or gueardd. ian for suit of property under decree for minor. 7. Agreement or compromieserv by next friend or guardian for suit. 8. Retirement of next fr ireen sd. 9. Removal of next frhitesnd. 10. Stay of proceeld g l irni gs on removal, etc., of next friend. 11. Retiremenat., r Aemoval or death of guardian for suit. 12. Coursea tno i be followed by minor plaintiff or applicant on attaining majority. 13. Whaenrez minor co-plaintiff attaining majority desires to repudiate suit. 14. T oUf nreasonable or improper suit. 15e. n t Application of rules to persons of unsound mind. rnm ORDER XXXII ov e SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY 5 G 02 1. Parties to suits. ©2 2. Preliminary decree in redemption suit. 3. Final decree in redemption suit and power to enlarge time. 4. Decree where nothing is found due or where mortgagee has been overpaid. 5. Costs of mortgagee subsequent to decree. 6. Right of mesne mortgagee to redeem and foreclose. 7. Sale of property subject to prior mortgage. xxii THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 8. Application of proceeds. 9. Suit for possession. 10. Interpretation. 11. Mortgages by deposit of title deeds and charges. ORDER XXXIII . INTERPLEADER AG O 1. Plaint in interpleader suits. f n o 2. Payment of thing claimed into court. sio 3. Procedure where defendant is suing plaintiff. is rm 4. Procedure at first hearing. pe 5. Agents and tenants may not institute interpleader suits. ou t 6. Charge for plaintiff ’s costs. ith d w ORDER XXXIV ute SPECIAL CASE ib ist r 1. Power to state case for court’s opinion. or d 2. Where value of subject matter must be stated. ce d 3. Agreement to be filed and registered as suit. du 4. Parties to be subject to court’s jurisdiction. ro ep 5. Hearing and disposal of case. r be ORDER XXXmVa y SUMMARY PROCk o EDURE o 1. Application of Order. b is 2. Institution of summary suits. th 3. Defendant showing defence on meritsr tt o f a o have leave to appear. 4. Possession suit against trespasserso. p 5. Suit for possession of land conds. iNsting of dwelling house. 6. Additional requirements forvre possession suit by mortgagee. 7. Possession suit shall staetsee plaintiff ’s interest, etc.. 8. Power to set aside dtesc rree. 9. Power to order briigl hl, etc., to be deposited with officer of court. 10. Recovery of. Acollst of noting non-acceptance of dishonoured bill or note. 11. Procedunreia in suits. za anT ORDER XXXVI of ARREST AND ATTACHMENT BEFORE JUDGMENT t men Arrest before Judgment rn ve 1. Where defendant may be called upon to furnish security for appearance. G o 2. Request for arrest by telegram. 5 02 3. Security. ©2 4. Procedure on application by surety to be discharged. 5. Procedure where defendant fails to furnish security or find fresh security. Attachment before Judgment 6. Where defendant may be called upon to furnish security for production of property. 7. Attachment where cause not shown or security not furnished. 8. Mode of making attachment. xxiii THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 9. Investigation of claim to property attached before judgment. 10. Removal of attachment when security furnished or suit dismissed. 11. Attachment before judgment not to affect rights of strangers nor bar decree-holder from applying for sale. 12. Property attached before judgment not to be re-attached in execution of decree. 13. Agricultural produce not attachable before judgment. AG. ORDER XXXVII f O TEMPORARY INJUNCTIONS, DECLARATORY o on ORDERS AND INTERLOCUTORY ORDERS i iss rm Temporary Injunctions t p e 1. Cases in which temporary injunction may be granted or declaratory order made. ho u 2. Injunction to restrain repetition or continuance of breach. it w 3. Procedure where no application is made on suit adjourned generally. ted 4. Before granting injunction court to direct notice to opposite party. u rib 5. Order for injunction or declaratory order may be discharged, varied or set daissid t e. 6. Injunction to corporation binding on its officers. or d Interlocutory Orders ce du 7. Power to order interim sale. pro 8. Detention, preservation, inspection, etc., of subject mattere o rf e suit. 9. Application for orders to be after notice. y b 10. Deposits of money, etc., in court. a ok m ORDER XXoXVIII APPOINTMENhTis b t OF RECEIVERS f 1. Appointment of receivers. rt o 2. Remuneration of receiver. a o p 3. Duties of receiver. . N 4. Enforcement of receiver’s duetdrv ies. res e ORDER XXXIX hts APPEALS FROM ORIGINAL DECREES ig 1. Form of appeAalll ,r contents of memorandum and attachments. 2. Grounds iwa.h ich may be taken on appeal. 3. Rejectzioann or amendment of memorandum. 4. OnTea nof several plaintiffs or defendants may obtain reversal of t ow f hole decree where it proceeds on ground common to all. enm Stay of Proceedings and of Execution ernv 5. Stay by appellate court or by court which passed decree. Go 6. Security in case of order for execution of decree appealed from. 02 5 7. No security to be required from Government or public officer in certain cases. ©2 8. Exercise of powers in appeal from order made in execution of decree. Procedure on Admission of Appeal 9. Registration of memorandum of appeal and register of appeals. 10. Appellate court may require appellant to furnish security for costs. 11. Power to dismiss appeal without sending notice to lower court. 12. Day for hearing appeal. xxiv THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] 13. High Court to give notice to court whose decree is appealed from and other requirements. 14. Publication and service of notice of day for hearing of appeal. 15. Contents of notice. Procedure on Hearing 16. Right to begin. . 17. Dismissal of appeal for appellant’s default and hearing of appeal ex parte. AG 18. Dismissal of appeal where notice not served in consequence of of O appellant’s failure to deposit costs. n io 19. Re-admission of appeal dismissed for default. iss 20. Power to adjourn hearing and direct persons appearing interested to be made respondents. erm 21. Re-hearing on application of respondent against whom ex parte decree made. t pu 22. Upon hearing, respondent may object to decree as if he had preferred separate appeal. ith o 23. Remand of case by High Court. d w 24. Where evidence on record sufficient, High Court may finally ute determine case. trib 25. Where High Court may frame issues and refer them for trial to court di s whose decree is appealed from. d o r 26. Findings and evidence to be put on record, objections to finding andc e determination of appeal. rod u 27. Production of additional evidence in High Court. rep 28. Mode of taking additional evidence. e b 29. Points to be defined and recorded. may Judgment in oAop kpeal 30. Judgment, when and where pronounced. b is 31. Contents, date and signature of judgmenotf. th 32. What judgment may direct. pa rt 33. Power of High Court. o 34. Dissent to be recorded. . Nd erv e Decree in Appeal s 35. Date and contents osf  dr eecree. 36. Copies of judgmenhtt and decree to be furnished to parties. 37. Certified copyl lo r g fi decree to be sent to court whose decree appealed from. A nia . ORDER XL zan APPEALS FROM ORDERS 1. Af pT a o peals from orders. 2e. n t Procedure. m ve rn ORDER XLI Go REFERENCE 5 02 1. Reference of question to High Court. ©2 2. Court may pass decree contingent upon decision of High Court. 3. Judgment of High Court to be transmitted, and case disposed of accordingly. 4. Costs of reference to High Court. 5. Power to alter, etc., decree of court making reference. 6. Power to refer to High Court questions as to jurisdiction. xxv THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER XLII REVIEW 1. Application for review of judgment. 2. To whom application for review may be made. 3. Form of applications for review. . 4. Application, where rejected or granted. AG 5. Application for review in court consisting of two or more judges. of O 6. Decision where application heard by more than one judge. n io 7. Order of rejection not appealable and objections to order granting application. iss 8. Registration of application granted, and order for re-hearing. erm 9. Bar of certain applications. p ou t ORDER XLIII ithw MISCELLANEOUS PROVISIONS d ute 1. Powers of Registrars. trib 2. Applications to be by chamber summons supported by affidavit. disr 3. Process to be served at expense of party issuing and costs of service. d o 4. Orders and notices, how served. ceu 5. Directions of High Court may be notified by telegram. pro d re SECOND SCHEDUyL Eb e ma THE CIVIL PROCEDURE (AooR kB ITRATION) RULES b 1. Citation and application. is of th ArRt BITRATION ARB pITa RATION IN SUITS o 1. Order of reference to arbitratido.n N. 2. Appointment of arbitratorr.ve 3. Order of reference. res e 4. Where reference ish mts ade to two or more arbitrators, order to provide for difference of opinion. 5. Power of courtl troi g appoint arbitrator in certain cases. 6. Powers of a.r bAiltrator or umpire appointed under rule 4 or 5. 7. Summonninag witnesses and default. 8. Extennzsiaon of time for making award. 9. Wf Th aere umpire may arbitrate in lieu of arbitrators. 10. o nt Award to be signed and filed. 1m1e. Statement of special case by arbitrators or umpire. ern12. Power to modify or correct award. ovG 13. Order as to costs of arbitration. 5 2 14. Where award or matter referred to arbitration may be remitted. 0 ©2 15. Grounds for setting aside award. 16. Judgment to be according to award. xxvi THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER OF REFERENCE ON AGREEMENTS TO REFER TO ARBITRATION 17. Application to file in court agreement to refer to arbitration. 18. Stay of suit where there is agreement to refer to arbitration. 19. Provisions applicable to proceedings under rule 17. G. ARBITRATION WITHOUT THE O A INTERVENTION OF A COURT of ion 20. Filing award in matter referred to arbitration without intervention of court. iss 21. Filing and enforcement of such award. ermp ut ith o w ted trib u di s d o r ceu rod re p e ay b ok m bos f th i o pa rt No ed . se rv re hts ll r ig A nia . zan Ta nt of rnm e ov e 5 G 20 2 © xxvii G. A of O sio n is rm t p e ou ith ted w u str ib i or d ce d u rod re p e ay b k m oo his b f t art o No p ed . rv se ts re igh All r nia . nz a a f T nt o me ve rn 5 G o 2 ©20 CHAPTER 33 THE CIVIL PROCEDURE CODE . An Act to provide for the procedure and related matters in civil AG proceedings. of O n [1st January, 196s7s] io [GN. No. 410 of 19m6ir 6] Acts Nos. 8 of 2018 GNs. Nos. 422 of 1994 e t p 49 of 1966 1 of 2020 375 of 1966 140 of 1999 ou 11 of 1976 2 of 2020 363 of 1968 256 of 2005 ith 25 of 2002 376 of 1968 223 of 2010 d w 12 of 2004 79 of 1970 136 of 2011 ute 2 of 2005 228 of 1971 381 of 2019 trib 17 of 2008 23 of 1984 885 of 2019 r d is 4 of 2016 508 of 1991 761 of 2021 o ce d duro re p PARy bT e I a PRELIMINAk Rmo Y PROVISIONS s b o i Short title 1. This Act may be c iotfe thd as the Civil Procedure Code. rt pa Application 2. 1Subject to . tNh oe express provisions of any written law, the provisions rovef d this Code shall apply to all proceedings in the Hig e hre sCourt of the United Republic, courts of resident magiisgthr tsates and district courts. ll rA Interpretation n3a. . i In this Code, unless the context otherwise requires- Act No. nz a 1 of 2020 s. 4 a “advocate” has the meaning ascribed to it in the Advocates Cap. 341 f T nt o Act; me “court”, except in the expression “foreign court”, means the ve rn High Court of the United Republic, a court of a resident 5 G o magistrate or a district court presided over by a civil 022 magistrate and references to a district court are references © to a district court presided over by a civil magistrate; 1 Note: The rules of primary courts are set out in the Magistrates Courts (Civil Procedure in Primary Courts) Rules-Cap. 11 S.L. 1 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] “decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may . be either preliminary or final and it shall be deemed to AG O include the rejection of a plaint and the determination f n o of any question within section 44 or section 99, but shaissl ilo not include- ermp (a) an adjudication from which an appeal lies as an t ou appeal from an order; or with d (b) any order of dismissal for default. te bu Explanation: A  decree is preliminarytr iis when further proceedings have to be taken obr edfore the suit can be completely disposed of.u cIet d is final when such adjudication completely dprios dposes of the suit. It may be partly preliminary an rebe d partly final; “decree-holder” means any mpeyr a son in whose favour a decree has been passed or aono k order capable of execution has been made; is b th “foreign court” mertaon f s a court situated beyond the limits of Tanzania whic pha has no authority in Tanzania; “foreign judgm. N o d ent” means the judgment of a foreign court; “High Courrvtese ” means the High Court of the United Republic; “judgm e tse rnt” means the statement given by a judge or a ml riag hgistrate on the grounds for a decree or order; Al “ iaj.udgment debtor” means any person against whom a anz decree has been passed or an order capable of execution n Ta has been made; nt of e “legal representative” means a person who in law represents m ern the estate of a deceased person, and includes any person ov G who intermeddles with the estate of the deceased and 02 5 where a party sues or is sued in a representative character, ©2 the person on whom the estate devolves on the death of the party so suing or sued; “mesne profits of property” means those profits which the person in wrongful possession of such property actually 2 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] received or might, with ordinary diligence, have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession; . “Minister” means the Minister responsible for legal affairs; OAG “movable property” includes growing crops; n o f “order” means the formal expression of any decision ofis sa io civil court which is not a decree; ermp “rules” means the rules contained in the First ando uS t econd Schedules or made under section 35, 51 or 92;with d “share in a corporation” shall be deemed to biun teclude stock, debenture stock, debentures, or bonds; daisn trdi “signed” save in the case of a judgmen r dt o r decree, includes stamped. ce rod u p Overriding 4.–(1) The overriding objective boef rtehis Act shall be to facilitate objective of Act Act No. the just, expeditious, propormtiao y nate and affordable resolution 8 of 2018 s. 6 of civil disputes governed k oboy this Act. (2) The Court shall,h iisn b the exercise of its powers under this Act or the interpretatf itt o on of any of its provisions, seek to give effect to the overr r piading objective specified in subsection (1). o d. N [s. 3A] rvee Duty to uphold 5.–(1) F orer s the purpose of furthering the overriding objective objective Act No. speciifi ts ghed in section 4, the Court shall handle all matters 8 of 2018 s. 6 preAl r . sl ented before it with a view to attaining the following- niaa (a) just determination of the proceedings; an z T (b) efficient use of the available judicial and administrative nt of resources including the use of suitable technology; and nm e (c) timely disposal of the proceedings at a cost affordable er ov by the respective parties. 5 G2 (2) A party to civil proceedings or an advocate for such a 20© party shall have a duty to assist the Court to further overriding the objective of this Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. 3 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) The Chief Justice may make rules for better carrying out the provisions of sections 4 and this section. [s. 3B] Subordination of 6. For the purposes of this Code, every court of a resident G. courts A magistrate and every district court is subordinate to the High of O Court, and every district court is subordinate to the court osfio n the resident magistrate within the area of whose jurisdictiormn is it e is situate. ut p o with [s. 4] ted Saving of 7. In the absence of any specific provision ttriob u the contrary, procedure prescribed in nothing in this Code shall be deemed to is r ldimit or otherwise other laws affect any special form of procedure preed soc cribed by or under any other law for the time being in forordc ue. p re [s. 5] y b e Pecuniary 8. Save in so far as is othekr wm aise expressly provided, nothing jurisdiction herein contained shall o bpoe orate to give any court jurisdiction over suits the amount hoisf t r value of the subject matter of which exceeds the pecuni o aartry limits, if any, of its ordinary jurisdiction. o p N [s. 6] d. erv e res PART II JU hts rRig ISDICTION OF COURTS AND RES JUDICATA ll . A Jurisdiction of an9 ia.–(1) Subject to this Act, the courts shall have jurisdiction courts nz Ta to try all suits of a civil nature except suits of which their of t cognisance is either expressly or impliedly barred. n nm e (2) A suit shall not be open to objection on the ground that er ov a merely declaratory judgment or order is sought thereby, and 5 G a court may make binding declarations of right whether or not 20 2 © any consequential relief is or could be claimed. [s. 7] 4 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Stay of suit 10. A court shall not proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under . the same title where such suit is pending in the same or any other OAG court in Tanzania having jurisdiction to grant the relief claimed. n o f Explanation: The pendency of a suit in a foreign courstiois does not preclude the courts in Tanzania efrmom trying a suit founded on the same cause of aocu tt pion. ith w [s. 8] ted Res judicata 11. A court shall not try any suit or issue in wihbustr ich the matter directly and substantially in issue has i orb deen directly and substantially in issue in a former suit be d uc teween the same parties or between parties under whom throedy or any of them claim p litigating under the same title ien r e a court competent to try such subsequent suit or the suayit b in which such issue has been subsequently raised and haosk b meen heard and finally decided by such court. is bo Explanation I: f th o The expression “former suit” shall denote a rtp suit which has been decided prior to the suit . iNn o question whether or not it was instituted prrvieo dr thereto. Exp se rleanation II: For purposes of this section, the htsig competence of a court shall be determined r A ll irrespective of any provisions as to a right of appeal nia . a from the decision of such court. z an Explanation III: The matter above referred to, shall, in f T t o the former suit, have been alleged by one party and enm either denied or admitted, expressly or impliedly, by ernv the other. Go 5 Explanation IV: Any matter which might and ought to 2 20 have been made a ground of defence or attack in such © former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V: Any relief claimed in the plaint which is not expressly granted by the decree shall, for 5 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the purposes of this section, be deemed to have been refused. Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons AG. interested in such right shall, for the purposes of of O this section, be deemed to claim under the personssio n so litigating. is erm ut p[s. 9] thoi Bar to further suit 12. Where a plaintiff is precluded by rules from w te dinstituting a further suit in respect of any particular cause o u trfi baction, he shall not be entitled to institute a suit in respecr dt i sof such cause of action in any court to which this Code  d o uc aepplies. rod [s. 10] re p Bona fide steps to 13.–(1) For purposes of this A bcet, a person shall be deemed resolve dispute y Act No. to have taken bona fide stekp ms ato resolve a dispute if the steps 2 of 2020 s. 96 taken by the person in roeo b lation to the dispute constitute a sincere and genuine aft the ismpt to resolve the dispute out of court, having regard to th o aert person’s circumstances and the nature and circumstances oNfo pthe dispute. (2) For pvuedr .poses of this Act, the following steps may be taken by eas ep rerson as part of bona fide steps to resolve a dispute with ahntso rther person: ( g lla ri) notifying the other person of the issues that are, or may . A nia be, in dispute, and offering to discuss them with a view za an to resolving the dispute; of T (b) responding appropriately to any notification referred nt me to under paragraph (a); ernv (c) providing relevant information and documents to the o 5 G other person to enable the other person to understand 022 the issues involved and how the dispute may be resolved; © (d) considering whether the dispute could be resolved by a process other than a court action, including reconciliation, negotiation, mediation, arbitration, warning, diversion, as applicable; 6 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (e) if a process referred under paragraph (d) is agreed to- (i) agreeing on a particular person to facilitate the process, where feasible; and (ii) attending the process; (f) if a process agreed under paragraph(e) is conducted but AG. does not result in resolution of the dispute, considering of O a different process; or ion iss (g) attempting to reconcile or negotiate with the oertmher person or otherwise engage in independent evaol p uut ation, with a view to resolving some or all th ith ew issues in dispute, or authorising a representative tout ed do so, before escalating the matter to mediation or satr ib i rbitration. (3) For avoidance of doubt, the provisioonr d s of subsection (1) shall not limit the steps that may conusctei dtute taking bona fide steps to resolve a dispute. d pro (4) The provisions of this e rs eection shall apply to all proceedings intended to be inityi ba ated in court. ok m [s. 10A] o is b When foreign 14. A  foreign judgm t oef n h t shall be conclusive as to any matter judgment not conclusive thereby directly apda rjt udicated upon between the same parties or between pa. rNt oies under whom they or any of them claim litigating undedrv er the same title except- (a) w e reh sere it has not been pronounced by a court of ts igh competent jurisdiction; r . A( llb ) where it has not been given on the merits of the case; niaa (c) where it appears on the face of the proceedings to be z Tan founded on an incorrect view of international law or of nt a refusal to recognise the law of Tanzania in cases in me n which such law is applicable; ve r o (d) where the proceedings in which the judgment was 5 G2 obtained are opposed to natural justice; ©20 (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in Tanzania. [s. 11] 7 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Presumption as to 15. The court shall presume, upon the production of any foreign judgment document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the . record, but such presumption may be displaced by proving G OA want of jurisdiction. n o f [s. 1 io mis2s] r Place of Suing ut pe o Courts in which 16. Every suit shall be instituted in the court of th wtihe lowest suits may be instituted grade competent to try it and, for the purposes otfe du this section, Act No. a court of a resident magistrate and a distriisctrt ib court shall be 4 of 2016 s. 9 deemed to be courts of the same grade: or d Provided that, the provisions of thucise d section shall not be construed to oust the general jurisdpirco dtion of the High Court. e r e [s. 13] y ba Suits to be 17. Subject to the pecuniaryk mo or other limitations prescribed by instituted where subject matter any law, suits- is bo situate (a) for the recove th orf y of immovable property with or without GN. No. 375 of 1966 rent or profiartt p s; (b) for the .pNa o rtition of immovable property; (c) for erfvo erdeclosure, sale or redemption in the case of a m reo srtgage of or a charge upon immovable property; s (drig) h tfor the determination of any other right to, or interest All . in, immovable property; niaa (e) for compensation for a wrong to immovable property; or nz Ta (f) for the recovery of movable property actually under t o f n distrait or attachment, nm e shall be instituted in the court within the local limits of whose er ov jurisdiction the property is situate: 5 G2 Provided that, a suit to obtain relief respecting, or 20© compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate or in the court within the local limits 8 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] of whose jurisdiction the defendant actually and voluntarily resides, carries on business or personally works for gain. Explanation: In this section “property” means property situated in Tanzania. [s. 14] AG. of O Suits for 18. Where a suit is to obtain relief respecting, or compensatiosnio n immovable is property for wrong to, immovable property situate within rmthe situate within jurisdiction of different courts, the suit may be instituut t peed in jurisdiction of different courts any court within the local limits of whose jurisdwiict htoion any portion of the property is situate if, in respect otfe dt he value of the subject matter of the suit, the entire claimt riib u s s cognisable by such court. di d o r ce [s. 15] u rod Place of 19.–(1) Where it is alleged to be r eu p ncertain within the local institution of suit where local limits limits of the jurisdiction of w be ayhich two or more courts any of jurisdiction immovable property is situa ok tme, any one of those courts may, if of courts are o uncertain satisfied that there is grosu bnd for the alleged uncertainty, record i a statement to that e th offf ect and thereupon proceed to entertain and dispose of any rst pa uit relating to that property, and its decree in the suit sha o . lNl have the same effect as if the property were situate with d rivne the local limits of its jurisdiction: Providrees e d that, the suit is one with respect to which the courtig his ts competent as regards the nature and value of the suit to Aell x rercise jurisdiction. nia . (2) Where a statement has not been recorded under a an z subsection (1), and an objection is taken before an appellate or T t o f revisional court that a decree or order in a suit relating to such enm property was made by a court not having jurisdiction where ern the property is situate, the appellate or revisional court shall Gov not allow the objection unless in its opinion there was, at the 5 20 2 time of the institution of the suit, no reasonable ground for © uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice. [s. 16] 9 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Suits of 20. Where a suit is for compensation for wrong done to compensation for wrongs to person the person or to movable property, if the wrong was done or movables within the local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works . for gain, within the local limits of the jurisdiction of another AG O court, the suit may be instituted at the option of the plaintiff in f n o either of the said courts. io iss [se.r m17] ut p o Other suits to be 21. Subject to the limitations aforesaid, every su th wiit shall be instituted where defendant resides instituted in a court within the local limits of whosuete j durisdiction- or cause of action (a) the defendant, or each of the defend rib arises isatnts where there are more than one, at the time of th eor cdommencement of the suit, actually and voluntari ed ulyc resides, or carries on business, or personally workpsro f dor gain; (b) any of the defendants, whe rrebe e there are more than one, at the time of the commeanyc ement of the suit, actually and m voluntarily resides,o okr carries on business, or personally works for gain,h isp brovided that in such case either the leave of the f t t coourt is given or the defendants who do r not residoe po ar carry on business, or personally work for gain, ads. Naforesaid, acquiesce in such institution; or (c) these cr vaeuse of action, wholly or part, arises. Extsp rl eanation I: Where a person has a permanent dwelling rig h at one place and also a temporary residence at ll a. A another place, he shall be deemed to reside at both ni za places in respect of any cause of action arising at the n Ta place where he has such temporary residence. f nt o Explanation II: A corporation shall be deemed to carry me n on business at its sole or principal office in Tanzania, er ov or, in respect of any cause of action arising at any G 25 place where it is, and where has a subordinate office, 0 ©2 at such place. [s. 18] 10 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Objections to 22. Objection as to the place of suing shall not be allowed jurisdiction by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and, in all cases where issues are settled, at or . before such settlement, and unless there has been a consequent OAG failure of justice. of n [s. 1 io is9s] erm Power to transfer 23. Where a suit may be instituted in any one of two ourt pmore suits which may o be instituted in district courts within the area of the jurisdiction of a itw chourt of a more than one resident magistrate, and is instituted in one of suucteh d courts, not court being the court of the resident magistrate- tribis (a) if, before any evidence has been toar kden all the parties to the suit consent to the suit buceei dng transferred to the court of such resident magi d psrotrate, the court in which the suit has been institute r bed eshall record the fact of such consent and shall tranasym it the record to such resident m magistrate who sha k ooll in due course try the suit; (b) on the applica b htiiso n to such resident magistrate of a party to the osf t ut it and after notice to the parties and r after conos ipd a eration of objections, if any, of any party such re. sNd ident magistrate may, at any stage before any evisdere vence has been taken in the suit, transfer the suit for tst rr eial by himself; or (lc h ri)g on his own motion, such resident magistrate may, at l a. A any stage before evidence has been taken in the suit, an i z transfer the suit for trial by himself: an f T Provided that, the exercise of the powers conferred by o nt paragraph (b) or (c) hereof shall be subject to such limitations rnm e or conditions, if any, as the Chief Justice shall impose by rules ov e of court and provided further that this section shall not affect G 25 the powers of the High Court under section 24. 0 ©2 [s. 20] 11 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] General power 24.–(1) On the application of any of the parties and after of transfer and withdrawal notice to the parties and after hearing such of them as desire to be heard, or on its own motion without such notice, the High Court may at any stage- . (a) transfer any suit or other proceeding pending before it AG O for trial or disposal to any court subordinate to it and n o f competent to try or dispose of the same; or io iss (b) withdraw any suit or other proceeding pending ipne r many court subordinate to it, and- ou t (i) try or dispose of the same; ith w (ii) transfer the same for trial or disposuatle dto any court subordinate to it and competenti tro ib s try or dispose of the same; or d or (iii) retransfer the same for turieadc l or disposal to the court from which it wapsr ow d ithdrawn. (2) Where any suit or procee e ed ring has been transferred or withdrawn under subsection a(y1 b), the court which thereafter tries such suit may, subjeockt mto any special directions in the case of an order of transf ebrois , either re-try it or proceed from the point at which it was th o ft ransferred or withdrawn. (3) The powers p oa rft transfer and withdrawal of suits conferred by this section. Na ond section 23 shall be in addition to and not in substitutrvieo dn for the powers contained in Part V of the Cap. 11 Magistrat e ree ss’ Courts Act. ts rig h [s. 21] . A ll ia an Institution of Suits nz Institution o a ff T 25. Every suit shall be instituted by a presentation of a plaint or suits nt o e in such other manner as may be prescribed. rnm [s. 22] ve Go 25 Vexatious 26. Without prejudice to the right to access a court or other 20 or frivolous © proceedings dispute resolution mechanisms, no person shall engage prohibited in proceedings for the purposes of harassing or subduing Act No. 2 of 2020 s. 97 another person. [s. 22A] 12 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Power to make 27. Where, on an application made by- orders Act No. (a) the Attorney General; 2 of 2020 s. 97 (b) if the person has made a vexatious application against another person, that other person; or . (c) a person who has a sufficient interest in a matter, AG under this section, the court is satisfied that any person O n o f has habitually and persistently and without any reasonablseiois ground instituted vexatious proceedings, whether aloneerm or in concert with any other person and whether in thuet o pcourt or in any other dispute resolution mechanism, an ith wd whether against the same person or against different persuoten d s, the court may, after hearing that person or giving himist r iabn opportunity of being heard, make an order declaring osru d ch person to be a vexatious litigant. ed uc pro d [s. 22B] re Restraint of 28. A  suit shall not, except wiyt b e a h leave of the High Court be proceedings Act No. instituted by or on behalf okf m a vexatious litigant in any court, o 2 of 2020 s. 97 and any suit instituted by bhos im in any court before the making of i an order under this Poaf r tht shall not be continued by him without the leave, and sucpah rt leave shall not be given unless the High Court is satisfieNdo . that the suit is not an abuse of the process of the courtr vaen d d that there is a prima facie ground for the suit. se re [s. 22C] ts gh All r i Summons and Discovery ia. Summons to n za 29. Where a suit has been duly instituted, a summons may be defendant n f T a issued to the defendant to appear and answer the claim and nt o e may be served in the manner prescribed. rnm [s. 23] ve G o 02 5 Service of 30.–(1) A summons may be sent for service to another court 2 summons where © defendant in Tanzania within the local limits of whose jurisdiction the resides outside defendant may be believed to be residing. jurisdiction of court (2) The court to which such summons is sent shall, upon receipt thereof, proceed as if it has been issued by such 13 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] court and shall then return the summons to the court of issue together with the record, if any, of its proceedings with regard thereto. [s. 24] G. Power to order 31. Subject to such conditions and limitations as may be A of O discovery and like prescribed, the court may, at any time, either of its own motionio n s or on application of any party- is rm (a) make such orders as may be necessary or reasuto pneable in all matters relating to the delivery and ansitwhoering of interrogatories, the admission of documetendt ws and facts and the discovery, inspection, producti u toribn, impounding and return of documents or othoe rd isr material objects producible as evidence; ce d (b) issue summonses to persoduro n whose attendance is required either to givreepe evidence or to produce documents or such othey a rb objects as aforesaid; or (c) order any fact to beo kp mroved by affidavit. bois [s. 25] f th Summons to 32. The provisionarst oof sections 29 and 30 shall apply to witness summonses toN og pive evidence or to produce documents or other materviaedl . objects. er es [s. 26] r 33. Thigh ts Penalty for l r e court may compel the attendance of any person to default l wia.h Aom a summons has been issued under section 31 and for n za that purpose may- n f T a (a) issue a warrant for his arrest; t o en (b) attach and sell his property; rnme (c) impose a fine upon him not exceeding one thousand ov G shillings; or 02 5 (d) order him to furnish security for his appearance and in ©2 default, commit him as a civil prisoner. [s. 27] 14 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Delivery of 34. After the case has been heard, the court shall deliver a decision Act No. decision in open court as soon as possible, but in any case it 2 of 2005 s. 45 shall not exceed ninety days of which due notice shall be given to the parties or their advocates, if any. . [s. 28] OAG of n Interest iss io rm Interest on 35. The Chief Justice may make rules prescribing the p u tr a ete of judgment debts interest which shall be carried by judgment debts andith,o without prejudice to the power of the court to order in w tedterest to be paid upon the date of judgment at such rates u t riabs it may deem s reasonable, every judgment debt shall carroyr diinterest at the rate prescribed from the date of the delivery d ce of the judgment until the same is be satisfied. du pro e r e [s. 29] b ay k Cmosts oo Costs 36.–(1) Subject to suc b thhi sconditions and limitations as may be prescribed and to thrte o fp rovisions of any law from the time being in force, the costs p ao of, and incidental to, all suits shall be in the discretion of dt.h Ne court and the court shall have full power to e determine ebrvs y whom or out of what property and to what extent such cotss rt es are to be paid, and to give all necessary directions for igh llt rhe purposes aforesaid, and the fact that the court has no jiau. r Aisdiction to try the suit shall be no bar to the exercise of an nz such powers. f T a (2) Where the court directs that any costs shall not follow o en t the event, the court shall state its reasons in writing. rnm (3) The court may give interest on costs at any rate not ov e G exceeding seven percent per annum and such interest shall be 25 0 added to the costs and shall be recoverable as such. ©2 [s. 30] 15 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] PART III EXECUTION General G. Application to 37. The provisions of this Code relating to the execution of A f Oorders decrees shall, so far as they are applicable, be deemed to apply n oio to the execution of orders. miss t [ps e.r 31] ouh Definition of 38. The expression “court which passed a decree” it d o wr words to “court which passed decree” that effect shall, in relation to the execution ofi bdue tecrees, unless there is any thing repugnant in the subj str edci t or context, be deemed to include- ord (a) where the decree to be executecedu d has been passed in the exercise of appellate jurrepis rodiction, the court of first instance; and be y (b) where the court of fi rms at instance has ceased to exist or to have jurisdictio bno o tko execute it, the court which, if the suit wherein theh isf t decree was passed was instituted at the time of makarit nog the application for the execution of the decree, wNoo puld have jurisdiction to try such suit. ed . [s. 32] erv res hts Court by which Decrees may be Executed l ri g Courts by which 39. A. lA decree may be executed either by the court which passed decrees may be ia executed nit or by the court to which it is sent for execution. nz a Ta [s. 33] f nt o Transmfeer of decree 40.–(1) The court which passed a decree may, on the ernv application of the decree-holder, send it for execution to 5 G o another court where- 022 (a) the person against whom the decree is passed actually © and voluntarily resides or carries on business or personally works for gain, within the local limits of the jurisdiction of such other court; 16 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) such person has no property within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other court; . (c) the decree directs the sale or delivery of immovable AG O property situate outside the local limits of the n o f jurisdiction of the court which passed it; or siois (d) the court which passed the decree considers fopre rmany other reason, which it shall record in writing, otuh t at the decree should be executed by such other courith w t. (2) The court which passed a decree mayu,te don its own motion, send it for execution to any subo ib isrtrdinate court of competent jurisdiction. or d ce d u [s. 34] rodp Result of 41. The court to which a decree r eis sent for execution shall execution e y proceedings to be certify to the court which pasase bd it the fact of such execution certified or, where the former couokr t m fails to execute the same, the circumstances attending bo is such failure. of th [s. 35] pa rt Powers of court 42. The court. Ne ox ecuting a decree sent to it shall have the in executing transferred same powervres d in executing such decree as if it had been decree passed b se rey itself, and all persons disobeying or obstructing the exhetsig cution of the decree shall be punishable by such court in. At llh r e same manner as if it had passed the decree and its noiaa rder in executing such decree shall be subject to the same nz Ta rules in respect of appeal as if the decree had been passed of t by itself. en nm [s. 36] r ve 5 G o Precepts 43.–(1) Upon the application of the decree-holder, the court 20 2 which passed the decree may, whenever it thinks fit, issue a © precept to any other court which would be competent to execute such decree to attach any property belonging to the judgment debtor and specified in the precept. 17 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) The court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree: Provided that, no attachment under a precept shall continue for more than two months unless the period of AG. attachment is extended by an order of the court which O of passed the decree or unless, before the determination of sucshio n attachment, the decree has been transferred to the cour is rtm by which the attachment has been made and the decreeu-th poe lder has applied for an order for the sale of such propertityhw .o d te [s. 37] trib u Questions to be Determined by Court Eoxr deicsuting Decree d e Questions to be 44.–(1) All questions arising betweeodn u cthe parties to the suit determined by r Court executing in which the decree was passed, roep r their representative, and decree relating to the execution, disy cbh e arge or satisfaction of the a decree, shall be determinedk bmy the court executing the decree and not by a separate susi t. oob (2) The court may,f tshu i bject to any objection as to limitation or jurisdiction, treaartt o a proceeding under this section as a suit or a suit as a pr Nooc peeding and may, if necessary, order payment of any additvioedn . al court fees. (3) Wheeres re a question arises as to whether any person is or is not tths h er representative of a party, such question shall, for the purllp rio gses of this section, be determined by the court. ia. A n [s. 38] za an of T Limit of Time for Execution nt e Exeercnu mtion barred 45.–(1) Where an application to execute a decree, not being oinv certain cases G a decree granting an injunction, has been made no order for 02 5 the execution of the same decree shall be made upon any fresh ©2 application presented after the expiration of twelve years from– (a) the date of the decree sought to be executed; or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to 18 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. . (2) This section shall not be deemed- AG (a) to preclude the court from ordering the execution f O n o of a decree upon an application presented after thseiois expiration of the said term of twelve years whereer mthe p judgment debtor has, by fraud or force, preveonut t ed the execution of the decree at some time wit whi tihn twelve years immediately before the date of the ted b aupplication; or (b) to limit or otherwise affect the operatsitor i i n of article 183 d of the First Schedule to the Indiad no r Limitation Act, as applied to Tanzania. ce rod u ep [s. 39] r be Transferee and L y meagal Representatives k Transferee 46. A  transferee of a decoro b ee shall hold the same subject to the equities, if any, whhisf t ich the judgment debtor might have enforced against tharet ooriginal decree-holder. o p N [s. 40] . ed Legal 47.–(1) Wehrves ere a judgment debtor dies before the decree has representative been fhutsl lry satisfied, the holder of the decree may apply to the coullr rti g which passed it to execute the same against the legal nriae . pAresentative of the deceased. nz a (2) Where the decree is executed against such legal f T a o representative, he shall be liable only to the extent of the t en property of the deceased which has come to his hands and has rnme not been duly disposed of, and for the purpose of ascertaining ov G such liability, the court executing the decree may, on its own 02 5 motion or on the application of the decree-holder, compel such ©2 legal representative to produce such accounts as it thinks fit. [s. 41] 19 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Procedure in Execution Powers of court to 48. Subject to such conditions and limitations as may be enforce execution prescribed, the court may, on the application of the decree- holder, order execution of the decree- AG. (a) by delivery of any property specifically decreed; f O (b) by attachment and sale or by sale without attachmentio n o of any property; issm (c) by arrest and detention in prison; pe r t (d) by appointing a receiver; or u ith o (e) in such other manner as the nature of the r eedlwief granted t may require. u str ib r d i [s. 42] d oe Enforcement 49.–(1) Where a decree is passed agadiun c st a party as the legal of decree against legal representative of a deceased personpr ore and the decree is for the representative payment of money out of the p e yr boperty of the deceased, it may be executed by the attachme a k nmt and sale of any such property. (2) Where no such p o rboperty remains in the possession of the judgment debtor af nth ids he fails to satisfy the court that he has duly applied such parrt ooperty of the deceased as is proved to have come into his poo spsession, the decree may be executed against the judgmenetd d . Nebtor to the extent of the property in respect of which he hearvs s failed so to satisfy the court in the same manner as if thets dr eecree had been against him personally. rig h ll [s. 43] A nia . za Arrest and Detention n f T a Arrest andt o 50.–(1) A  judgment debtor may be arrested in execution of detentioen a decree at any hour and on any day and shall, as soon as ern m v practicable, be brought before the court, and the court may 5 G o order his detention: 022 Provided that, for the purposes of making an arrest under © this section- (a) no dwelling-house shall be entered after sunset and before sunrise; 20 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, AG. he may break open the door of any room in which he has of O n reason to believe the judgment debtor is to be found; o io isrs (c) if the room is in the actual occupancy of a woman rm pe who is not the judgment debtor and who, accordinogu t to her religion or local custom, does not appear in wpi tuh blic, the d officer authorised to make the arrest shablul tge ive notice to her that she is at liberty to withdraw adins trdi , after allowing a reasonable time for her to with r dd oraw and giving her reasonable facility for withdracwedu ing, may enter the room for the purpose of makriong the arrest: Provided further that, wheree r ep b the decree in execution of which a judgment debtor is arraey m sted is a decree for the payment of money, and the judgm k oeont debtor pays the amount of the decree and the costs ofh ist hbt e arrest to the officer arresting him, such officer shall atr to on f ce release him. (2) Where a j upao dgment debtor is arrested in execution of a decree for t N dh. e payment of money and brought before the court, the crvoee urt shall inform him that he may apply to be declaredr eass n insolvent, and that he will be discharged if he has not cohmt rig mitted any act of bad faith regarding the subject of the ap ll . Aplication and if he complies with the provisions of the law of ani iansolvency for the time being in force. nz Ta (3) Where a judgment debtor expresses his intention to of nt apply to be declared an insolvent and furnishes security, to the nm e satisfaction of the court, that he will within one month so apply r ov e and that he will appear, when called upon, in any proceeding 5 G2 upon the application or upon the decree in execution of which ©20 he was arrested, the court shall release him from arrest and, if he fails so to apply and to appear, the court may either direct the security to be realised or commit him as a civil prisoner in execution of the decree. [s. 44] 21 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Subsistence 51. The Chief Justice may make rules prescribing scales of allowance monthly allowances payable for the subsistence of judgment- debtors. [s. 45] . OAG Detention and 52.–(1) A person detained as a civil prisoner in execution of a of release decree shall be so detained- sio n (a) where the decree is for the payment of a sum of meoniesrm y exceeding one hundred shillings, for a periodu t pof six o months; and ith w (b) in any other case, for a period of six weekutse: d Provided that, he shall be released fromst r i i sbuch detention before the expiration of the said period oofr dsix months or six weeks - edc (i) on the amount mentionedduro in the warrant for his detention being paied r etpo the officer in charge of the prison; ay b (ii) on the decree ka o gmainst him being otherwise fully satisfied; bo is (iii) on the reoqf thuest of the person on whose application he has pa rbt een so detained; or (iv) on. N ot he omission by the person on whose rvae dpplication he has been so detained to pay res e subsistence allowance: Prohvtsi ded further that, he shall not be released from such dete nrigAll tion under clause (ii) or clause (iii) without the order of ntiah . e court. za an (2) A judgment debtor released from detention under this of T section shall not, merely by reason of his release, be discharged en t from his debt. ern m (3) Where a judgment debtor has been released from ov G detention under this section before the expiration of the period 25 20 of six months or six weeks for which he was ordered to be © detained, and the decree against him has not been fully satisfied he shall, if he was released on the request of the person on whose application he was detained but not otherwise, be liable to be re- arrested under the decree in execution of which he was detained. 22 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (4) A judgment debtor who has been re-arrested under the provisions of subsection (3) shall be detained as a civil prisoner for the remainder of the period of six months or six weeks for which he would have been detained under the provisions of subsection (1) if he had not been released from such detention AG. under the proviso to that subsection: O of Provided that, he shall be released from such detentiosnio n before the expiration of the remainder of the said period orfm s isix months or six weeks in any of the circumstances spec p uitfi eed in the first proviso to subsection (1). tho w i ted [s. 46] u trib Release on 53.–(1) At any time after a warrant for the ar drisr est of a judgment grounds of illness debtor has been issued, the court may ca o edncel it on the ground c of his serious illness. u rod (2) Where a judgment debtor p hreas been arrested, the court may release him if, in its opinioyn b, e he is not in a fit state of health to be detained as a civil prisomnak er. (3) Where a judgment b do oebtor has been committed as a civil prisoner, he may be re is f tlheased- (a) by the offi o acrter in charge of the prison in which he is confi Nnoe pd, on the ground of the existence of any infecteido . v us or contagious disease; or (b) bry etres he committing court, or any court to which that htsc ourt is subordinate, on the ground of his suffering l ri g Al from any serious illness. . nia (4) A judgment debtor released under this section may be za an re-arrested but the period of his detention as a civil prisoner f T o shall not in the aggregate exceed that prescribed by section 52. en t [s. 47] ern m Gov Attachment 02 5 ©2 Property liable to 54.–(1) The following property is liable to attachment and attachment and sale in execution sale in execution of a decree, namely, lands, houses or other of decree buildings, goods, money, banknotes, cheque, bills of exchange, Act No. 11 of 1976 Sch. promissory notes, Government securities, bonds or other securities for money debts, shares in a corporation and, save as 23 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the . name of the judgment debtor or by another person in trust for G OA him or on his behalf: n o f Provided that, the following shall not be liable to suicssh io attachment or sale: erm (a) the necessary wearing-apparel, cooking p ouv t essels, beds and bedding of the judgment debto wri, t hhis wife and children, and such personal orna d utme ents as, in accordance with religious usage, cannotrtibis be parted with by any woman; d d o r (b) tools of artisans, and, where thuec ejudgment debtor is an agriculturist, his implemenept rso dof husbandry and such cattle and seed-grain a r sb emay, in the opinion of the court, be necessary to eany m able him to earn his livelihood as such; ok bo (c) houses and othheirs t buildings, with the materials and the sites thereorf f t oand the land immediately appurtenant thereto aon pd a necessary for their enjoyment, belonging to an eadg . Nriculturist and occupied by him; (d) an rv sye land used for agricultural purposes by a village, an U rets jamaa Village, a co-operative society, or an individual rig h ll whose livelihood is wholly dependent upon the use of ia. A such land; an nz (e) any residential house or building, or part of a house or Ta of building occupied by the judgment debtor, his wife and nt e dependant children for residential purposes; ern m (f) books of account; v G o (g) a mere right to sue for damages; 25 20 (h) the salary of an employee to the extent of- © (i) the whole of the salary where it does not exceed one hundred and fifty shillings monthly; (ii) one hundred and fifty shillings monthly where the salary exceeds one hundred and fifty shillings and 24 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] does not exceed two hundred and fifty shillings and does not exceed two hundred and twenty-five shillings monthly; or (iii) two-thirds of the salary in any other case; (i) the expense allowances of any employees; G. A (j) an expectancy of succession by survivorship or other f O o merely contingent or possible right or interest; n iss io (k) a right to future maintenance; or erm (l) any other property declared by any written lawou t np ot to be liable to attachment. with Explanation: The particulars mentioned in cteladu sses (f) and (g) are exempt from attachment w ib ishtr ether before or after they are actually payable. d or (2) Subject to the provisions of an d uyce written law, nothing in this section shall be deemed to preox dempt houses and other buildings, which the materials an ree d the sites thereof and the lands immediately appurtenanaty t bhereof and necessary for their enjoyment, from attachmenokt mor sale in execution of decrees for rent of any such house, o ibs building, site or land. (3) For purposes oof t hthis section- “expense allowancaret p ” means any sum paid to an employee by an emp.l No oyer which is a bona fide payment to meet an expen d rvsee incurred or to be incurred by the employee e whol lrye s and exclusively in or for the purposes of the peigrhr ftos rmance of the duties of his office or employment or Aill . n discharging functions authorised by the employer; and an“ iasalary” includes any sum of money granted to any employee nz Ta by an employer other than an expense allowance. t o f n [s. 48] me ernSveizure of 55.–(1) A  person executing any process under this Code G oproperty in 5 dwelling house directing or authorising seizure of movable property shall not 20 2 © enter any dwelling-house after sunset and before sunrise. (2) An outer door of a dwelling-house shall not be broken open unless such dwelling-house, is in the occupancy of the 25 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] judgment debtor and he refuses or in any way prevents access thereto, but when the person executing any such process had duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be. AG. (3) Where a room in a dwelling-house is in the actual of O occupancy of a woman who, according to her religion or locasilo n custom, does not appear in public, the person executingr mt ihs e process shall give notice to such woman that she is at e utl i pberty to withdraw, and, after allowing reasonable time fitohor her to withdraw and giving her reasonable facility for twedi wthdrawing, he may enter such room for the purpose of seiztirnib ug the property, using at the same time every precaution cor nd issistent with these provisions, to prevent its clandestine remdo oe val. du c ro [s. 49] re p Property attached 56.–(1) Where property not iyn b ethe custody of any court is in execution of decrees of several under attachment in execu a kt imon of decrees of more than one courts court, the court which s bhoa oll receive or realise such property and shall determine a is fn thy claim thereto and any objection to the attachment thereoaf,rt sohall be the court of the highest grade, or, where there is no N pdifference in grade between such courts, the court under . v wedhose decree the property was first attached. (2) Th r resis e section shall not be deemed to invalidate any proceehdts ing taken by a court executing one of such decrees. rigll [s. 50] A nia . Private alienationz an 57. Where an attachment has been made, any private transfer of property aftTear attachment to ft o be or delivery of the property attached or of any interest therein void en and any payment to the judgment debtor of any debt, dividend ern m or other moneys contrary to such attachment, shall be void as v G o against all claims enforceable under the attachment. 5 20 2 Explanation: For the purposes of this section, claims © enforceable under an attachment include claims for the rateable distribution of assets. [s. 51] 26 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Sale Purchaser’s title 58. Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when G. the property is sold and not from the time when the sale OA f becomes absolute. o ion [s. ss m5i2] er t p Suit against 59.–(1) A  suit shall not be maintained against anyo uperson purchaser not th maintainable claiming title under a purchase certified by the cod uw irt in such on ground of manner as may be prescribed on the ground, thibaut t ethe purchase purchase being on behalf of was made on behalf of the plaintiff or on biestd hr alf of someone plaintiff through whom the plaintiff claims. d o r (2) This section shall not bar a suidtu cteo obtain a declaration that the name of any purchaser epc reortified as aforesaid was inserted in the certificate fraudu r belently or without the consent of the real purchaser, or inmtear y fere with the right of a third person to proceed againbso otk that property, though ostensibly sold to the certified pu thirschaser, on the ground that it is liable to satisfy a claim ofr ts ou f ch third persons against the real owner. o p a [s. 53] N d. erv e s Distribution of Assets re Proceeds of 60.–(1h)ts Where assets are held by a court and more than one execution sale g to be rateably peArlsl ori n before the receipt of such assets, made application distributed tiao.n the court for the execution of decrees for the payment of among decree- za holders an money passed against the same judgment debtor and have of T t not obtained satisfaction thereof, the assets, after deducting n me the costs of realisation, shall be rateably distributed among all ernv such persons: o 25 G Provided that- 20 (a) where any property is sold subject to a mortgage or © charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale; (b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the court may, 27 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the . property sold; OAG (c) where any immovable property is sold in execution n o f of a decree ordering its sale for the discharge of iasnios incumbrance thereon, the proceeds of sale esrhmp all be applied- t ou (i) in defraying the expenses of the sale; with (ii) in discharging the amount due undueter d the decree; (iii) in discharging the interest and pistrr iibncipal moneys due on subsequent incumbra onr cde, if any; and, (iv) rateably among the holdueredc s of decrees for the payment of money agaprion dst the judgment debtor who have, prior to thee r esale of the property, applied to the court whiacyh b passed the decree ordering such sale for eoxk e mcution of such decrees and have not obtaineisd b osatisfaction thereof. (2) Where all or f ath o ny of the assets liable to be rateably distributed under p tah rt is section are paid to a person not entitled to receive the s.a Nm o e, any person so entitled may sue such person to compel hrviem d to refund the assets. (3) Th reis se section shall not affect any right of the Government. igh ts [s. 54] ll r A nia . a Resistance to Execution nz Resistance to T a f 61. Where the court is satisfied that the holder of a decree for execution o en t the possession of immovable property or that the purchaser rnm of immovable property sold in execution of a decree has been ov e G resisted or obstructed in obtaining possession of the property 5 02 by the judgment debtor or some person on his behalf and that ©2 such resistance or obstruction was without any just cause, the court may, at the instance of the decree-holder or purchaser, order the judgment debtor or such other person to be detained as a civil prisoner for a term which may extend to thirty days 28 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] and may further direct that the decree-holder or purchaser be put into possession of the property. [s. 55] PART IV AG. of O INCIDENTAL PROCEEDINGS sio n Commissions mis r t p e Power of 62. Subject to such conditions and limitations ash om u ay be court to issue t commissions prescribed, the court may issue a commission- d w i (a) to examine any person; te rib u (b) to make a local investigation; t r d is (c) to examine or adjust accounts; or o ed (d) to make a partition. c du pro re [s. 56] be Commission to 63.–(1) A commission for th me a eyxamination of any person may another court be issued to any court, otbhoe ork than the High Court, in Tanzania having jurisdiction in is th the place in which the person to be examined resides. f rt o (2) Every couor tp areceiving a commission for the examination of any persond u. N e nder subsection (1) shall examine him or cause him to bes eer vxamined pursuant thereto, and the commission, when i re tts has been duly executed, shall be returned together with h ll r i gthe evidence taken under it to the court from which it wia.a As issued, unless the order for issuing the commission has za notherwise directed, in which case the commission shall be an f T returned in terms of such order. nt o [s. 57] e rnm oLve etter of request 64. In lieu of issuing a commission, the court may issue a G 25 letter of request to examine a witness residing at any place 0 ©2 outside Tanzania. [s. 58] 29 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Commissions 65. The provisions as to the execution and return of issued by foreign courts commissions for the examination of witnesses shall apply to commissions issued by foreign courts for the examination of persons residing in Tanzania. . [s. 59] AG O n o f PART V iss io SUITS IN PARTICULAR CASES pe rm uto Suits Against Public Officers ith d w Exemption 66. In a suit instituted against a public officer irn u rteib espect of any from arrest and personal act purporting to be done by him in his offi cdiisa t l capacity- r appearance of (a) the defendant shall not be liaebdl eo to arrest nor his public officers property to attachment otherwduo icse than in execution of a decree; and pr re (b) where the court is satisfi beey d that the defendant cannot absent himself fromk a hmis duty without detriment to the public service, it b os ohall exempt him from appearing in person. his t rt o f a [s. 60] o p . N ve d Suits by Aliens and Foreign States er 67.–(1) A re s When aliens may hts lien enemies residing in Tanzania with the permission sue of th riegll Government and alien friends, may sue in the courts oiaf.   ATanzania. za n n (2) An alien enemy residing in Tanzania without such f T a permission, or residing in a foreign country, shall not sue in nt o e any of such courts. ern m [s. 61] ov 25 G 0 When foreign 68.–(1) A  foreign State which has been recognised by the ©2 State may sue Government of Tanzania may sue in any court of Tanzania if the object of the suit is to enforce a private right vested in the head of such State or in any officer of such State in his public capacity. 30 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) Every court shall take judicial notice of the fact that a foreign State has or has not been recognised by the Government of Tanzania. [s. 62] G. A Interpleader f O n o sio Where 69. Where two or more persons claim adversely to one anothisrm er interpleader suit may be instituted the same debt, sum of money or other property, movuat b pele or immovable, from another person who claims noithow interest therein other than for charges or costs and who is te dready to pay or deliver it to the rightful claimant, such o ibu stthr er person may institute a suit of interpleader against all tohr e d iclaimants for the purpose of obtaining a decision as to thced person to whom the payment or delivery shall be made an u pro dd of obtaining indemnity for himself: ree Provided that, where any suaiyt b is pending in which the rights of parties can properly be doek c mided, no such suit of interpleader shall be instituted. bo is of th [s. 63] pa rt o d. N PART VI erv e s SPECIAL PROCEEDINGS ts re l rAig hrbitration, Conciliation, Negotiation and Mediation2 l A Arbitration n7ia0 . . Save in so far as is otherwise provided by the Arbitration Cap. 15 za an Act, or by any other law for the time being in force, all references f T o to arbitration, whether by an order in a suit or otherwise, and nt me all proceedings thereunder shall be governed by the provisions ernv contained in the Second Schedule to this Act. 5 G o [s. 64] 02 ©2 Conciliation, 71.–(1) Without prejudice to the provisions of section 70, negotiation and mediation parties may settle their disputes out of court by way of Act No. conciliation, negotiation or mediation. 1 of 2020 s. 6 2 Amended by Act No. 1 of 2020, s.5 31 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) For purposes of facilitating conciliation, negotiation and mediation, the Minister may make rules prescribing for procedures, forms and other matters relating to conciliation, negotiation and mediation. (3) Where parties reach an agreement upon settlement of AG. their disputes, they may register their agreement in a court of of O competent jurisdiction. ions (4) The provisions of this section shall not apply to is rmany matter for which the manner and procedure of settlemuet n pet has been stipulated in any other written law. o with ted [s. 64A] u trib Accreditation 72.–(1) The Minister shall establish and mra di ins tain a system of matters Act No. accreditation for reconciliators, negotieadt oors, mediators and c 2 of 2020 s. 98 arbitrators and keep a register of accrorde udited persons who may be involved in facilitation of re p reconciliations, negotiations, mediations and arbitrations. e ay b (2) A  person shall not k pmractice for fee as reconciliator, negotiator, mediator or boa orbitrator unless such a person is accredited in accordafnthc is e with subsection (1). (3) It shall be an o a rot ffence to practice for fee as a reconciliator, negotiator, me dNoi aptor, arbitrator or any other category of a dispute resovleudt .ion practitioner without being accredited. (4) A peseer rson who commits an offence under this section on convic si orht n shall be liable to a fine not exceeding five million shil g lll irings or imprisonment for a term not exceeding two years oiar. Ato both. an nz (5) The Registrar may, where the accused person admits Ta of the commission of an offence under this section, compound nt e the offence and impose a fine of not more than five million ern m shillings or not exceeding one half of the fine imposed under ov G subsection (4). 02 5 (6) The Minister may, on advice in writing by the Registrar, ©2 extend the accreditation system for reconciliators, negotiators, mediators and arbitrators to other categories of the dispute resolution providers. [s. 64B] 32 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Appointment 73.–(1) There shall be appointed within the Ministry and functions of Registrar responsible for legal affairs a person not below the rank of a Act No. Principal State Attorney to be the Registrar of reconciliators, 2 of 2020 s. 98 negotiators, mediators and arbitrators. . (2) The Registrar shall perform the following functions: AG (a) determine the criteria for the certification and of O n accreditation of reconciliators, negotiators, mediatoisrss io and arbitrators; pe rm (b) propose rules for the certification and accreditoau tt ion of reconciliators, negotiators, mediators and ar wbi tihtrators; (c) maintain a register of qualified urtee d b conciliators, negotiators, mediators and arbitrators ri dis ;t (d) issue annual or periodic practicdi no rg certificate to an accredited reconciliator, neg ce duotiator, mediator and arbitrator; and ep ro (e) enforce such code of bep r ractice for reconciliators, negotiators, mediato ay mrs and arbitrators, as may be prescribed. k bo o thi s [s. 64C] f t o Societies and 74.–(1) Accrediotedar p reconciliators, negotiators, mediators or regulations Act No. arbitrators shda. l Nl be entitled to establish different societies in e 2 of 2020 s. 98 accordancee rvwith the law regulating establishment of societies. (2) Ares ts   society duly established pursuant to subsection (1) shal lr ign h otify the Registrar who shall register the society in th. eA llRegister. ia za n (3) A  society established pursuant to this section shall Tan comply with the minimum standards for reconciliators, ofnt negotiators, mediators or arbitrators. me n (4) The Minister may make regulations prescribing for- er ov (a) minimum standard for reconciliators, negotiators, G 25 mediators or arbitrators; ©20 (b) rules of procedures for reconciliation, negotiations and mediations; (c) code of conduct and practice for reconciliators, negotiators, mediators or arbitrators; 33 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (d) forms or any other templates or electronic based system for purposes of this Act; or (e) any other areas that he deems proper to prescribe procedures for purposes of this Act. . [s. 64D] AG O n o f Special Case sio mis Power to state 75. Where a person agrees in writing to state a case ft o errp the case for opinion of court opinion of the court, then the court shall try and deotuith ermine the same in the manner prescribed. d w ibu te r [s. 65] st di Suits Relating to Public Mda o r e tters c Public nuisance 76.–(1) In the case of a public nuisanrodc ue, the Attorney General p or two or more persons having obe tra eined the consent in writing of the Attorney General, may i anys btitute a suit, though no special damage has been caused, fook r m a declaration and injunction or for such other relief as ma byois be appropriate to the circumstances of the case. of th t (2) This sectio pna rshall not be deemed to limit or otherwise affect any righ o . Nt of suit which may exist independently of its provisio d enrvs e. s re [s. 66] ts igh Public charities 77 ll r A. In the case of any alleged breach of any express or nciao . nstructive trust created for public purposes of a charitable za an or religious nature, or where the direction of the court is f T t o deemed necessary for the administration of any such trust, the n me Attorney General, or two or more persons having an interest ern ov in the trust and having obtained the consent in writing of the 5 G Attorney General, may institute a suit, whether contentious or 02 ©2 not, in the High Court to obtain a decree- (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (d) directing accounts and inquiries; 34 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorising the whole or any part of the trust property . to be let, sold, mortgaged or exchanged; G OA (g) settling a scheme; or of n (h) granting such further or other relief as the nature of tihsse io case may require. erm ut p [s. 67] ith o w PART VII ted ibu SUPPLEMENTAL PROCEED r diIs tNGS or ed Supplemental 78. In order to prevent the ends of jusdtui cce from being defeated proceedings the court may, subject to any rules ipnrore that behalf- (a) issue a warrant to arres yt b t ehe defendant and bring him before the court to skhmo a w cause why he should not give security for his ap o pboearance, and if he fails to comply with any order for s is f ethcurity commit him as a civil prisoner; (b) direct the o adrtefendant to furnish security to produce any proNpoe prty belonging to him and to place the same at thvee d . isposal of the court or order the attachment of anesye  rproperty; r (c) tsg h rant a temporary injunction and in case of disobedience ll r ig A commit the person guilty thereof as a civil prisoner and . nia order that his property be attached and sold; nz a a (d) appoint a receiver of any property and enforce the T t o f performance of his duties by attaching and selling his men property; or ve rn (e) make such other interlocutory orders as may appear to Go 5 the court to be just and convenient. 2 20 [s. 68] © 35 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Compensation for 79.–(1) Where, in any suit in which an arrest or attachment has obtaining arrest, attachment or been effected or a temporary injunction granted under section 78- injunction on (a) it appears to the court that such attachment or insufficient grounds injunction was applied for on insufficient grounds; or . (b) the suit of the plaintiff fails and it appears to the court OAG that there was no reasonable or probable ground for of n instituting the same, iss io the defendant may apply to the court and the court may, uerpmon such application, award against the plaintiff by its ordet rpou such amount, not exceeding two thousand shillings, as wiit th deems a reasonable compensation to the defendant for tuhtee d expense or injury caused to him. tribis (2) An order determining any such a d oprplication shall bar any suit for compensation in respect ofu sceu dch arrest, attachment or injunction. d rep ro e [s. 69] b ay PAk o RmT VIII bo his APPEALS of t pa rt Appeals from Decrees o Appeal from 80.–(1) Save wd. h Nere otherwise expressly provided in the body original decree of this Codeerv eor by any other law for the time being in force, an resappeal tss hall lie to the High Court from every decree passed by a co urig h l rt of a resident magistrate or a district court exercising oar. i Agl inal jurisdiction. i za n (2) An appeal may lie from an original decree passed an f T ex parte. o nt (3) An appeal shall not lie from a decree passed by the court rnm e with the consent of the parties. ov e [s. 70] G 02 5 ©2 Appeals from 81. Where a party aggrieved by a preliminary decree does not final decree where no appeal appeal from such decree, he shall be precluded from disputing from preliminary its correctness in any appeal which may be preferred from the decree final decree. [s. 71] 36 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Decision 82.–(1) Where an appeal is heard by a Bench of two or more where appeal heard by two or judges, the appeal shall be decided in accordance with the more judges opinion of such judges or of the majority, if any, of such judges. (2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such . AG decree shall be confirmed: of O Provided that, where the bench hearing the appeal sissi o n composed of two judges and the judges composing the beernm ich differ in opinion on a point of law, they may state thuet ppoint of law upon which they differ, and the appeal shalitlhow then be heard upon that point only by one or more of thet eodther judges, and such point shall be decided according tso u tri bthe opinion of the majority, if any, of the judges who haovr e d iheard the appeal including those who first heard it. ce d u pro d [s. 72] re No decree to 83. A  decree shall not be rev ebey rsed or substantially varied, be reversed or modified for error nor shall any case be reman a kd med, on appeal, on account of any o or irregularity not misjoinder of parties or bcoauses of action or any error, defect affecting merits s or jurisdiction or irregularity in any f pthr i oceedings in the suit not affecting the o merits of the casep oa rrt the jurisdiction of the court. No [s. 73] d. erv e res Appeal from Orders ts Orders from 84.– r(ig1 h) An appeal shall lie to the High Court from the following which appeals lie All Acts Nos. or. ders of the District Courts, Resident Magistrate’s Courts and ia 25 of 2002 Sch. n za any other tribunals, the decisions of which are appealable to 12 of 2004 Scha. n 17 of 2008 s.f 2T3 the High Court, and save as otherwise expressly provided in t on this Code or by any law for the time being in force from no me rn other order- veo (a) an order superseding an arbitration where the award 5 G 02 has not been completed within the period allowed by ©2 the court; (b) an order on an award stated in the form of a special case; (c) an order modifying or correcting an award; (d) an order filing or refusing to file an agreement to refer to arbitration; 37 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (e) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration; (f) an order filing or refusing to file an award in an arbitration without the intervention of the court; . (g) an order under section 79; OAG (h) an order under any of the provisions of this Code of n imposing a fine or directing the arrest or detention asis sa io civil prisoner of any person except where such arrpees rmt or detention is in execution of a decree; or t ou (i) any order made under rules from which anth w i appeal is d expressly allowed by rules. uteb (2) Notwithstanding the provisions of subtrsiis ection (1), and subject to subsection (3), no appeal sha d olrl lie against or be made in respect of any preliminary or cieu nd terlocutory decision or order of the District Court, Residroedp nt Magistrate’s Court or any other tribunal, unless such r bdeeceision or order has effect of finally determining the suit. y (3) Subsection (2) shall nko m a oo t apply in relation to a decision or order given in relation tso bi the exercise by the mortgagee of the powers to see or entt eo fr t hin possession of the mortgaged land or in an action brou g r paht by a mortgagor to suspend or to stop sale of a mortgaged. N p oroperty. d rve [s. 74] res e Other orders 85. Sigahv tse as otherwise expressly provided, no appeal shall lie fro r Aml l any order made by a court, but where a decree is appealed fiar.an om, any error, defect or irregularity in any order, affecting the an z decision of the case may be set forth as a ground of objection of T t in the memorandum of appeal. n me [s. 75] ern Gov 5 General Provisions relating to Appeals 20 2 © Powers of High 86.–(1) Subject to such conditions and limitations as may Court on appeal be prescribed, the High Court in the exercise of its appellate jurisdiction shall have power to- (a) determine a case finally; (b) remit a case for re-trial; 38 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (c) frame issues and refer them for trial; or (d) take additional evidence or to require such evidence to be taken. (2) Subject to any conditions and limitations prescribed under subsection (1), the High Court shall have the same AG. powers and shall perform, as nearly as may be, the same duties of O as are conferred and imposed by this Code on courts of originasios l n jurisdiction in respect of suits instituted therein. mi r ut e [ps. 76] ith o w PART IX d bu te REFERENCE, REVIEW AND RE tri disVISION or d Reference to High 87. Subject to such conditions andd e ulcimitations as may be Court prescribed, any court may state a ecpa rose and refer the same for the opinion of the High Court ane dr b the High Court may make such order thereon as it thinkmsay  fit. oo k [s. 77] b his Review 88.–(1) Subject to at no f yt conditions and limitations prescribed Acts Nos. 25 of 2002 Sch. under section 87o, pa a rperson considering himself aggrieved- 17 of 2008 s. 24 (a) by decdr. e Ne or order from which an appeal is allowed by thise rCv eode but from which no appeal has been preferred; es hts o rr (b ri)gl by a decree or order from which no appeal is allowed . A l a by this Code, n za mi ay apply for a review of judgment to the court which passed n of Ta the decree or made the order, and the court may make such nt order thereon as it thinks fit. e rnm (2) Notwithstanding the provisions of subsection (1) and e ov subject to subsection (3), no application for review shall lie 5 G2 against or be made in respect of any preliminary or interlocutory 0 ©2 decision or order of the Court unless such decision or order has the effect of finally determining the suit. (3) Subsection (2) shall not apply in relation to an application to review a decision or order given in relation to the exercise by the mortgagee of the powers to sell or enter in possession of 39 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the mortgaged land or in an action brought by a mortgagor to suspend or to stop sale of a mortgaged property. [s. 78] Revision 89.–(1) The High Court may call for the record of any case AG. Act No. 25 of 2002 Sch. which has been decided by any court subordinate to it and O of in which no appeal lies thereto, and if such subordinateio ns court appears- is erm (a) to have exercised jurisdiction not vested in it byu tl paw; (b) to have failed to exercise jurisdiction so vestetdhowi ; or (c) to have acted in the exercise of its jurisd d uitcetion illegally or with material irregularity, rib ist the High Court may make such order in th d oer case as it thinks fit. (2) Notwithstanding the provisioncesd of subsection (1), no application for revision shall lireo d uor be made in respect of any preliminary or interlocuteo rr epy decision or order of the Court unless such decision oary border has the effect of finally determining the suit. k mo Cap. 11 (3)3 This section shalsl bn o i ot be construed as limiting the High Court’s power to exoef trhcise revisional jurisdiction under the Magistrates’ Court pa sr tAct. o d. N [s. 79] rve se re PART X hts rig RULES ll a. A Application of an9 i 0. Subject to this Act, the Rules set out in the First and Second rules in First anndz Second Sche dTuales Schedules shall apply to the matters provided for in this Code. t o f n [s. 80] rnm e oPvo ewers of Chief 91. The Chief Justice may, with the consent of the Minister, Justice to make 5 Grules amend the First and Second Schedules. 02 ©2 [s. 81] 3 Note: Subsection (3) was previously subsection (2) in terms of Act No. 49 of 1966 (the original Code). It has been rearranged as subsection (3) in order to rectify an error under Act No. 25 of 2002 which treated the said section as a single provision. 40 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Matters for which 92.–(1) Rules made in accordance with the provisions of this rules may provide Part may provide for any matter relating to the procedure of civil courts. (2) In particular, and without prejudice to the generality of the powers conferred by subsection (1), and in addition to AG. the powers conferred by sections 35 and 51, such rules may f O o provide for all or any of the following matters: ion ss (a) the service of summonses, notices and other proce i esrsm by post or in any other manner either generally oru t o ipn any specified areas, and the proof of such servic ew;ith (b) the maintenance and custody, while unduetre dattachment, of livestock and other movable propertisyt,r ibthe fees payable for such maintenance and custod oyr ,d the sale of such livestock and property and the p ed ucroceeds of such sale; (c) procedure in suits by way porof d counterclaim, and the valuation of such suits fobre trehe purposes of jurisdiction; (d) procedure in garnishmeeay and charging orders either in addition to, or in suokb o stitution for, the attachment and sale of debts; b thi s (e) summary pro ocf rt edure- (i) in su a o ipts in which the plaintiff seeks only to recover ad d. Nebt or liquidated demand in money payable by e ervthe defendant, with or without interest, arising on re s ts a contract, express or implied, or on an enactment igh r where the sum sought to be recovered is a fixed All . sum of money or in the nature of a debt other ia za n than a penalty; or on a guarantee, where the claim n Ta against the principal is in respect of a debt or a of nt liquidated demand only, or on a trust; or nm e (ii) in suits for the recovery of immovable property, er ov with or without a claim for rent or mesne profits, 5 G2 by a landlord against a tenant whose term has 20© expired or has been duly determined by notice to quit, or has become liable to forfeiture for non- payment of rent, or against persons claiming under such tenant; (f) procedure by way of originating summons; 41 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (g) consolidation of suits, appeals and other proceedings; (h) delegation to any Registrar, Deputy Registrar or District  Registrar or other official of the court of any judicial, quasi-judicial, and non-judicial duties; and . (i) all forms, registers, books, entries and accounts which OAG may be necessary or desirable for the transaction of the n o f business of courts. iss io [se.r m82] p ou t PART XI ith d w MISCELLANEOUS PROVISIOribNu teS st di Courts to respect 93.–(1) Women who, according to thde ior r religion or local privacy of e women enjoined custom, do not appear in public shdau cll, when appearing or by religion or required to appear in court pursuepa ront to any process issued custom r by the court, be accorded suchy fba e cilities for maintaining their privacy as may be reasonabkle m a and practicable. (2) This section shall n oo b t be deemed to exempt such women from arrest in executifothn is of civil process. art o [s. 83] o p Arrest other than 94. The provids.i o Nns of sections 50, 51 and 53 shall apply, so far in execution of e decree as may be, etrovs all persons arrested under this Code. ts re [s. 84] igh Exemption from 95A.–ll r . (1) A judge, magistrate or other judicial officer shall not arrest under civil nbiaprocess za e liable to arrest under civil process while going to, presiding n Ta in, or returning from, his court. nt of (2) Where any matter is pending before a tribunal having e rnm jurisdiction therein, or believing in good faith that it has such veo jurisdiction, the parties thereto, their advocates and recognised G 25 agents, and their witnesses, acting in obedience to a summons, 0 ©2 shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal. 42 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) Subsection (2) shall not enable a judgment debtor to claim exemption from arrest under an order for immediate execution or where such judgment debtor attends to show cause why he should not be committed to prison in execution of a decree. . AG [s. 85] O n o f sio Procedure 96.–(1) Where an application is made that any person shiasm ll where person er to be arrested be arrested or that any property shall be attached undute pr any or property to provision of this Code, not relating to the execution oitfh odecrees, be attached is outside and such person resides or such property is situd wte ate outside jurisdiction the local limits of the jurisdiction of the cosutrr ibtu to which the application is made the court may, in itso i r dd iscretion, issue a warrant of arrest or make an order of d c eattachment and send to the court within the local limits orofd w u hose jurisdiction such person resides or such property is ep e rsituate a copy of the warrant or order, together with the proby a abble amount of the costs of the arrest or attachment or a nook t mice that security for the payment of such amount has beens bi  goiven. (2) The court rec oef ithving such copy and amount or notice shall cause the a rt rpraest or attachment to be made by its own officers and sh o .a Nll inform the court which issued or made such warrant or o d rvreder of the arrest or attachment. (3) Th e re s court making an arrest under this section shall send the pieghr tsson arrested to the court by which the warrant of arrest wa Asl l rissued, unless he shows cause to the satisfaction of the fiao.n rmer court why he should not be sent to the latter court, nz a a or unless he furnishes sufficient security for his appearance of T t before the latter court or for satisfying any decree that may be men passed against him by that court, in either of which cases the ernv court making the arrest shall release him. o 5 G [s. 86] 20 2 © Assessors 97.–(1) In any admiralty cause of salvage, towage or collision, in causes of salvage, etc. the High Court may, if it thinks fit, and shall upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed, two 43 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] competent assessors, and such assessors shall attend and assist accordingly. (2) Every assessor shall receive such fees for his attendance to be paid by such of the parties as the High Court may direct or as may be prescribed. G. A [s. 87] f O o sio n Orders and 98. All orders and notices served on, or given to any perrmsoisn notices to be in writing under the provisions of this Code shall be in writing. ut pe ith o [s. 88] ted w Application for 99.–(1) Where and in so far as a decree is vartriibe ud or reversed, restitution the court of first instance shall, on the applir cda istion of any party entitled to any benefit by way of restitutiodn oe or otherwise, cause c such restitution to be made as will, srood ufar as may be, place the parties in the position which they wre pould have occupied but for such decree or such part thereof baeay s has been varied or reversed, and, for this purpose, the couk mrt may make any orders, including o orders for the refund ofs cbo o sts and for the payment of interest, i damages, compensatoifo thn and mesne profits, which are properly consequential on saurt p ch variation or reversal. (2) A suit shalol . N not be instituted for the purpose of obtaining any restitut d rivoe n or other relief which could be obtained by applicatiroesn e under subsection (1). gh ts [s. 89] ll r i Enforcement of n1ia0 . A0. Where a person has become liable as surety- liability of surety nz a (a) for the performance of any decree or any part thereof; a of T (b) for the restitution of any property taken in execution of nte a decree; or ern m v (c) for the payment of any money or for the fulfilment o G of any condition imposed on any person, under an 25 20 order of the court in any suit or in any proceeding © consequent thereon, the decree or order may be executed against him to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and 44 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] such person shall, for the purposes of appeal, be deemed a party within the meaning of section 44, provided that such notices as the court in each case thinks sufficient has been given to the surety. [s. 90] AG. f Oo Proceedings 101. Save as otherwise provided by this Code or by any written io n by or against iss representatives law for the time being in force, where any proceeding marym be taken or application made by or against any person, the pneut the proceeding may be taken or the application may be mtho d w i ade by or against any person claiming under him. ute str ib [s. 91] r d i Consent or 102. In all suits to which any person undeed ro disability is a party, agreement by c persons under any consent or agreement as to any prrood uceeding shall, if given or disability made with the express leave of th ere pcourt by the next friend or guardian for the suit, have thea ys baeme force and effect as if such person were under no disabki lmity and had given such consent or o made such agreement. bo thi s rt o f [s. 92] a Enlargement of 103. Where anyN op period is fixed or granted by the court for the time doing of anyv ad . e ct prescribed or allowed by this Code, the court may, in it e res discretion, enlarge such period, even though the r periodh tso riginally fixed or granted may have expired. ig ll r [s. 93] a. A ni Transfer of zan 104. Save as otherwise provided, where the business of any business f T a o court is transferred to any other court, the court to which the en t business is so transferred shall have the same powers and shall ern m perform the same duties as those respectively conferred and ov G imposed by or under this Code upon the court from which the 25 20 business was so transferred. © [s. 94] 45 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Saving of inherent 105. This Code shall not be deemed to limit or otherwise affect powers of court the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. . [s. 95] G f O A o Amendments 106. Clerical or arithmetical mistakes in judgments, decreessio n of judgments, decrees or orders or orders, or errors arising therein from any accidental sleirpm ios r omission may, at any time, be corrected by the court eiutth per on o its own motion or on the application of any of the pwaitr hties. d ute [s. 96] trib General power to 107. The court may, at any time, and on sucr dh is terms as to costs amend o or otherwise as it may think fit, amendc eadn y defect or error in any proceeding in a suit; and all nec u roedssary amendments shall be made for the purpose of dete ep er rmining the real question or issue raised by or depending oany bsuch proceeding. ok m [s. 97] bos th i of PART XII REPEAL AN rt o p aD TRANSITIONAL PROVISIONS N ed . Omitted 108-110. [eOrvmitted] s r es [s. 98-100] igh t r Forms 11A1ll. .–(1) Subject to any prescribed forms, the Chief Justice anm ia ay approve for use forms for applications, proceedings, an z T processes, notices, orders, decrees, precepts, memoranda, t o f n bonds, commissions, letters of request or other documents nm e required to be prepared, executed, filed, issued or otherwise er ov used in connection with proceedings under this Code. 5 G2 (2) Where any form is prescribed or approved for use by 20© the Chief Justice it shall be followed in all such cases to which it applies with such variations as the circumstances of the case require. (3) [Omitted] [s. 101] 46 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] FIRST SCHEDULE (Made under section 90) THE CIVIL PROCEDURE RULES . Citation 1. These Rules may be cited as the Civil Procedure Rules. AG of O n ORDER I ss io erm i PARTIES TO SUITS t p ou ith (a) Joinder of Parties d w ute Who may 1. All persons may join in one suit as plaintifftribs in whom any be joined as is plaintiffs right to relief in respect of or arising ou to ro df the same act or transaction or series of acts or transacutcieo dns is alleged to exist, whether jointly, severally or in thep rao dlternative where, if such persons brought separate suits, ba e en r y common question of law or fact would arise. y a ok m o Power of court 2. Where it appears to itsh be court that any joinder of plaintiffs to order separate trials may embarrass or delfa th o y the trial of the suit, the court may put the plaintiffs to th pea ritr election or order separate trials or make such other ordeNro. as may be expedient. d erv e Who may 3. All p reer ssons may be joined as defendants against whom be joined as ts defendants any rigigh ht to relief in respect of or arising out of the same act or Atll r ransaction or series of acts or transactions is alleged to eiax.an ist, whether jointly, severally or in the alternative where, if nz Ta separate suits were brought against such persons, any common of t question of law or fact would arise. en Coeurn m v rt may give 4. Judgment may be given- o G judgment for 5 or against one (a) for such one or more of the plaintiffs as may be found 20 2 or more of joint to be entitled to relief, for such relief as he or they may © parties be entitled to; or (b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities. 47 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Defendant need 5. It shall not be necessary that every defendant shall be not be interested interested as to all the reliefs claimed in any suit against him. Joinder of parties 6. The plaintiff may, at his option, join as parties to the same liable on same contract suit all or any of the persons severally, or jointly and severally, G. A liable on any one contract, including parties to bills of exchange of O and promissory notes. sio n is rm When plaintiff 7. Where the plaintiff is in doubt as to the persont p e u from in doubt, from whom redress whom he is entitled to obtain redress, he may joiitnho two or is to be sought more defendants in order that the question as tot ewd which of the defendants is liable, and to what extent, may ibu sbtre determined as between all parties. i or d edc One person may 8.–(1) Where there are numerous ropde urson having the same sue or defend on behalf of all in interest in one suit, one or more o fre s puch persons may, with the same interest permission of the court, sue ora e yb be sued, or may defend, in such suit, on behalf of or for the kb menefit of all persons so interested, o but the court shall in susc bh o case give, at the plaintiff ’s expense, i notice of the institut th oifo n of the suit to all such persons either by personal servicpae r t or, where from the number of persons or any other caus o d. eN such service is not reasonably practicable, by public adverrvteisement, as the court in each case may direct. (2) A se ts r eperson on whose behalf or for whose benefit a suit is insigthituted or defended under subrule (1) may apply to the coAull r rt to be made a party to such suit. nia . Misjoinder and a nz 9. A suit shall not be defeated by reason of the misjoinder or non-joinder ofa parties f T non-joinder of parties, and the court may in every suit deal o en t with the matter in controversy so far as regards the right and ern m interests of the parties actually before it. ov G 25 Suit in name of 10.–(1) Where a suit has been instituted in the name of the 20 wrong plaintiff © wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff the court may at any stage of the suit, if satisfied that the suit has been so instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, 48 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] order any other person to be substituted or added as plaintiff upon such terms as the court thinks just. (2) The court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order that the AG. name of any party improperly joined, whether as plaintiff or O of defendant, be struck out, and that the name of any person whsoio n ought to have been joined, whether as plaintiff or defendant, ioserm r whose presence before the court may be necessary in o p urt der to enable the court effectually and completely to adjudwi o icthate upon and settle all the questions involved in the suit, b d a te dded. (3) A person shall not be added as a plaintiffib utr suing without a next friend or as the next friend of a p is or dlaintiff under any disability without his consent. d ce (4) Where a defendant is added trhode u plaint shall, unless the court otherwise directs, be amen dree pd in such manner as may be necessary, and amended co apy ibees of the summons and of the plaint shall be served on thke m new defendant and, if the court thinks fit, on the original o b do efendant. Cap. 89 (5) Subject to the f tph irsovisions of section 22 of the Law of Limitation Act, thea rpt oroceedings as against any person added as defendant shal o p lN be deemed to have begun only on the service of the summodn. s. rve se Conduct of suit 11. The crets ourt may give the conduct of the suit to such person as it h l rdigeems proper. Al Appearance of an1 ia2. .–(1) Where there are more than one plaintiffs, any one one of several nz plaintiffs or Ta or more of them may be authorised by any other of them to defendant so fft or appear, plead or act for such other in any proceeding, and in others en nm like manner, where there are more than one defendants, any er ov one or more of them may be authorised by any other of them G 25 to appear, plead or act for such other in any proceedings. 0 ©2 (2) The authority shall be in writing signed by the party giving it and shall be filed in court. 49 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Objections as to 13. All objections on the ground of non-joinder or misjoinder non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all case where issues are settled, at or before such settlement unless the ground of objection has subsequently . arisen, and any such objection not so taken shall be deemed to AG have been waived. of O sio n is (b) Third Party Procedure erm ut p o Leave to file third 14.–(1) Where in any suit a defendant claims a th wgiainst any party notice person not a party to the suit, hereinafter referurte dd to as “the third party”- tribis (a) any contribution or indemnity; or d or (b) any relief or remedy relating tou coe dr connected with the subject matter of the suit anpdro s dubstantially the same as a relief or remedy claimede rb bey the plaintiff, the defendant may apply to tahye court for leave to present to the court a third party notoikc e m. (2) An application unis db oer subrule (1) shall, unless the court otherwise directs, be th o f made ex parte and be supported by an affidavit stating- art p (a) the natu. Nr oe of the claim made by the plaintiff in the suit; d (b) the srvtee age which proceedings in the suit have reached; (c) st hr ees nature of the claim made by the applicant against ht rig the third party and its relation to the plaintiff ’s claim ll . A against the applicant; and an ia z (d) the name and address of the third party. Tan (3) Where, upon an application made under subrule (1), f nt o the court is satisfied that the defendant’s claim against the third me n party is in respect of a matter referred to in paragraph (a) or (b) er ov of that subrule and that, having regard to all the circumstances 25 G of the case, it is reasonable and proper to grant leave to the 0 ©2 defendant to present a third party notice, the court shall, upon such terms and conditions as it may think just, make an order granting the defendant leave to present a third party notice. (4) An order granting leave to present a third party notice shall contain directions as to the period within which such 50 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] notice may be presented and as to such other matters as the court may think just. Contents of notice 15. A third party notice shall state- (a) the nature of the plaintiff ’s case against the defendant; G. A (b) the nature of the defendant’s claim against the of O third party; sio n (c) the reliefs claimed by the defendant against mtiser he third party; t p ou (d) the period within which the third party mwaity h present his defence; and ute d (e) the consequences of the failure by t rib ihste third party to present his defence within such a p oer rdiod. ce d u Service of notice 16.–(1) The court shall cause to ber osderved a copy of a third on third party and other parties party notice presented to it on threepe third party in accordance to suit with rules relating to service oafy  s bummons. (2) A  copy of the thirdo k p marty notice shall also be served on each of the other pa brois ties to the suit in accordance with the provisions of rulef tho 2 of Order VI as if such notice were a pleading other thaanrtp a plaint. o N Defence by 17. Where ae dt . v hird party notice has been served on the third third party party, the e re sth rird party shall, if he wishes to dispute the plaintiff ’s claim hitns the suit against the defendant presenting the third partl yri g Al notice or his own liability to the defendant, within . ntiawenty-one days of the service of the third party notice upon nz a a him or such longer period as the court may have directed or f T t o as the court may, on the application of the third party, direct, enm present to the court a written statement of his defence. ern ov GDirections 18.–(1) Where a third party has presented a written statement 02 5 2 of defence the court shall on the application of the defendant © presenting the third party notice or on the application of the third party or, where the third party has disputed the plaintiff ’s claim against the defendant, on the application of the plaintiff, or on its own motion, fix a date for the giving of directions and 51 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] may on such date, if satisfied that there is a proper question to be tried as to the liability of the third party in respect of the claim made against him by the defendant, order the question of such liability to be tried in such manner, at or after the trial . of the suit, as the court may direct or, if the court is not so OAG satisfied, pass such decree or make such order as the nature of n o f the case may require. siois (2) The court shall cause a notice of the date of geivrming directions to be served on the defendant presenting th p oue t third party notice and on the third party and on such othiteh w r parties to the suit as the court may direct, in accordanceu wte dith the rules relating to service of summons. trib di s or Judgment against 19.–(1) Where a third party makes decfadu e lt in presenting his third party in default written statement of defence within u ro dthe time allowed under GN. No. rule 17 or having presented a w rei ptten statement of defence, 376 of 1968 e makes default in appearing oany bthe date fixed for the giving of directions- k mo (a) if the defendanist b opresenting the third party notice suffers judgm oef ntht by default, such defendant may at any t time after psaa r tisfaction of that judgment or, with leave of the coNo d. urt, before satisfaction thereof, apply ex parte for ejruv edgment against the third party in respect of any sc ro ens tribution, indemnity or relief claimed in the notice ht rig and the court may, on such application and on ex parte ll . A proof by the defendant of his claim against the third nia za party, enter such judgment against the third party as n Ta the nature of the suit may require; nt of (b) if the defendant presenting the third party notice suffers rnm e judgment after trial of the suit against him, the court e ov may at or after the trial of the suit enter such judgment 5 G 02 for the defendant against the third party as the nature ©2 of the suit and the claim made in the third party notice may require: Provided that, execution of any decree passed consequent upon judgment being entered in accordance 52 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] with this paragraph shall not be issued without leave of the court until after satisfaction by such defendant of the decree passed against him; (c) where judgment by consent is entered against the . defendant in favour of the plaintiff the court may, on OAG application of the defendant and on ex parte proof by n o f him of his claim against the third party, enter suicssh io judgment in favour of the defendant against thep eth rmird party as the nature of the suit may require: t ou Provided that, execution of any dec rwei teh passed d against the third party consequent u te bpuon judgment being entered against him in accodir i sdtrance with this paragraph shall not be issued wd oi rt hout leave of the court, until after satisfaction b ce dyu such defendant of the decree passed against him; eopr ro (d) where the third party is t r y hbee Attorney General, the court shall, on the applicati a mon for directions of the defendant presenting the thbir odko party notice, fix a date of which notice shall be t hg isi ven to the Attorney General and on which the co f rt uort may make any order, upon such terms as it mayo d pi arect as to costs or otherwise, which it could makee ud .n Nder the provisions of rule 18 or may enter such jud rv segment against the third party as the nature of the e hts ur it may require. (ll2 ri) g The court may, at any time, set aside or vary a judgment en. Aia tered against a third party pursuant to the provisions of an nz subrule (1) on such terms as it may think just. f T a Costs nt o 20. The court may decide all questions of costs between a third e rnm party and other parties to the suit, and may make such orders ve Go as to costs as it may think just. 02 5 ©2 Provisions of 21. Subject to the provisions of rules 14, 15, 16, 17, 18 and Code and Law of Limitation Act 19, the provisions of this Code and the provisions of the Law to apply to third of Limitation Act in relation to a third party notice and to party proceedings Cap. 89 proceedings begun thereby shall apply as if- (a) the third party notice were a summons to defend; 53 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) the defendant presenting the notice were a plaintiff and the third party were a defendant; (c) the date fixed for the giving of directions were a date fixed for the hearing of a suit; and . (d) judgment entered against the third party in accordance OAG with the provisions of rule 19 were an ex parte judgment of n entered against a defendant in a suit. sios erm i Third party may 22. A third party served with a third party notice shautl l p have present third o party notice the same right to present a third party notice ag waitnh st some other party not a party to the suit as if he were aut ed defendant in that suit. trib r d is o Co-defendant as 23. Where in any suit a defendant ccleadi ms against another third party defendant in the same suit, hereinaft u roedr referred to as “the co- defendant”- re p e (a) any contribution or indaye bmnity; (b) any relief or remedoyk r melating to or connected with any subject matter oisf b othe suit and substantially the same as a relief or o fr tehmedy claimed by the plaintiff against t the defend r o p ant, such defendan. tN may present a third party notice against the co-defendarnvet d e in the same manner and subject to the same conditio s rnes as if the co-defendant were a third party and the same phtig rsocedure shall be adopted for the determination of the claAilml r . s made against the co-defendant as if the co-defendant nwiaa ere a third party. nz Ta f t o ORDER II en rnm FRAME OF SUIT e ov 25 GFrame of suit 1. Every suit shall, as far as practicable, be framed so as to 20© afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Omitted 2. [Omitted] [r. 2A] 54 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Suit to include 3.–(1) Every suit shall include the whole of the claim which the whole claim, relinquishment of plaintiff is entitled to make in respect of the cause of action, part of claim and but a plaintiff may relinquish any portion of his claim in order omission to sue for one of several to bring the suit within the jurisdiction of any court. . reliefs (2) Where a plaintiff omits to sue in respect of, or AG intentionally relinquishes, any portion of his claim, he shall of O not afterwards sue in respect of the portion so omitted ossri o n relinquished. i erm (3) A person entitled to more than one relief in re t p osupect of the same cause of action may sue for all or any of s t wuichh reliefs, but if he omits, except with the leave of the courutt, e dto sue for all such reliefs, he shall not afterward sue for anys rtre iblief so omitted. Explanation: For the purposes of thiosr driule an obligation and a collateral security forc edits performance and successive claims arising urond uder the same obligation shall be deemed respe ep ec rtively to constitute but one cause of action. y b k m a o [r. 2] bo Joinder of causes 4.–(1) Save as otherw s f itshe i provided, a plaintiff may unite in the of action same suit several caartu oses of action against the same defendant, or the same def Neno pdants jointly, and any plaintiffs having causes of action inr vw dh.e ich they are jointly interested against the same defendants ere or the same defendants jointly may unite such causegsh tos f action in the same suit. ri A(ll2) Where causes of action are united, the jurisdiction of nt iah. e court as regards the suit shall depend on the amount or nz a a value of the aggregate subject matters at the date of instituting T of the suit. t en [r. 3] m ve rn G oOnly certain 5. A cause of action shall not, unless with the leave of the court, 25 claims to be 0 joined for be joined with a suit for the recovery of immovable property, ©2 recovery of except- immovable property (a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; 55 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) claims for damages for breach of any contract under which the property or any part thereof is held; or (c) claims in which the relief sought is based on the same cause of action: . Provided that, nothing in this rule shall be deemed to AG prevent any party in a suit for foreclosure or redemption from O of asking to be put into possession of the mortgaged property. ion iss pe [rm. 4] ut Claims by or 6. A  claim by or against an executor, administratwoitr h oor heir, against executor, administrator or as such shall not be joined with claims by ort eda gainst him heir personally, unless the last-mentioned claims a ibu srtre alleged to arise with reference to the estate in respect of wohr diich the plaintiff or defendant sues or is sued as executor, adcemd inistrator or heir, or such as he was entitled to, or liable for u ro, djointly with the deceased p person whom he represents. e be r ay [r. 5] m ok Power of court 7. Where it appears tos bt ohe court that any causes of action to order separate i trials joined in one suit c th oafn not be conveniently tried or disposed of together, the co rt paurt may order separate trials or make such other order as moa . N y be expedient. rve d [r. 6] e s r es Objections as to 8. All htobjections on the ground of misjoinder of causes of misjoinder of rig causes of action actAillon shall be taken at the earliest possible opportunity and in naial .l case where issues are settled, at or before such settlement, za an unless the ground of objection has subsequently arisen, and of T t any such objection not so taken shall be deemed to have men been waived. ernv [r. 7] o 5 G 02 ©2 56 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER III RECOGNISED AGENTS AND ADVOCATES Appearances, etc., 1. Any appearance, application or act in or to any court, . may be in person, by recognised required or authorised by law to be made or done by a party G O A agent or by in such court may, except where otherwise expressly provided f n o advocate o GN. No. by any law for the time being in force, be made or done by t i ihsse 376 of 1968 party in person or by his recognised agent or by an adv poe rcmate t duly appointed to act on his behalf or, where the Aouth ttorney General is a party, by a public officer duly authordi swe i d by him in that behalf: ute rib Provided that, any such appearance sha dlisl, t if the court so directs, be made by the party in person. d o r e du c Recognised 2. The recognised agents of parties ebpy ro whom such appearances, agents r GN. No. applications and acts may be ma bdee or done are- 140 of 1999 (a) persons holding powerasy m -of-attorney, authorising them to make appearanocob eks or applications and to do such acts on behalf othf is s uch parties; (b) persons carrrt yo fing on trade or business for and in the names ofo pp aarties not resident within the local limits of th . N eed jurisdiction of the court within which limits these ar vppearance, application or act is made or done, in m rehts atters connected with such trade or business only, g ll r i where no other agent is expressly authorised to make A ia. and do such appearances, applications and acts. an nz Certification of Tbya 3. Notwithstanding the provisions of rules 1 and 2, an advocate Council nfot r Legal Educatieon shall not appear before a commercial court unless he is certified rnm by the council for legal education as being knowledgeable ve Go in commercial law and practice, or has obtained permission 5 02 from the Judge in charge of the Commercial Court to appear ©2 in respect of a specific case. [r. 2A] 57 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Service of process 4.–(1) Processes served on the recognised agent of a party shall on recognised agent be as effectual as if the same had been served on the party in person, unless the court otherwise directs. (2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognised agent. G. A [r. 3] f O ion o s Advocate to 5. The court may require any advocate claiming to act s rm oi n produce written authority when behalf of any party who has not appeared in person e ut por by required his recognised agent to produce, within such timew ait hso may be reasonable, a written authority signed by sucht epd arty or his u recognised agent authorising the advocate tos tra ibct on behalf of i such party. d d o r uc e [r. 4] od Service of process r on advocate 6. Any process served on the ad rev pocate of any party or left at the office or ordinary resaiyd beence of such advocate, and whether the same is for thoek p mersonal appearance of the party or not, shall be presums b o i ed to be duly communicated and made known to the pfa tho rty whom the advocate represents and, unless the court o ptah rt erwise directs, shall be as effectual for all purposes as if. Nth o e same had been given to or served on the party in perrvseo dn. res e [r. 5] htsg Agent to accept 7.– A(ll1ri) Besides the recognised agents described in rule 2 any service and appointment npiae . rson residing within the jurisdiction of the court may be to be in writing za a n appointed an agent to accept service of process. and to be filef dT in court t o (2) Such appointment may be special or general and shall be men made by an instrument in writing signed by the principal, and ve rn such instrument or, if the appointment is general, a certified o G copy thereof shall be filed in court. 02 5 2 [r. 6] © 58 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER IV INSTITUTION OF SUITS Suit to be 1.–(1) Every suit shall be instituted by presenting a plaint . commenced by plaint electronically or manually to the court or such officer appointed G O A GNs. Nos. in that behalf. f on o 376 of 1968 23 of 1984 (2) Every plaint shall comply with the rules contained i isisn 422 of 1994 Order VI and VIII, so far as they are applicable. pe rm 140 of 1999 (3) A suit shall not be instituted in the Commercialh Do utivision 381 of 2019 of the High Court concerning a commercial m it da wtter which is pending before another court or tribunal te b uof competent jurisdiction or which falls within the ciostd mri petency of a lower court. d o r (4) It shall not be mandatory for au ceommercial case to be instituted in the Commercial Divisiporon d of the High Court. (5) Notwithstanding the probvei sreions of rule 10 of the High Court Registries Rules, and wiatyh m out prejudice to the exception under subrule (1) of Rulek oo 7 of the High Court Registries Rules, all preliminaryh b is steps in the Commercial Division, including the decisi f t to on as to whether or not the suit concerns a commercial case r spha all be determined by a judge and such suit shall not com N de. u op for mention except for the judge to make a reschedulinergv e order in respect of the case. res Register of suits 2. Thigeh tscourt shall cause the particulars of every suit to be en ll r Atered in a book to be kept for the purpose and called the ia. anregister of civil suits, and such entries shall be numbered an z T in every year according to the order in which the plaints of t are presented. n rnm e Avsesignment of 3. Where a suit has been duly instituted it shall be assigned to 5 G oinstituted suit a specific judge or magistrate electronically or manually by the 2 20 judge or magistrate in charge of the court. © 59 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER V ISSUE AND SERVICE OF SUMMONS (a) Issue of Summons G. A Summons to file 1.–(1) Where a suit has been duly instituted, a summons may f O written statement o of defence be issued to the defendant at the time when the suit is assignedio ns GNs. Nos. to a specific judge or magistrate pursuant to the provisions isrm of 376 of 1968 508 of 1991 rule 3 of Order IV, to file in accordance with subruleut p(e1) of 422 of 1994 rule 1 of Order VIII, a written statement of defence to ithhoe claim. 381 of 2019 w (2) Where a summons to file a written statemendt te of defence has not been effected in consequence of the ptrilba uintiff ’s failure to pay service fees or to effect service withionr d tishe time provided under rule 10, the court shall strike outc ethd e suit. od u Summons to be 2. Every summons shall be signe d r re pmanually or electronically signed and sealed GN. No. by the judge or magistrate or suy cb eh officer as may be appointed a 381 of 2019 by the Chief Justice in that kb mehalf and shall be sealed with the seal of the court. oob is f th Copy of plaint 3. Every summonsa srth oall be accompanied by a copy of the plaint GN. No. 422 of 1994 and copies of o p Ntoher documents as may be prescribed by the Chief Justic d. vee for the information of the defendant regarding the futurees ce ronduct of the suit. hts r Fixing of date for 4. Thig ll r e presiding judge, magistrate or the Registrar shall, after orders . A GN. No. tiahe issuance of summons under rule 1, fix a date for both parties n 381 of 2019 zan to appear for orders as prescribed under rule 17 of Order VIII of Ta taking into account the time required for service of summons, t en filing of the written statement of defence and reply thereto. ern m Gov (b) Service of Summons 25 ©20 Delivery or 5.–(1) Where the defendant resides within the jurisdiction of transmission of summons for the court in which the suit is instituted or has an agent resident service within that jurisdiction who is empowered to accept service of the summons, the summons shall, unless the court otherwise 60 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] directs, be delivered or sent to the proper officer to be served by him or one of his subordinates. (2) The proper officer may be an officer of a court other than that in which the suit is instituted and, where he is such an officer, the summons may be sent to him by post or in such . AG other manner as the court may direct. f O o sio n s Mode of service 6. Service of summons shall be made within fourteen dmair ys GNs. Nos. 422 of 1994 after it has been received by delivering or tendering uat p ecopy 381 of 2019 thereof signed by the judge, magistrate or such offiicthw eor as the Chief Justice may appoint in this behalf and se taelded with the seal of the Court. trib u is r d Service on several 7. Save as otherwise prescribed, where dt oce here are more than defendants one defendants, service of the sumromd uons shall be made on each defendant. e r ep y b Service to be 8. Wherever it is practicab a k lme, service shall be made on the on defendant oo in person when defendant in person, u bnless he has an agent empowered s practicable or on to accept service, in f wth ihich case service on such agent shall his agent be sufficient. o pa rt No Service on 9.–(1) In a suidt. relating to any business or work against a person agent by whom r e defendant carries who does snee ov t reside within the local limits of the jurisdiction on business of the hctso rurt from which the summons is issued, service on any manll rai gger or agent who, at the time of service personally carries noian . A such business or work for such person within such limits, zan shall be deemed good service. of Ta (2) For the purpose of this rule the master of a ship shall be nt e deemed to be the agent of the owner or charterer. ern m GoSvervice on agent 10. Where in a suit to obtain relief respecting, or compensation 5 2 in charge in suits 0 for immovable for wrong to, immovable property, service cannot be made ©2 property on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property. 61 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Where service 11. Where in any suit the defendant is absent from his residence may be made on any adult at the time when the service of the summons is sought to be member of effected on him at his residence and there is no likelihood of defendant’s family his being found at the residence within a reasonable time and . he has no agent empowered to accept service of the summons AG O on his behalf, service may be made on any adult member of the n o f family who is of sound mind, whether male or female, who,i siss io residing with him. rm pe Explanation: A  servant is not a member of theou tf amily within the meaning of this rules. ith d w ute Person 12. Where the serving officer delivers or tendteribis rs a copy of the served to sign acknowledgement summons to the defendant personally or otor d an agent or other person on his behalf, he shall require thcedu person to whom the copy is so delivered or tendered to sroidp gn an acknowledgement of service endorsed on the originea rl e summons: Provided that, where the deafye bndant, his agent or such other person refuses to sign thoke m acknowledgement, the serving officer shall leave a coisp by o thereof with him and return the original to the court otf th ogether with an affidavit stating that the person upon wh rt opam he served the summons refused to sign the acknowled. gN oement, that he left a copy of the summons with such prveer dson and the name and address of the person, if any, by w e reh s om the person on whom the summons was served was iidghe tsntified. r A ll Procedure when 1ia3.n . Where the serving officer, after using all due and reasonable defendant cannontz a be found a diligence, cannot find the defendant and there is no agent GN. No. T t o f empowered to accept service of the summons on his behalf, 422 of 1e9n94 m nor any other person on whom service can be made, the ernv serving officer shall affix a copy of the summons on the outer Go 5 door or some other conspicuous part of the house in which the 20 2 defendant ordinarily resides or carries on business or personally © works for gain, and shall within fourteen days of affixing such copy then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under 62 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] which he did so, and the name and address of the person, if any, by whom the house was identified and in whose presence the copy was affixed. Endorsement of 14. The serving officer shall, within fourteen days of service G. time and manner A of service in all cases in which the summons has been served under rule O of 12, endorse or annex, or cause to be endorsed or annexe ion sds, on or to the original summons, a return stating the etrim i e when and the manner in which the summons was t o use prved, and the name and address of the person, if any, idith d w entifying the person served and witnessing the deliveryut eor tender of the summons. trib dis or Examination of 15. Where a summons is returned un cdeder rule 13 the Court serving officer shall, if the return under that rule rohda us not been verified by the affidavit of the serving officeer r, e pand may, if it has been so verified, examine the serving oyffi ba cer on oath, or cause him to be so examined by anothekr mo court, touching his proceedings and may make such furist hb oer inquiry in the matter as it thinks fit, and shall either dfe th o clare that the summons has been duly t served or order sucar p h service as it thinks fit. No . Substituted 16.–(1) Whrveer de the court is satisfied that there is reason to service believe t e rhe sat the defendant is keeping out of the way for the purpioghs tes of avoiding service or that, for any other reason, the sumll r . A mons cannot be served in the ordinary way, the court shall noiaa rder the summons to be served by affixing a copy thereof in nz Ta some conspicuous place in the court-house and also upon of t some conspicuous part of the house, if any, in which the men n defendant is known to have last resided or carried on business er ov or personally worked for gain or in such other manner as the G 25 court thinks fit. 20© (2) Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. (3) Where service is substituted by order of the court, the court shall fix such time for the appearance of the defendant as the case may require. 63 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Service by post 17.–(1) Where the court is satisfied that to require a summons to be served on a defendant in the ordinary manner or by substituted service may cause undue delay and that the summons may more conveniently be served by post, the court . may order that the summons be served by post. AG (2) Where a summons has been sent to a defendant by of O n post and the court is satisfied that under the provisioinssios of rule 26 the service may be deemed to have been edrmuly effected, the summons shall be deemed to have beenu ts p o erved on the defendant as effectively as if it had been siteh w rved on him personally. ute d (3) Where service is by post the court shall tfiribis x such time for appearance of the defendant as the case m oary d require. ce d Service of 18.–(1) The original and a copy of u road summons may be sent summons where defendant by the court by which it is issueed r eepither by one of its officers resides within or by post to any court, nota yb being the High Court, having jurisdiction of another court jurisdiction in the place whoke mre the defendant resides. (2) Where the defein dbos ant resides within the jurisdiction of the High Court o th off Zanzibar the original and a copy of the summons may be saret p nt by the court by which it is issued either by one of its offioc . N ers or by post to the High Court of Zanzibar or to any corvuer dt subordinate thereto within whose jurisdiction the defen e redsant resides for service on the defendant. hts g Duty of court to 19. AllTh ri e court to which the original and a copy of a summons which summons . is sent naiare sent under rule 18 shall, upon receipt thereof, proceed as a nz if the summons had been issued by such court and shall then Ta of within fourteen days of completing such proceeding return the nte summons to the court of issue, together with the record, if any, m ve rn of its proceedings with regard thereto. G o 02 5 Service on 20. Where the defendant is confined in a prison, the original ©2 defendant in prison and a copy of the summons shall be delivered or sent to the officer in charge of the prison for service on the defendant. 64 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Service on 21. Where the defendant is an officer of the government or officers of Government and of a local government authority the court may, if it appears local government to it that the summons may be most conveniently so served, authorities send the original and a copy of the summons for service on the . defendant to the head of the office in which he is employed. G f O A o Service on 22. Where the defendant is a member of the armed forc ion members of sess armed forces of the Republic, the court shall send the original andmi er a copy of the summons for service on the defendantu t o tpo his commanding officer. ith w ted Duty of person to 23.–(1) Where the original and a copy of tarib usummons are whom summons s is delivered or delivered or sent to any person for servori c die under rule 20, sent for service rule 21 or rule 22, such person shall bceed bound to serve the GN. No. 422 of 1994 summons, if possible and within fourrodte uen days after service to return it under his signature, with ep e ra written acknowledgement of the defendant or, if there is anyo b such acknowledgement, with a certificate of service, and m oskuch signature or certificate shall be deemed to be evidence ios fb  oservice. (2) Where from th o f any cause service is impossible, the summons shall b epa r rteturned to the court with a full statement of such cause .a Nn od of the steps taken to procure service, and such statemrveen dt shall be deemed to be evidence of non-service. res e Service where 24. Wghh tsere the defendant is believed to reside in Kenya, Uganda, defendant resides l ri in neighbouring MaAl awi or Zambia and has no known agent in Tanzania country neiam . powered to accept service, the summons may be served- a an z (a) where the plaintiff has furnished the postal address of T t o f the defendant, by post; enm (b) in any other case, through the courts of the country in ernv which the defendant is believed to reside; or Go 5 (c) by leave of the court, by the plaintiff or his agent. 2 ©20 Service where 25. Where the defendant is believed to reside outside Tanzania, defendant resides outside Tanzania elsewhere than in Kenya, Uganda, Malawi or Zambia and has no known agent in Tanzania empowered to accept service, the 65 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] court may, on the application of the plaintiff, order that service of the summons be effected- (a) by posts; (b) by the plaintiff or his agent; or . (c) through the courts of the country in which the AG O defendant is believed to reside. n o f ss io Service by post, 26. Service by post may be deemed to have been duly effecte i rdm if- when effective e (a) the summons is returned by the defendant enudt p o orsed with an acknowledgement of receipt; ith w (b) a letter or other document is receivueted d from the defendant acknowledging or indicatingtr itbis hat he received the summons; or d or (c) evidence is produced that a pos ed uctal packet was received by the defendant, supportperdo d by a certificate of an officer of the court that thbee r epostal packet contained the summons. y k m a o Service by 27. Service by the plaint bo isi ff or his agent may be deemed to have plaintiff or his agent been duly effected i of f tahn affidavit is filed by the person who t effected the servic pea r- (a) that dh o . Ne personally served the summons on thee drve efendant; (b) st hr east the defendant was personally known to him or was ht rig identified to him by a person named in the affidavit; All and nia . za (c) exhibiting the summons or a copy thereof endorsed an T by the defendant with an acknowledgement of service nt of or giving the reasons why no such acknowledgement e rnm could be obtained. e ov 5 G2 Service through 28. Service through the courts of the country in which the 20 courts of other © countries defendant is believed to reside may be deemed to have been duly effected if the summons is returned by any such court with an endorsement that it has been served. 66 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Procedure for 29.–(1) Where the court of a resident magistrate or a district procuring service through courts of court has ordered the service of a summons to be effected other countries through the courts of any country, other than Kenya, Uganda, Malawi or Zambia, in which the defendant is believed to reside, . it shall remit to the Registrar of the High Court at Dar es Salaam, AG O and where the High Court has so ordered, the Registrar shall f n o issue, a summons, together with two copies thereof and twsoiois copies of a translation thereof in the language of the copuen rmtry in which the summons is to be served, if that langut o age is other than English, and the Registrar shall there wuipthon send d those documents together with a certificate asb ut toe the sum of money deposited or secured to cover the expistr i d enses of service, to the Permanent Secretary to the Min r di ostry responsible for legal affairs- ce du (a) where leave has been givenep rfoor service to be effect in a country with which a ceo r b nvention has been made by the United Republic m cayoncerning the service of civil processes, for transomkbo ission to the representative of the United Republ tihc is in that country or as the convention may otherwrit soe f provide; or (b) for transm piao ssion to the Government of the country in whichd .e l eNave has been given for service to be effected, witsehr v a letter of request that service be effected through e htst hr e courts of that country. (ll2 ri) g Where the defendant is believed to reside in Kenya, U A ia.ganda, Malawi or Zambia the court which issued the n nz a summons may send the original and a copy thereof for service Ta f direct to any court having civil jurisdiction in the place where nt o e the defendant is believed to reside. rnm (3) A  summons shall not be sent for service through the ov e G courts of any other country unless there has been deposited 02 5 with the court or secured a sum sufficient in the opinion of the ©2 court to cover the expenses of service. 67 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Electronic 30.–(1) Without prejudice to other modes of service substituted service under this Order, substituted service may also be effected GN. No. electronically by way of e-mail or facsimile using the addresses 381 of 2019 previously disclosed or used between the parties in their . business transaction. AG (2) A copy of such service shall be simultaneously copied O n o f to the court. siois (3) For avoidance of doubt, a delivered status report shaerlml be deemed as proof of service. ut p ith o w ORDER VI ted ibu PLEADING GENERALL dY r ist d o r e Pleading 1. “Pleading” means a plaint or a writteuncd statement of defence, including a written statement of defperoe nce filed by a third party, and such other subsequent plea bdeirngs as may be presented in accordance with rule 13 of O mr adyer VIII. k oo Service of 2.–(1) Where any pleatdhisin bg is presented to the court, the party pleading on parties to suit presenting the pleadionf rt g shall- (a) in the ca psao e of plaint, present to the court such additiod.n Nal number of copies of the plaint as there may e be derevs fendants to enable the court to serve a copy of the p rlets aint on each of the defendants; and (llb ri) g h in the case of any other pleading- A ia. (i) prior to the presentation of the pleading, serve or n za cause to be served on each of the other parties to Tan f the suit a copy of such pleading; or o nt (ii) at the time of such presentation, present to the e rnm court such additional number of copies of the e ov pleading as there may be other parties to the suit 5 G2 who have not been served with them in accordance ©20 with provisions of subparagraph (i), and the court shall cause to be served on each of such parties a copy of such pleading. (2) A party to a suit shall be deemed to have been served with a copy of a pleading under the provisions of subparagraph (b) 68 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] of subrule (1) where such copy is served on the person who has entered appearance on behalf of such party or on his advocate. Pleading to state 3. Every pleading shall contain, and contain only, a statement material facts and . not evidence in a concise form of the material facts on which the party AG pleading relies for his claim or defence but not the evidence O of by which they are to be proved, and shall, when necessary, bseio n divided into paragraphs, numbered consecutively, and dearmte iss, sums and numbers may be expressed in figures. t p ou ith Particulars to 4. In all cases in which the party pleading r w teedlies on any be given where necessary misrepresentation, fraud, breach of trust, w u tirliblful default, or undue influence and in all other case in whri cd i o hs particulars may be necessary to substantiate any allegact eidon, such particulars, with dates and items if necessary, sharlol db ue stated in the pleading. re p Further and 5. A further and better stateme e yn bt of the nature of the claim or better statements a or particulars defence or further and bettke mr particulars of any matter stated in any pleading may, in a o s lbl o cases, be ordered, upon such terms, as to costs and otherowf tihsie as may be just. art Condition 6. Any conditioNno pprecedent, the performance or occurrence of precedent which is intevendd . ed to be contested, shall be distinctly specified in his pleeasde ring by the plaintiff or defendant; subject thereto, an r avermhetsn t of the performance or occurrence of all conditions pre r Alcl ei gdent necessary for the case of the plaintiff or defendant sah. i all be implied in his pleading. za n an Departure f To 7. A  pleading shall not, except by way of amendment, raise nt e any new ground of claim or contain any allegation of fact ern m inconsistent with the previous pleadings of the party pleading ov G the same. 25 ©20 Denial of contract 8. Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of 69 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract. Effect of 9. Wherever the contents of any document are material, it shall document to be stated be sufficient in any pleading to state the effect thereof as briefly . AG as possible, without setting out the whole or any part thereof, of O unless the precise words of the document or any part theresosfi o n are material. mi r pe ut Malice, 10. Wherever it is material to allege malice, firthaoudulent knowledge, etc. intention, knowledge or other condition of the w ute md ind of any person, it shall be sufficient to allege the same ib s tar s a fact without setting out the circumstances from whoicr dhi the same is to be inferred. ed c rod u Notice 11. Wherever it is material to alleg p ree notice to any person of any fact, matter or thing, it shall be bseay ufficient to allege such notice as a fact, unless the form okr mthe precise terms of such notice, o or the circumstances frosm b o which such notice is to be inferred, i are material. f th art o Implied contract 12. Wherever anoy p N contract or any relation between any person or relation is to be im d. vpe lied from a series of letters or conversations or otherrwes eisr e from a number of circumstances, it shall be sufficietns h t to allege such contract or relation as a fact, and to g refAellr r i generally to such letters, conversation or circumstances wia. n ithout setting them out in detail, and if in such case the za an person so pleading desires to rely in the alternative upon more T t o f contracts or relations than one as to be implied from such men circumstance, he may state the same in the alternative. rn ov e GPresumption of 13. Neither party need in any pleading allege any matter of 02 5 law 2 fact which the law presumes in his favour or as to which the © burden of proof lies upon the other side, unless the same has first been specifically denied, e.g. consideration from a bill of exchange where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim. 70 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Pleading to be 14. Every pleading shall be signed by the party and his advocate, signed if any, provided that, where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign . the same or to sue or defend on his behalf. AG of O Verification of 15.–(1) Save as otherwise provided by any law for the timseio n pleadings s being in force, every pleading shall be verified at the foot beyrm t ihe party or by one of the parties in the pleading or by som p oue t other person proved to the satisfaction of the court to be th waicquainted with the facts of the case. tedu (2) The person verifying shall specify, by tribis eference to the numbered paragraphs of the pleading, owr d hat he verifies of his own knowledge and what he verifieedc d upon information received and believed to be true. duro (3) The verification shall be sei gr enped by the person making it and shall state the date on awy h b ich and the place at which it was signed. k m bo o s Striking out 16. The court may, at fa thn i y stage of the proceedings, order to be pleading o struck out or amenardt p ed any matter in any pleading which may be unnecessary. N o o r scandalous or which may tend to prejudice, embarrass o d rvre delay the fair trial of the suit. e res Amendment of 17. Thets h court may at any stage of the proceedings allow either pleading parltl yri g to alter or amend his pleading in such manner and on A nsiau . ch terms as may be just, and all such amendments shall be za an made as may be necessary for the purpose of determining the f T o real questions in controversy between the parties. t en Faeilrunrme to amend 18. Where a party who has obtained an order for leave to oavfter order G amend does not amend accordingly within the time limited 25 20 for that purpose by the order, or if no time is thereby limited © then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days unless the time is extended by the court. 71 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER VII PLAINT Particulars to 1. The plaint shall contain the following particulars- . be contained in plaint (a) the name of the court in which the suit is brought; AG O GN. Nos. (b) the name, description and place of residence of the n o f 228 of 1971 o 381 of 2019 plaintiff including email address, fax number, telephoinseis number and post code, if available; pe rm t (c) the name, description and place of residentchoe u of the defendant including email address, fadx w i number, telephone number and post code, if avaiultaerib ble, so far as they can be ascertained; ist r d (d) where the plaintiff or the defen o edant is a minor or a person of unsound mind, a st uc oadtement to that effect; (e) the facts constituting the r rec pause of action and when it arose; y b e (f) the facts showing thka tm athe court has jurisdiction; (g) the relief which th o beo plaintiff claims; (h) where the plainhtiisf t ff has allowed a set-off or relinquished a portion ortf oa his claim, the amount so allowed or relinqui o p Nshed; and (i) a sta d. rtvement of the value of the subject matter of the suit fors ere the purposes of jurisdiction and of court fees, so far tsa h s the case admits. ll r ig A In money suits, n2ia. . Where the plaintiff seeks the recovery of money, the plaint precise amount za of money to be shall state the precise amount claimed: Ta n stated of Provided that, where the plaintiff sues for mesne profits, nt e or for an amount which will be found due to him on taking ern m unsettled accounts between him and the defendant, the plaint Gov shall state approximately the amount sued for. 25 20© Where subject 3. Where the subject matter of the suit is immovable property, matter of suit is immovable the plaint shall contain a description of the property sufficient property, to identify it and, in case such property can be identified by a identification required title number under the Land Registration Act, the plaint shall Cap. 334 specify such title number. 72 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] When plaintiff 4. Where the plaintiff sues in a representative character, the sues as representative plaint shall show not only that he has an actual existing interest in the subject matter, but that he has taken the steps, if any, necessary to enable him to institute a suit concerning it. G. A Defendant’s 5. The plaint shall show that the defendant is or claims to be O of interest and liability to be interested in the subject matter, and that he is liable to be calledio nss shown upon to answer the plaintiff ’s demand. mi er ut p Ground of 6. Where the suit is instituted after the expiration of tithoe period exemption from limitation law prescribed by the law of limitation, the plaint shtead lwl show the ground upon which exemption from such lawtr iibs u claimed. r d is Relief to be 7. Every plaint shall state specifically edth oe relief which the specifically stated c plaintiff claims either simply or in throed u alternative, and it shall not be necessary to ask for gener p arel or other relief which may always be given as the court m be ayay think just to the same extent as if it had been asked for, ank md this rule shall apply to any relief o claimed by the defendans tb oin his written statement. i of th Relief founded on 8. Where the plaintrit ff seeks relief in respect of several distinct separate grounds claims or causeso o p a N f action founded upon separate and distinct grounds, th d. vey shall be stated as far as may be separately and distirnesc etrly. hts List of documents 9.–( 1rigll ) The plaintiff shall endorse on the plaint, or annex tiah. e Areto, a list of the documents, if any, which he has produced za n n along with it. Ta of (2) The clerk of court shall sign such list if, on examination, nt e he finds it to be correct. ern m v GoReturn of plaint 10.–(1) The plaint shall, at any stage of the suit, be returned 5 2 and procedure on 0 returning plaint to be presented to the court in which the suit should have ©2 been instituted. (2) On returning a plaint, the judge or magistrate, shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it. 73 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Rejection of 11. The plaint shall be rejected in the following cases- plaint GN. No. (a) where it does not disclose a cause of action; 228 of 1971 (b) where the relief claimed is undervalued and the plaintiff, on being required by the court to correct the . valuation within a time to be fixed by the court, fails to G OA do so; f n o (c) where the suit appears from the statement in the plaiisnst io to be barred by any law: ermp Provided that, where a plaint does not disclose a cuat o use of action or where the suit appears from the statement winit h plaint to be barred by any law and the court is satisfied that d u tief the plaintiff is permitted to amend the plaint, the plaint wiisltlr idb isclose a cause of action or the suit will cease to appear f d rorom the plaint to be barred by any law, the court may allowuc et dhe plaintiff to amend the plaint subject to such conditionsp rao ds to costs or otherwise as the court may deem fit to impose e be . r ay Procedure on 12. Where a plaint is rejeockt med, the judge or magistrate shall rejecting plaint record an order to that eff bois ect with the reasons for such order. f th Where rejection 13. The rejection o arft othe plaint on any of the grounds set out of plaint does p not preclude in rule 11 shall o Nnot of its own force preclude the plaintiff from . presentation of presenting arv ef dresh plaint in respect of the same cause of action. fresh plaint se ts re gh Documents Relied on in Plaint ll r i A Production of n1ia4 . .–(1) Where a plaintiff sues upon a document in his document on a which plaintiff nz possession or power, he shall produce it in court when the sues f T a o plaint is presented and shall, at the same time, deliver the t en document or a copy thereof to be filed with the plaint. ern m (2) Where the plaintiff relies on any other documents, Gov whether in his possession or power or not, as evidence in 5 20 2 support of his claim, he shall enter such documents in a list to © be added or annexed to the plaint. 74 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Statement in case 15. Where any such document is not in the possession or power of documents not in plaintiff ’s of the plaintiff, he shall, if possible state in whose possession or possession or power it is. power G. Suits on lost 16. Where the suit is founded upon a negotiable instrument f O A negotiable o instruments and it is proved that the instrument is lost and an indemnitsyio n is given by the plaintiff, to the satisfaction of the court, againisrm st the claims of any other person upon such instrument, thet pu ceourt may pass such decree as it would have passed if thieth oplaintiff had produced the instrument in court when thteed wplaint was presented, and had, at the same time, deliver u ster idb a copy of the instrument to be filed with the plaint. di d o r ce Production of 17.–(1) Save in so far as is otherwiser u opdrovided by the Evidence shop book and original entry to Act, where the document on which re t phe plaintiff sues is an entry be marked and in a shop book or other accounyt bin e his possession or power, the returned a Cap. 6 plaintiff shall produce the bko mok or account at the time of filing o the plaint, together withs ab ocopy of the entry on which he relies. (2) The court or sfu th i o ch officer as it appoints in this behalf, shall forthwith marp at rk the document for the purpose of identification, aNno d, after examining and comparing the copy with the orivgedi .nal shall, if it is found correct, certify it to be so and retuerres rn the book to the plaintiff and cause the copy to be filedts. rig h ll Inadmissibility 18. Aia .–(1) A document which ought to be produced in court by of document not an produced whenn z the plaintiff when the plaint is presented, or to be entered in plaint filedof Ta the list to be added or annexed to the plaint, and which is not t en produced or entered accordingly, shall not, without the leave of m ern the court, be received in evidence on his behalf at the hearing ov 5 G of the suit. 20 2 (2) This rule shall not apply to documents produced for © cross-examination of the defendant’s witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. 75 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER VIII A. WRITTEN STATEMENT OF DEFENCE, SET-OFF AND COUNTERCLAIM4 G. Written statement 1.–(1) Where a summons to file a defence has been served in A of defence f O GNs. Nos. accordance with Order V and the defendant wishes to defend n oio 422 of 1994 the suit, he shall within twenty-one days from the date isosf 381 of 2019 m service of the summons, file to the court a written statt e r pme ent of defence and enter appearance on the date sp ou wiethcified in the summons. d e (2) The provisions of rule 1 of Order VII sha u ribll tapply mutatis mutandis in respect to filing a written statemst dient of defence. (3) The court may, on application by dt ho re defendant before the expiry of the period provided for filcinedu g a written statement of defence or within seven days aft ro reepr expiry of that period and upon the defendant showing go oed b cause for failure to file such written statement of defence y m,a extend time within which the defence has to be filed fobro oaknother ten days and the ruling to that effect shall be del itvh ies red within twenty one days. (4) The extendedrt toe fn days under subrule (3) shall be counted from the date of ot ph ae order of the court for extension of time. N d. New facts and 2. The defeenrvd e ant must raise by his pleading all matters which preliminary res objections must show tths e suit not be maintainable, or that the transaction is be specifically eithe rirg hvoid or voidable in point of law, and all such grounds of pleaded All GN. No. dae. fence as, if not raised, would be likely to take the opposite i 381 of 2019 za nparty by surprise, or would raise issues of fact not arising out of n f T a the plaint, as, for instance, fraud, limitation, release, payment, nt o performance, or facts showing illegality. me rn oDve enial to be 3. It shall not be sufficient for a defendant in his written 5 Gspecific 2 statement to deny generally the grounds alleged by the plaintiff, 0 ©2 but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. 4 Amended by GN. No. 381 of 2019 76 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Evasive denial 4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance, thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular . amount, but he must deny that he received that sum or any OAG part thereof or else set out how much he received, and if an f n o allegation is made with diverse circumstances, it shall not ibsse io sufficient to deny it along with those circumstances. ermp ou t Specific denial 5. Every allegation of fact in the plaint, if not denied wspithecifically or by necessary implication, or stated to be not audtem d itted in the pleading of the defendant, shall be taken to best ri aibdmitted except as against a person under disability: or d Provided that, the court may in its disuccer detion, require any fact so admitted to be proved otherwise trohdan by such admission. re p e Particulars of set- 6.–(1) Where in a suit for the r b aeycovery of money the defendant off to be given in written statement claims to set-off against theo kp mlaintiff ’s demand any ascertained and effect of sum of money legally rse bi cooverable by him from the plaintiff, set-off GNs. Nos. not exceeding the p oefc thuniary limits of the jurisdiction of the t 376 of 1968 court, and both p r pa rties fill the same character as they fill in 422 of 1994 the plaintiff ’s s.u Ni ot, the defendant may, within period of twenty- one days oefr b eedv ing served with the summons, present a written statemenrets containing the particulars of the debt sought to be s set-off t rig h: ll . AProvided that, a written statement shall not contain anp iaarticulars of- nz Ta (a) any debt, where the suit is brought for the recovery of of nt taxes, duties or penalties; e nm (b) a debt arising out of a right or claim to repayment in ve r o respect of any taxes, duties or penalties. 5 G2 (2) The written statement shall have the same effect as a 0 ©2 plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect of both the original claim and the set-off; but this shall not affect the lien, upon the amount decreed, of any advocate in respect of the costs payable to him under the decree. 77 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) The rule relating to a written statement by a defendant shall apply to a written statement in answer to a claim of set-off. Defence of set- 7. Where the defendant relies upon several distinct grounds off founded on separate grounds of defence or set-off founded upon separate and distinct facts, . OAG they shall be stated as far as may be, separately and distinctly. of sio n New ground of 8. Any ground of defence which has arisen after the institurtmio isn defence of the suit or the presentation of a written statement cluat i pme ing a set-off may be raised by the defendant or plain thiffoi in his written statement. d wte trib u Counterclaim 9.–(1) Where in any suit the defendant alle is rg des that he has any GN. No. 376 of 1968 claim or is entitled to any relief or remed o edy against the plaintiff in respect of a cause of action acocruucd ing to the defendant r before the presentation of a writt reen p statement of his defence the defendant may, in his writt ebey n statement of defence, state a particulars of the claim mk made or relief or remedy sought by him: oo s b Provided that, a wr i f itthten statement of defence shall not state- o (a) any particpual rta rs of claim where the suit is brought for the reco. Nv oe ry of taxes, duties or penalties; (b) partri d vceulars of any claim to repayment in respect of any t e s arexses, duties or penalties. (2) hWtg here a counterclaim is set-up in a written statement of deAfell nri ce, the counterclaim shall be treated as a cross-suit and . an tiahe written statement shall have the same effect as a plaint in a z an cross-suit, and the provisions of Order VII shall apply mutatis f T o mutandis to such written statement as if it were a plaint. t en Coeurnn mterclaim 10.–(1) Where a defendant, by a written statement, sets up any oavgainst plaintiff Gand third party counterclaim which raises questions between himself and the 25 20 plaintiff along with another person, whether or not a party to © the suit, he may join that person as a party against whom the counterclaim is made. (2) Where a defendant joins a person as party against whom a counterclaim is made he shall add to the title of 78 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the written statement of defence a further title similar to the title in a plaint setting forth the name of such person and a copy of such written statement of defence together with a notice requiring such person, should he wish to defend the defendant’s counterclaim, to file his written reply in answer to AG. the claim within the period specified in rule 11 shall be served O of on him as if such notice were summons and such counterclaimsio n were a plaint. is rm ut pe Reply to 11.–(1) Where a defendant sets up a counterclaim, thiteho plaintiff counterclaim GN. No. and the person, if any, who is joined as a party a w tegdainst whom 422 of 1994 the counterclaim is made, shall each, if he wishtreibs u to dispute the counterclaim, present to the court a written drisr eply containing a o statement of his defence in answer to theedc counterclaim within twenty one days from the date of u rtohd e service upon him of the counterclaim. e r ep (2) The rules relating to a awy rbitten statement of defence by a defendant shall apply to oak mreply by the plaintiff or a person joined as a party againsts wb ohom a counterclaim is made. f th i Court may order 12. Where a defendaart not has set up a counterclaim, the court may, separate trial of counterclaim if it is of the opi nNoi opn that the subject matter of the counterclaim ought for aneyd . v reason to be disposed of by a separate suit, order the r re sc eounterclaim to be struck out or order it to be tried separattes h ly or make such other order as may be expedient. ig All r Subsequent 1a3. i . A  pleading subsequent to the written statement of pleadings an GN. No. nz a defendant other than by way of defence to a set-off or a 422 of 1994 T of counterclaim shall not be presented except by the leave of the nt e court and upon such terms as the court thinks fit, but the court m ern may at a pre-trial conference require a written statement or ov G additional written statement from any of the parties and fix a 02 5 2 time for presenting the same: © Provided that, where a defendant has presented a written statement of defence in accordance with a summons to file a defence the plaintiff may, without obtaining leave of the court, present a reply to the written statement of defence within seven  days after the written statement of defence or, 79 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] where there are two or more defendants, the last of the written statements of defence, shall have been served upon him in accordance with the provisions of rule 2 of Order VI. Failure to present 14.–(1) Where any party required to file a written statement G. written statement A of defence of defence fails to do so within the specified period or where O of GN. No. such period has been extended in accordance with subrule (3)io n 381 of 2019 s of rule 1, within the period of such extension, the court shrma isll, e upon proof of service and on oral application by the putl a p intiff to proceed ex parte, fix the date for hearing the o w itp h laintiff ’s evidence on the claim. ute d (2) Where before ex-parte judgment hsatrs ib been entered pursuant to subrule (1) the court may, if thore d di efendant assigns good cause, set aside the order to proce cedd ex parte, upon such terms as the court may direct as to c u rodsts or otherwise. (3) The decree obtained undere thr eip s rule shall not be executed until after the expiry of the pe b aryiod of sixty days from the date of judgment. k mo bo Setting aside 15.–(1) Where a judg s f mth ient has been entered pursuant to rule default judgment GN. No. 14 the court may,a rtu opon application made by the aggrieved 381 of 2019 party, within s Nixo tpy days from the date of the judgment, set aside or varryve t dh. e default judgment upon such terms as may be considerreeds e by the court to be just. (2) hItsn considering whether to set aside or vary the order for the lld ri g A efault judgment under this rule, the court shall consider nwia .hether the aggrieved party has- za an (a) applied to the court within the period specified under f T o subrule (1); and nt me (b) given good cause for failing to file a written statement ve rn of defence. 5 G o (3) Where a judgment is set aside, the order shall be 022 effective upon the aggrieved party or judgment debtor filing © and serving a written statement of defence within the period specified by the court. (4) Where the defendant fails to file a written statement of defence within the period specified by the court pursuant to subrule (3), the default judgment shall revive. 80 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (5) The judgment revived pursuant to subrule (4) shall neither be set aside nor appealed against. When all 16. As soon as the written statement of defence or, if there pleadings presented are more than one defendants, the last written statement of AG. GNs. Nos. defence, and the reply, if any, thereto, or the last reply if there of O 422 of 1994 381 of 2019 are more than one plaintiffs, or other pleadings have beesnio n presented, the case shall be ready for mediation. is pe rm ut B. FIRST PRE-TRIAL SETTLEMENT AN o withD SCHEDULING CONFERENCE d ibu te str Attendance for 17.–(1) The court shall, within fourteen doary dsi from the date of orders GN. No. completion of the pleadings, on its own md ceo tion direct any party 381 of 2019 or parties to the proceedings to aprpode uar before it, for orders p or directions in relation to any ien r eterim applications or other preliminary matters which thea yp barties have raised or intend to raise as it deems fit, for thoek mjust, expeditious and economical disposal of the suit. s b o i (2) Upon hearing o tf hthe parties on an interim application, the court shall delivera irt p ts ruling within a period of fourteen days and make such. No order as to costs as it considers just. (3) Wherr d vee any party fails to appear under subrule (1), the court mareys edismiss the suit, strike out the defence, counterclaim or miagkh tes such other order as it considers just. ll r A(4) Any order or direction given or made against any party ia. anwho does not appear before the court when directed to do nza so under subrule (1), may be set aside or varied by the court f T t o on such terms as it considers just upon an application within men thirty days. ern Gov Pre-trial 18.–(1) Without prejudice to rule 17, at any time before any 02 5 conference to 2 be held when case is tried, the court may direct parties to attend a pre- © directed by court trial conference relating to the matters arising in the suit GN. No. 381 of 2019 or proceedings. (2) The court may, at the pre-trial conference, consider any matter including the possibility of settlement of all or any of 81 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the issues in the suit or proceedings and require the parties to furnish the court with any such information as it considers fit, and may give all such directions as it appears necessary or desirable for securing a just, expeditious and economical disposal of the suit or proceedings. . AG (3) The court may, at any time during the pre-trial of O conference where the parties are agreeable to a settlement osfio n some or all of the matters in dispute in the suit or proceedirnmgiss, enter judgment in the suit or proceedings or make sucuht poerder to give effect to the settlement. thoi ted w Notification 19.–(1) Parties to the proceedings shall be infor u ribmed of the date of pre-trial t conference and time appointed for the holding of the pr rde is-trial conference GN. No. in their presence or by way of notice. d oe 381 of 2019 c (2) Each party shall comply with u r oadny directions given viva voce or in such notice. e r ep y b Failure to appear 20.–(1) Where at the time apkp mo ainted for the pre-trial conference, of one or more of parties one or more of the partie o bso fails to attend, the court may- GN. No. (a) dismiss the suf ith ist or proceedings if a defaulting party is 381 of 2019 the plaintiff;rt o (b) strike ouot a N pthe defence or courter claim if a defaulting d. partyve is a defendant; (c) enestee rr judgment; or (d) tsm r h ake such other order as it considers fit. (l2 ril )g An order made by the court in the absence of a party cao. A ni ncerned or affected by the order may be set aside by the a nz court, on the application of that party within fourteen days of Ta from the date of the order, on such terms as it considers just. nt e (3) Subsequent to the first adjournment, if all parties fail to m ern attend the pre-trial conference, the court shall dismiss the suit. v 5 G o 02 Failure to comply 21. Where a party has failed to comply with any of the ©2 with directions GN. No. directions, the court may make the following orders- 381 of 2019 (a) dismiss the suit, if the non-complying party is a plaintiff; (b) strikeout the defence, if the non-complying party is a defendant; 82 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (c) order a party to pay costs; or (d) make any other order that is deemed just. Determination 22.–(1) A  judge or a magistrate to whom a case has been of speed track of case assigned shall, within a period of twenty-one days after . AG GNs. Nos. conclusion of the pleadings, hold and preside over a first pre- of O 381 of 2019 trial settlement and scheduling conference, attended by thseio n 761 of 2021 s parties or their recognised agents or advocates, for the pureprmo ise of ascertaining the speed track of the case, resolving ot p uht e case through the use of procedures for alternative dispute w ri tehsolution such as negotiation, conciliation, mediation, d uaterbitration or such other procedures not involving a trialt ribis and determine whether the trial shall proceed orally or b yor wd itness statements and giving appropriate direction in thautc eb dehalf. (2) In ascertaining the speed trackro dp of the case, the presiding judge or magistrate, shall after c e e or nsultation with the parties or their recognised agents ayo br advocates, determine the appropriate speed track foro ks u mch a case and make a scheduling order, setting out the dias tbe os or time for future events or steps in the case includin ogf t hthe use of procedures for alternative dispute resolution.art p (3) The appr o . oNpriate speed track of a case shall be determined as follows: rve d (a) s pree seed Track One shall be reserved for cases considered ts igh by the judge or magistrate to be fast cases, capable of ll r . A being or are required in the interests of justice to be niaa concluded fast within a period not exceeding ten months nz Ta from the date of the first pre-trial conference; of nt (b) speed Track Two shall be reserved for cases considered nm e by the judge or magistrate to be normal cases capable er ov of being or are required in the interests of justice to be G 25 concluded within a period not exceeding twelve months 0 ©2 from the date when mediation or arbitration or other similar alternative procedure fails; (c) speed Track Three shall be reserved for cases considered by the judge or magistrate to be complex cases capable of being or are required in the interests of 83 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] justice to be concluded within a period not exceeding fourteen  months from the date when negotiation, conciliation, mediation, arbitration or other similar alternative procedure fails; . (d) speed Track Four shall be reserved for cases considered AG O by the judge or magistrate to be special cases which n o f fall in none of the three abovementioned categoriessiois but which nonetheless need to be concluded wpei rtmhin a period not exceeding twenty-four monthous t from the date when negotiation, conciliation, mith w ediation, d arbitration or other similar alternative pbruo tecedure fails. ist ri Prohibition of 23. Where a scheduling conference o d or der is made, no amendment to ed scheduling order departure from or amendment of suchuc order shall be allowed GN. No. unless the court is satisfied that suchpr od departure or amendment 381 of 2019 is necessary in the interests of jues rb teice and the party in favour of whom such departure or ym ma endment is made shall bear the costs of such departuoroe k or amendment, unless the court directs otherwise. b f th is t o C. NEGOTIAT pIa rON, CONCILIATION, MEDIATION o ANdD. N ARBITRATION PROCEDURE rvee Reference to 24. Subj ere s s ct to the provisions of any written law, the court shall mediation and ht arbitration refer r igevery civil action for negotiation, conciliation, mediation, ll GN. No. a A ar. bitration or similar alternative procedure, before proceeding 381 of 2019 anf ior trial. an z f T Mediationnt o 25.–(1) The court shall require the parties to appoint and submit GN. Noe. 381 nomf 2019 the name of a mediator of their choice within fourteen days er ov after pleadings are complete. G 25 (2) Where the parties fail to select a mediator under subrule 0 ©2 (1), the court shall, manually or electronically, appoint a mediator and notify the parties accordingly. (3) Upon the appointment of the mediator, the court shall, within seven days, notify the parties of the commencement of the mediation session. 84 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (4) At least seven days before mediation, parties shall provide the mediator and the other parties to the suit with a statement of issues together with pleadings and any documents of importance which identify the issues in dispute and the parties’ positions and interests thereon. AG. (5) The mediator shall, within seven days of his appointment, f O o set a date for the first session of mediation which shall not bseio n later than twenty-one days from the date of his appointmernmtis. (6) The following shall qualify to be nominated pe u t under subrule (1) to act as mediators: ith o w (a) a Judge; ted (b) a registrar or deputy registrar; trib u s (c) a magistrate in case of a magistrate di osr’ court; (d) a person with the relevant qualificceadtions and experience in mediation appointed by t u rhode Chief Justice; (e) a retired judge or magistrea tr epe; or (f) a person with the relevayn ba t qualifications and experience in mediation and chko mo sen by the parties. (7) The mediators unisd b oer paragraphs (d) and (e) of subrule (6) shall be remune th roaf ted or compensated in a manner to be determined by th e rt o pa Chief Justice and published in the Gazette. (8) Where a. Nperson is chosen as the mediator by the parties under paragrvrea dph (f) of subrule (6), it shall be the responsibility of the pa e rret sies to pay fees of that mediator. htsig Purpose and 26A.–ll r(1) In conducting any mediation session under these Rules- nature of a. mediation ni (a) the parties shall strive to reduce costs and delays in a GN. No. an z dispute resolution, and facilitate an early and fair 381 of 2019 of T t resolution of disputes; and enm (b) the mediator shall facilitate communication between ernv or among the parties to the dispute in order to assist 5 G o them in reaching a mutually acceptable resolution. 20 2 (2) Without derogating from the generality of subrule (1), © the mediator- (a) shall, in an independent and impartial manner, do everything to facilitate parties to resolve their dispute; 85 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) may, where necessary, conduct joint or separate meetings with the parties and may make a proposal for a settlement; (c) may, where services of an expert may be obtained at no . cost or where such services may be obtained at a cost, OAG and if parties agree to pay such costs, obtain expert n o f advice on a technical aspect of the dispute, whic io issh advice shall be given in an independent and imppae rmtial manner and shall have advisory effect; t ou (d) shall be guided by principles of objectivity, faiit w rhness and d natural justice, and shall give considerabtui toen to, among other things: tri dis (i) the rights and obligations of dt ho re  parties; (ii) the usages of the trade conuceerned; and (iii) the circumstances suprror dounding the dispute, including any previoeu r e b s business practices between the parties; y ma (e) may, at any stage oo kf the mediation proceedings and in a manner th haist bthe mediator considers appropriate, t take into ac f rct o unt the wishes of the parties, including any reque spat by either of the parties that the mediator shall he. aN o d r oral statements for a speedy settlement of the dispruvee te; and (f) m re s ts ay, at any stage of the mediation proceedings, make h l ri g proposals for the settlement of the dispute. l a. A(3) A request for the services of an expert under this rule nmiza ay be made by the mediator with the consent of parties or by an f T any party with the consent of the other party. t on Attennmdaence to 27.–(1) The party or his advocate or both, where the parties m r vediation oGN. No. are represented shall be notified of the date of mediation and G 25 381 of 2019 shall attend at the mediation session. 0 ©2 (2) Where a third party may be liable to satisfy all or part of a judgment in the suit or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment in the suit, the third party or his advocate may also attend the mediation session, unless the court orders otherwise. 86 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Authority to settle 28.–(1) A party to a mediation session shall have authority to GN. No. 381 of 2019 settle any matter during the mediation session. (2) A  party who requires the approval of another person before agreeing to a settlement shall, before the mediation session, arrange to have ready means of communication to AG. that other person throughout the session, whether it takes of O place during or after regular business hours. sio n s rm i Failure to attend 29. Where it is not practicable to conduct a sche e t pduled GN. No. u 381 of 2019 mediation session because a party fails without goodth oi cause to attend within the time appointed for the commteedn wcement of the session, the mediator shall remit the file toib ustr the trial judge or magistrate who may- i or d (a) dismiss the suit, if the non-complydi ce ng party is a plaintiff, or strike out the defence, if th u roed non-complying party is a defendant; re p e (b) order a party to pay coasyt s b; or (c) make any other ordoekr m he deems just. is bo Restoration of 30.–(1) A  party aggorf i tehved by an order made under rule 29 suit dismissed for non-appearance shall, within sevena drt p ays from the date of the order, file in court to mediation an application o Nfor restoration of a suit or a written statement GN. No. . 381 of 2019 of defence. ed (2) These rv re court shall hear and determine such application withiignh tfsourteen days from the date of lodging the application. A(ll 3 r) Upon the applicant showing good cause the court shall siae.n t aside orders made under rule 29 of this Order and restore za an the suit or the defence and remit the case to the mediator who of T t shall issue a notice for mediation. n me Co ve nrnfidentiality 31. All communications at a mediation session and the oGN. No. G381 of 2019 mediation notes and records of the mediator shall be 25 20 confidential and a party to a mediation may not rely on the © record of statement made at or any information obtained during the mediation as evidence in court proceedings or any other subsequent settlement initiatives, except in relation to proceedings brought by either party to vitiate the settlement agreement on the grounds of fraud. 87 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Duration of 32. The mediation period shall not exceed a period of mediation GN. No. thirty days from the date of the first session of mediation. 381 of 2019 End of mediation 33. A mediation shall come to an end when- GN. No. 381 of 2019 (a) the parties execute a settlement agreement; AG. (b) the mediator, after consultation with the parties, makes O of a declaration to the effect that further mediation is n io sost n worthwhile; or erm i (c) thirty days expire from the date of the firsto us t epssion of mediation. ith w ted Duty to remit 34. At the conclusion of the mediation thse u tr ibmediator shall case to trial court GN. No. remit the record to the trial court immore ddi iately or within 381 of 2019 forty eight hours. d e du c ro Procedure on 35. Any matter in dispute referred p r eto arbitration under a court arbitration GN. No. order shall be dealt with as payr boevided for under the Second 381 of 2019 Schedule to this Code. k mo bo Agreement 36.–(1) At the reques s f th iof any party and with consent of the to resolve dispute through other party, the caort uort may refer any matter in dispute to negotiation or negotiation or c Noon pciliation, and such matter shall be dealt with conciliation in accordanvc . eed with the applicable law and the agreement of GN. No. r 381 of 2019 the partirees e to negotiate or conciliate and arrive at a settlement. (2) hThts e parties shall bear costs arising from or incidental to suchl r igl negotiations or conciliation. ia. A n Duration of a nz 37. The negotiation or conciliation period shall not exceed negotiation oTr a conciliationof a period of thirty days from the date the trial court referred GN. No t e.n the matter to negotiation or conciliation unless otherwise 201r9nme extended by the trial court. ov 5 G 02 Closure of 38. A  negotiation or conciliation shall come to a conclusion ©2 negotiation or conciliation when- GN. No. (a) the parties execute a settlement agreement and notify 381 of 2019 the court within the prescribed period for negotiation or conciliation; 88 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) one of the parties or both makes, a declaration to the effect that further negotiation or conciliation is not worthwhile; or (c) thirty days or such other period as may be extended by G. the trial court expire. A of O Duty to remit 39. At the conclusion of negotiation or conciliation as stated i n snio agreement to trial s court rule 38(a) parties shall remit the settlement agreement to i er mthe GN. No. trial court immediately or within forty-eight hours. ut p 381 of 2019 ith o w D. FINAL PRE-TRIAL SETTLEMENT ANDd te SCHED- u ULING CONFERENCE trib disr Final pre-trial 40.–(1) Where a suit is not resolved by negdo oe tiation, conciliation, conference GN. No. mediation, arbitration or other simila u ord aclternative procedure it 381 of 2019 shall revert to the trial judge or m rae pgristrate for a final pre-trial settlement and scheduling conf beey rence, to enable the court to schedule the future events aknmd a steps which are bound or likely to arise in the conduct of b oth o e case, including framing of issues and the date or dates ff toh irs trial. (2) In making aar tfi onal pre-trial conference order, the court shall be guided N ob py the speed track to which the specific case is allocated. d. ve (3) Thees efi rnal pre-trial settlement and scheduling conference shall b r hets held within a period of fourteen days from the date whell nri g negotiation, conciliation, mediation or arbitration or oat. h A i er similar procedures failed. an nz Lapse of spefe Td a 41. Where the assigned speed track of a case runs its course track of cat soe GN. Noe.n before the conclusion of the suit, the court shall- 38e1r no mf 2019 (a) where the delay is caused by the plaintiff, dismiss the ov G suit with costs; 5 02 (b) where the delay is caused by the defendant; ©2 (i) strike out the defence or counter claim with costs; (ii) proceed ex parte if the plaintiff had not closed his case; or 89 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (iii) determine the suit on the basis of the adduced evidence, if the plaintiff had closed his case; and (c) where neither party is to blame for the delay, extend time not exceeding half the period of the assigned speed track. AG. O of ORDER IX ion iss APPEARANCE OF PARTIES AND CONSEQUEN pCe rmES t OF NON-APPEARANCE tho u w i 1. On the day so fixed for hearing, the partiuetse d Parties to appear b shall be in on day fixed for ri hearing attendance at the day fixed for court-hous deis tin person or by GN. No. their respective recognised agents or aedd voor cate, and the suit 381 of 2019 shall then be heard unless the hearinogd uics adjourned to a future date to be fixed by the court. pre be r Where neither 2. Where neither party app y me aars when the suit is called on party appears suit to be dismissed for hearing the court mbao oyk make an order that the suit be GN. No. dismissed. thi s 381 of 2019 f rt o Plantiff may bring 3. Where a suit oi ps a dismissed under rule 2, the plaintiff may, fresh suit or court may restore the subject to thed . l Naw of limitation bring a fresh suit, or he may e suit apply to seetrvs aside the dismissal order, and if he satisfies the GNs. Nos. court tths ar et there was good cause for his non-appearance, the 381 of 2019 h 885 of 2019 coullr rti g shall set aside the dismissal order and shall appoint a daa. A i y for proceeding with the suit. n za Procedure n f T a 4. Where the court has adjourned the hearing of the suit ex- where defe ondant appears notn day parte and the defendant at or before such hearing, appears e of ardnjmourned and assigns good cause for his previous non-appearance, he ohve earing and assigns good may, upon such terms as the court may direct as to cost or 25 G 0 cause for previous otherwise, be heard in answer to the suit as if he had appeared ©2 non-appearance. GNs. Nos. on the date fixed for his appearance. 381 of 2019 885 of 2019 90 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Procedure where 5. Where the defendant appears and the plaintiff does not defendant only appears appear when the suit is called on for hearing, the court shall GNs. Nos. make an order that the suit be dismissed unless the defendant 381 of 2019 885 of 2019 admits the claim, or part thereof, in which case the court shall . pass a decree against the defendant upon such admission and, OAG where part only of the claim has been admitted, shall dismiss n o f the suit so far as it relates to the remainder. siois erm Decree against 6.–(1) Where a suit is wholly or partly dismissed under tr pou ule 5, plaintiff by default bars fresh the plaintiff shall be precluded from bringing a fr ith wesh suit in suit respect of the same cause of action, but he mauyte a dpply for an GNs. Nos. 381 of 2019 order to set the dismissal aside and, if he sisatrt iibsfies the court 885 of 2019 that there was sufficient cause for his nonr -d o appearance when the suit was called on for hearing, thucee dcourt shall make an order setting aside the dismissal upoprno d such terms as to costs or otherwise as it thinks fit and shabll e e arppoint a day for proceeding with the suit. y ma (2) An order shall not boe km o ade under this rule unless notice of the application has bheise bn served on the opposite party. f t Procedure in case 7. Where there area mrt o p ore than one plaintiffs and one or more of of non-attendance of one or more of them appear an. Nd o the others do not appear the court may, at the several plaintiffs instance ofe rtvh ede plaintiff or plaintiffs appearing, permit the suit GNs. Nos. 381 of 2019 to proce ered s in the same way as if all the plaintiffs had appeared s 885 of 2019 or makhtrig e such order as it thinks fit. ll A Procedure in an8 ia.. Where there are more than one defendants, and one or case of non- an z attendance of one more of them appear, and the others do not appear, the suit T or more of osf t everal shall proceed and the court shall, at the time or pronouncing defendaennts GNs. mNos. judgment, make such order as it thinks fit with respect to the ern o3v81 of 2019 defendants who do not appear. G885 of 2019 250 ©2 91 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Setting Aside Decrees Ex Parte Setting aside 9. In any case in which a decree is passed ex parte against a decree or judgment ex parte defendant, he may apply to the court by which the decree was . against defendant passed for an order to set it aside; and if he satisfies the court G GNs. Nos. A 422 of 1994 that he was prevented by any sufficient cause from appearing of O 381 of 2019 when the suit was called on for hearing, the court shall makeio ns 885 of 2019 s an order setting aside the decree as against him upon i esrmuch terms as to costs, payment into court or otherwise as oit p u tt hinks fit, and shall appoint a day for proceeding with the  wsuithit: Provided that, where the decree is of such au tne dature that it cannot be set aside as against such defendant r isotn ibly it may be set aside as against all or any of the other defenr dd o ants also. edc No decree or 10. A decree or judgment shall not bduo e set aside on any such judgment to be r set aside without application as aforesaid unless notreipe ce thereof has been served notice to opposite on the opposite party or thaye b persons who have entered party m GNs. Nos. appearance on behalf of su oo ckh party. 381 of 2019 b 885 of 2019 is of th ORDER X t EXAMINATIaOro p N OF PARTIES BY THE COURT . Nd Ascertainment 1. At the efirvr est hearing of the suit, the court shall ascertain whether res allegations in from eatsc h party or his advocate whether he admits or denies pleadings are such r iga hllegations of facts as are made in the plaint or written admitted or l denied s Al at.a tement, if any, of the opposite party, and as are not expressly ano i z r by necessary implication admitted or denied by the party n f T a against whom they are made and the court shall record such nt o admissions and denials. me rn oOvr eal examination 2. At the first hearing of the suit, or at any subsequent hearing, 5 Gof party or 2 companion of any party appearing in person or present in court, or any 0 ©2 party person able to answer any material questions relating to the suit by whom such party or his advocate is accompanied, may be examined orally by the court; and the court may, if it thinks fit, put in the course of such examination questions suggested by either party. 92 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Substance of 3. The substance of the examination shall be reduced to examination to be written writing by the judge or magistrate and shall form part of the record. Consequence 4.–(1) Where the advocate of any party who appears by an G. of refusal or A inability of advocate or any such person accompanying an advocate as is f O o advocate to referred to in rule 2 refuses or is unable to answer any materiasilo n answer s question relating to the suit which the court is of opinion i e rtmhat the party whom he represents ought to answer, and oius t plikely to be able to answer if interrogated in person, the th wci ourt may postpone the hearing of the suit to a future day atnedu d direct that such party shall appear in person on such daiyst.r ib (2) Where such party fails without lawfur d o l excuse to appear in person on the day so appointed, thuec ec dourt may pronounce judgment against him or make suc d phro order in relation to the suit as it thinks fit. e r e y b ORk m a DER XI oo DISCOVERs bthi Y AND INSPECTION rt o f Discovery by 1. In any suit the ppao laintiff or defendant, by leave of the court, interrogatories may deliver in N d.t errogatories in writing for the examination of e the oppossietre v parties or any one or more of such parties, and such intst er errogatories when delivered shall have a note at the foot tighhll r ereof stating which of such interrogatories each of such pe. Aia rsons is required to answer: n za Provided that, no party shall deliver more than one set Tan f of interrogatories to the same party without an order for t o en that purpose: rnm Provided further that, interrogatories which do not relate to ov e any matters in question in the suit shall be deemed irrelevant, 5 G 02 notwithstanding that they might be admissible on the oral ©2 cross-examination of a witness. Particular 2. On an application for leave to deliver interrogatories, the interrogatories to be submitted particular interrogatories proposed to be delivered shall be submitted to the court and in deciding upon such application, 93 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the court shall take into account any offer which may be made by the party sought to be interrogated to deliver particulars, or to make admission, or to produce documents relating to the matters in question, or any of them, and leave shall be given as G. to such only of the interrogatories submitted as the court shall OA consider necessary either for disposing fairly of the suit or for f ion o saving costs. iss erm Costs of 3. In adjusting the costs of the suit, inquiry shall, at the inut s ptance interrogatories o of any party, be made into the propriety of exhi ith bw ting such interrogatories, and if it is the opinion of the tauxtein d g officer or of the court, either with or without an applicatrtiis ibon for inquiry, that such interrogatories have been exh iobr idted unreasonably, vexatiously, or at improper length, the cedu ost occasioned by the said interrogatories and the answer trhodp ereto shall be paid in any event by the party in fault. re y b e a Interrogatories 4. Where any party to a osku mit is a corporation or a body of relating to bo corporations persons, whether incorips orated or not, empowered by law to sue or be sued, whet hfe tho r in its own name or in the name of any t officer or other p pear rson, any opposite party may apply for an order allowindg Nho. im to deliver interrogatories to any member or officer oerfv esuch corporation or body, and an order may be made a e sc cr osrdingly. ht rig Objections to 5. All . ny objection to answering any interrogatory on the ground interrogatories by ia answer anthat it is scandalous or irrelevant or not exhibited bona fide for z Tan the purpose of the suit, or that the matters inquired into are of t not sufficiently material at that stage, or on any other grounds, men n may be taken in the affidavit in answer. er ov 5 GSetting aside 6. Any interrogatories may be set aside on the ground that they 2 ©20 and striking out interrogatories have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories. 94 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Filing of affidavit 7. Interrogatories shall be answered by affidavit to be filed within in answer ten days or within such other time as the court may allow. No exception to 8. Exception shall not be taken to any affidavit in answer, but be taken the sufficiency or otherwise of any such affidavit objected to as . AG insufficient shall be determined by the court. f O o sio n Order to answer 9. Where any person interrogated omits to answer, or answeisrm rs or answer further GN. No. insufficiently, the party interrogating may apply to the e ut pcourt 376 of 1968 for an order requiring him to answer, or to answethroi further and an order may be made requiring him to answteed rw or answer further, either by affidavit or by viva voce exastmr ibuination, as the court may direct: di or Provided that, no order shall be macedde requiring a person to answer or answer further where ra u odny enactment or rule of law authorises or requires the ref p uresal to answer any question on the ground that the answ b aeyrine g of the question would be injurious to the public interke mst. o bo Application for 10. Any party may, wf thit ishout filing any affidavit, apply to the discovery of documents court for an order drit a roecting any other party to any suit to make discovery on oatoh pGN. No. of documents which are or have been in his 376 of 1968 N possession ovred p . ower, relating to any matter in question therein and on trhese e rhearing of such application the court may either refuse h tosr adjourn the same, if satisfied that such discovery is g not l nriAl ecessary, or not necessary at the stage of the suit, or make nsiau . ch order, either generally or limited to certain classes of nz a a documents, as may, in its discretion, be thought fit: f T t o Provided that, discovery shall not be ordered when and so n me far as the court shall be of opinion that it is not necessary either ernv for disposing fairly of the suit or for saving costs: G o Provided further that, discovery shall not be ordered where 02 5 2 there is produced to the court a certificate under the hand of a © Minister that, in his opinion, discovery, either generally or in relation to a certain document or a certain class of documents, would be injurious to the public interest. 95 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Affidavit of 11. The affidavit to be made by a party against whom such documents order as is mentioned in rule 10 has been made, shall specify which, if any, of the documents therein mentioned he objects to produce. . AG Production of 12. It shall be lawful for the court, at any time during the O of documents GN. No. pendency of any suit to order the production, by any par ion is tsy 376 of 1968 thereto upon oath, of such of the documents in his possesersmion or power, relating to any matter in question in such t o usupit, as the court shall think right, and the court may th w ideal with such documents when produced, in such maunten d er as shall appear just: tribis Provided that, production shall not r d o be ordered of a document where any enactment or ed urcule of law authorises or requires the withholding of thep rdo document on the ground that the disclosure of the docume nree t would be injurious to the public interest. y ba k mo Inspection of 13. Every party to a suit ssh ba oll be entitled at any time to give notice documents i referred to in to any other party inof twh hose pleadings or affidavits reference pleadings or is made to any do pac rut ment, to produce such document for the affidavits inspection of thNeo . party giving such notion or his advocate, and to permit himedrv or them to take copies thereof, and any party not complyin e reg s with such notice shall not afterwards be at liberty to puigth tasny such document in evidence on his behalf in such su. Ait ll ur nless he shall satisfy the court that such document relates ano ianly to his own title, he being a defendant to the suit or that z Tan he had some other cause or excuse which the court shall deem of t sufficient for not complying with such notice, in which case en nm the court may allow the same to be put in evidence on such er ov terms as to costs and otherwise as the court shall think fit. 25 G 0 ©2 Time for 14. The party to whom such notice is given shall, within ten inspection when notice given days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office 96 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] of his advocate, or in the case of banker’s books or other books of account or books in constant use for the purpose of any trade or business, at their usual place of custody, and stating which, if any, of the documents he objects to produce, and on . what ground. AG of O n Order for 15.–(1) Where the party served with notice under rule 1ss4i o inspection mi GN. No. omits to give such notice of a time for inspection or objecetrs to 376 of 1968 give inspection or offers inspection elsewhere than at tohue t p office of his advocate the court may, on the application o wfi ththe party desiring it, make an order for inspection in sucuhte p d lace and in such manner as it may think fit: tribis Provided that, the order shall not be moard d e when and so far as the court shall be of opinion that itu ies d c not necessary either for disposing fairly of the suit or forp rsoa dving costs. (2) An application to inspect e e rdocuments, except such as are referred to in the pleadingasy, bparticulars or affidavits of the party against whom the a m opkplication is made or disclosed in his affidavits of documesn bi tos, shall be founded upon an affidavit showing of what dofc tuho ments inspection is sought, that the party applying is pean rtt itled to inspect them and that they are in the possession. No or power of the other party, the court shall not make such rover dder for inspection of such documents when and so far as r et shee court shall be of opinion that it is not necessary eitherg hf tos r disposing fairly of the suit or for saving costs. A(ll3 ri) Notwithstanding anything contained in this rule, an no iar. der for inspection of documents shall not be made where a an z there is produced to the court a certificate under the hand of a of T Minister that in his opinion, inspection would be injurious to en t the public interest. ern m ov GVerified copies 16.–(1) Where inspection of any business books is applied for, 25 GN. No. 20 376 of 1968 the court may, if it thinks fit, instead of ordering inspection of © the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations: 97 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Provided that, notwithstanding that such copy has been supplied, the court may order inspection of the book from which the copy was made. (2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the AG. court to inspect the document for the purpose of deciding as of O to the validity of the claim of privilege. sio n (3) The court may, on the application of any party to a rmsuisit at any time, and whether an affidavit of documents sh paeut ll or shall not have already been ordered or made, makeit haon order requiring any other party, other than the Attorne teyd wGeneral to state by affidavit whether any one or more spe u tcribfic documents, to be specified in the application, is or arer ,d ios r has or have at any time been in his possession or pow d o ceer, and, if not then in his possession when he parted withro dt uhe same and what has become thereof. rep (4) An application made und ebey r subrule (3) shall be made on an affidavit stating that in thk me abelief of the deponent the party against whom the applica btoi oon is made has, or has at some time had, in his possessionf t ho isr power the document or documents specified in the ap o aprtlication and that they relate to the matters in question in tNhoe p suit or to some of them. ed . Premature 17. Whersee r vthe party from whom discovery of any kind or discovery inspecttsio r e h n is sought objects to the same or any part thereof the ll cri gourt may, if satisfied that the right to the discovery or iian. s Apection sought depends on the determination of any issue an nz or question in dispute in the suit, or that for any other reason f T a o it is desirable that any issue or question in dispute in the suit t en should be determined before deciding upon the right to the ern m discovery or inspection, order that such issue or question be v G o determined, first, and reserve the question as to the discovery 02 5 or inspection. ©2 Non-compliance 18. Where any party fails to comply with any order to answer with order for discovery interrogatories or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution and if a defendant, to have his defence, 98 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect and an order may be made accordingly. AG. Using answers to 19. A party may, at the trial of a suit, use in evidence any one O of interrogatories n o at trial or more of the answers or any part of an answer of the oppositseis party to interrogatories without putting in the others oerr mt ihe whole of such answer: p ou t Provided that, in such case the court may look at itthw he whole of the answers and, if it shall be of opinion thutaet d any others of them are so connected with those put sitnr ib that the last- mentioned answers ought not to be used wori t dhi out them, it may direct them to be put in. ed uc rod Application of 20. This Order shall apply to min p orer plaintiffs and defendants, order to minors and to the next friends and gauya bredians for the suit of persons under disability. k m bo o thi s of ORDER XII rt pa ADMISSIONS No d. Notice of 1. Any parrtvyee to a suit may give notice, by his pleading or admission of case otherwiss re es in writing, that he admits the truth of the whole or any p ht rigart of the case of any other party. ll . A Notice to admit an2 ia. Either party may call upon the other party to admit any documents z Tan document, saving all just exceptions, and in case of refusal t o f or neglect to admit after such notice, the costs of proving any en nm such documents shall be paid by the party so neglecting or er ov refusing, whatever the result of the suit may be, unless the G 25 court otherwise directs and no costs of proving any document 0 ©2 shall be allowed unless such notice is given except where the omission to give the notice is, in the opinion of the court, a saving of expense. 99 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Notice to admit 3. Any party may, by notice in writing, at any time not later than facts nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts mentioned in such notice, and in case of refusal or . neglect to admit the same within six days after service for such G OA notice, or within such further time as may be allowed by the n o f court, the costs of proving such fact or facts shall be paid by thseiois party so neglecting or refusing, whatever the result of thpee rmsuit may be, unless the court otherwise directs: ut o Provided that, any admission made in pursuan ith wce of such notice is to be deemed to be made only for the puuter dposes of the particular suit, and not as an admission to beis tur ibsed against the party on any other occasion or in favour or f d any person other than the party giving the notice: d uc e Provided further that, the court pmro day at any time allow any party to amend or withdraw anye ar edmission so made on such terms as may be just. y b m a ok Judgment on 4. Any party may at any ss tbi aoge of a suit, where admissions of fact admissions have been made eith th oefr on the pleading, or otherwise, apply to the court for such p aju rtdgment or order as upon such admissions he may be enti.t lNe od to, without waiting for determination of any other questrivoe dn between the parties; and the court may upon e such apprelis cation make such order, or give such judgment, as the co ts rig hurt may think just. All . Affidavit of n5ia. An affidavit of the advocate or his clerk, of the due signature signature za an of any admission made in pursuance of any notice to admit f T t o documents or facts, shall be sufficient evidence of such enm admission, if evidence thereof is required. ernv 5 G oEvidence of 6. An affidavit of the advocate or his clerk, of the service of any 02 notice to produce 2 documents notice to produce and of the time when it was served, with a © copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice and of the time when it was served. 100 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Costs 7. Where a notice under rule 6 is a notice to admit or produce specified documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice. G. A ORDER XIII of O on PRODUCTION, IMPOUNDING AND i issm RETURN OF DOCUMENTS r pe ou t ith Documentary 1.–(1) The parties or their advocates shall produced ,w at the first evidence to be e produced at first hearing of the suit, all the documentary eviridb uetnce of every t hearing description in their possession or power, on dwisr hich they intend GN. No. 375 of 1966 to rely and which has not already been efid loed in court, and all documents which the court has ordereudcod to be produced. (2) The court shall receive threep r document so produced provided that they are accompan biey ed by an accurate list thereof, prepared in such form as thke m H a igh Court directs. oo Effect of non- s bi production of 2. Documentary evidethnce in the possession or power of any documents party which should ohfrt ave been, but has not been produced in accordance with t hpao e requirements of rule 1 shall not be received at any subseqeud .e Nnt stage of the proceedings unless good cause is shown to rv stehe satisfaction of the court for the non-production thereohft,s arend the court receiving any such evidence shall record the llr rei gasons for so doing. a. A i Rejection of n za 3. The court may, at any stage of the suit, reject any document irrelevant or an inadmissiblef T which it considers irrelevant or otherwise inadmissible, o documeenntt s recording the grounds of such rejection. rnm oEvn edorsements 4.–(1) Subject to the provisions of the subrule (2), there shall 5 Gon documents 2 admitted in be endorsed on every document which has been admitted in 20© evidence evidence in the suit the following particulars: (a) the number and title of the suit; (b) the name of the person producing the document; (c) the date on which it was produced; 101 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (d) a statement of its having been so admitted; and (e) the endorsement shall be signed or initialed by the judge or magistrate. (2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted G. A for the original under rule 5, the particular aforesaid shall be f O o endorsed on the copy and the endorsement thereon shall bssei o n signed or initialed by the judge or magistrate. erm i ut p Endorsements 5.–(1) Save in so far as is otherwise provided by thei thEovidence on copies of admitted entries Act, where a document admitted in evidence tiend wthe suit is in books, an entry in a letter-book or a shop-book or sotr itbhuer account in accounts and records current use, the party on whose behalf the r bd i o ook or account is Cap. 6 produced may furnish a copy of the entcreyd. (2) Where such a document is an deuro ntry in a public record produced from a public office or b p e yr e a public officer, or an entry in a book or account belonginagy bto a person other than a party on whose behalf the book ko mo r account is produced, the court may require a copy of thse b oentry to be furnished- i (a) where the reocf o thrd, book or account is produced on behalf of ap ap rta rty, then by that party; or (b) where o . tNhe record, book or account is produced in obedrviee dnce to an order of the court acting of its own m reo setion, then by either or any party. (3 ts i)g h Where a copy of an entry is furnished under the pro r A lvl isions of this rule, the court shall, after causing the copy ntiao . be examined, compared and certified in manner mentioned za an in rule 17 of Order VII, mark the entry and cause the book, T t o f account or record in which it occurs to be returned to the n me person producing it. rn ov e GEndorsements 6. Where a document relied on as evidence by either party 02 5 on documents ©2 rejected as is considered by the court to be inadmissible in evidence, inadmissible in there shall be endorsed thereon the particulars mentioned in evidence clauses (a), (b) and (c) of subrule (1) of rule 4 together with a statement of its having been rejected, and the endorsement shall be signed or initialed by the judge or magistrate. 102 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Recording 7.–(1) Every document which has been admitted in evidence, of admitted documents and or a copy thereof where a copy has been substituted for the return of rejected original under rule 5, shall form part of the record of the suit. documents (2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively . AG producing them. of O n sio Court may order 8. Notwithstanding anything contained in rule 5 or rurlme i s7 any document to be impounded of this Order or in rule 17 of Order VII, the court ma ypeut , if it sees sufficient cause, direct any document or book o w itp hroduced before it in any suit to be impounded and kept inted t he custody u of an officer of the court for such period and ib str subject to such i conditions as the court thinks fit. or d d ce Return of 9.–(1) Any person whether a party tor otdh ue suit or not, desirous of admitted documents receiving back any document pro ep ed r uced by him in the suit and placed on the record shall, unlaeys bs the document is impounded under rule 8, be entitled too rk e mceive back the same- (a) where the suit is bo i so ne in which an appeal is not allowed, when the sui th to fhas been disposed of; or (b) where the p as rut it is one in which an appeal is allowed, when t.h Ne o court is satisfied that the time for preferring an arvpep d eal has elapsed and that no appeal has been sep rreeferred or, if an appeal has been preferred, when the hts rig appeal has been disposed of: . AP ll rovided that, a document may be returned at any time ane iaarlier than that prescribed by this rule if the person applying z Tan therefor delivers to the proper officer a certified copy to be of t substituted for the original and undertakes to produce the n me original if required to do so: rn ve Provided further that, no document shall be returned which, o 5 G by force of the decree, has become wholly void or useless. 20 2 (2) On the return of a document admitted in evidence, a © receipt shall be given by the person receiving it. 103 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Court may send 10.–(1) The court may, on its own motion, and may in its for papers from its own records or discretion upon the application of any of the parties to a from other courts suit, send for, either from its own records or from any other court, the record of any other suit or proceeding, and inspect . the same. AG (2) Every application made under this rule shall, unless the f O n o court otherwise directs be supported by an affidavit showinissg io how the record is material to the suit in which the applicaertmion is made, and that the applicant cannot without unreasuto p o nable delay or expense obtain a duly authenticated copy of tithh w e record or of such portion thereof as the applicant requtue dires, or that the production of the original is necessary isftor ibr the purposes of justice. r d o (3) This rule shall not be deemed to ceendable the court to use in evidence any document which urnodd uer the law of evidence would be inadmissible in the suit. re p be ay Provisions as to 11. The provisions herein cko mntained as to documents shall, as documents also applicable to far as may be, apply to aboll o s other material objects producible material objects as evidence. thi of pa rt . N o ORDER XIV d SETTLEMrvee ENT OF ISSUES AND DETERMINATION OFts Sr eUs ITS ON ISSUES OF LAW OR ON ISSUES igh AGREED UPON All r ia. Framing of issuesza n1.–(1) Issues arise when a material proposition of fact or law is an f T affirmed by one party and denied by the other. nt o (2) Material propositions are those propositions of law or e rnm fact which plaintiff must allege in order to show a right to sue e ov or a defendant must allege in order to constitute his defence. 25 G (3) Each material proposition affirmed by one party and 0 ©2 denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds- (a) issues of fact; and (b) issues of law. 104 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (5) At the first hearing of the suit the court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame . OAG and record the issues on which the right decision of the case f appears to depend. ion o s (6) This rule shall not be construed as to require the cormu isrt to frame and record issues where the defendant at tuh e t ep first hearing of the suit makes no defence. tho wi ted Issues of law and 2. Where issues both of law and of fact arise itrnib uthe same suit, of fact and the court is of opinion that the case o s r dr i any part thereof may be disposed of on the issues of lawc eod no ly, it shall try those issues first, and for that purpose maryo,d uif it thinks fit, postpone the settlement of the issues of fac tr eu p ntil after the issues of law have been determined. e ay b m Materials from 3. The court may fram ok ebo the issues from all or any of the which issues may be framed following materials: is f th (a) allegations mrt oa ade on oath by the parties, or by any person present Noon p their behalf, or made by the advocates of such pedrv a. rties; (b) a e rlelsegations made in the pleadings or in answers to htsg i nterrogatories delivered in the suit; (llc riA ) the contents of documents produced by either party. nia . Court may zan 4. Where the court is of opinion that the issues cannot be examine Ta witnesses oorf correctly framed without the examination of some person not documeenntts before before the court or without the inspection of some document framrnimng issues ve not produced in the suit, it may adjourn the framing of the G o issues to a future day, and may, subject to any law for the 25 20 time being in force, compel the attendance of any person © or the production of any document by the person in whose possession or power it is, by summons or other process. 105 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Power to amend 5.–(1) The court may at any time before passing a decree, and strike out issues amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy . between the parties shall be so made or framed. AG (2) The court may also, at any time before passing a decree, of O n strike out any issues that appear to it to be wrongly framesdiois or introduced. ermp ut Questions of fact 6. Where the parties to a suit are agreed as to the qwu o ithestion of or law may by agreement be fact or of law to be decided between them, they md ay state the ute stated in form of same in the form of an issue, and enter intos tar inb agreement in issues i writing that, upon finding of the court in t ohr ed affirmative or the negative of such issue- ed uc (a) a sum of money specified ipnro dthe agreement or to be ascertained by the courte, r eor in such manner as the court may direct, shalla yb be paid by one of the parties to the other of them, oork m o that one of them shall be declared entitled to somse bi right or subject to some liability h specified in tt h fe to  agreement; (b) some pro pae rrty specified in the agreement and in o disputed. i Nn the suit shall be delivered by one of the parties to tehrve e other of them, or as that other may direct; or (c) tso rn ese or more of the parties shall do or abstain from rig h doing some particular act specified in the agreement All a. and relating to the matter in dispute. i za n Court, if satis n Tfiaed 7. Where the court is satisfied, after making such inquiry as it that agreemofe nt was exe t ecnut ed deems proper- in gonomd faith, (a) that the agreement was duly executed by the parties; mvaeyr pronounce ojudgment (b) that they have a substantial interest in the decision of 5 G such question as aforesaid; and 20 2 © (c) that the same is fit to be tried and decided, it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by court and shall, upon the finding or decision on such issue, pronounce judgment according to the terms 106 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] of the agreement, and, upon the judgment so pronounced, a decree shall follow. ORDER XV . DISPOSAL OF THE SUIT AT FIRST HEARING G OA n o f Parties not at 1. Where at the first hearing of a suit it appears that the partiisess io issue are not at issue on any question of law or of fact, the courte mrm p ay at once pronounce judgment. t tho u w i One of several 2. Where there are more than one defendants, aunted d b any one of defendants not at issue the defendants is not at issue with the plaintiffist ro i n any question d of law or of fact, the court may at once, r dp oronounce judgment for or against such defendant and thedu cseuit shall proceed only against the other defendants. rep ro be Parties at issue 3.–(1) Where the parties are y a at issue on some question of m law or of fact, and issueso oh k ave been framed by the court as hereinbefore provided, isif bh the court is satisfied that no further argument or evide t tn oc f e than the parties at once adduce is r required upon su cphao issues as may be sufficient for the decision of the suit, an.d Nd that no injustice will result from proceeding with the ssueri vte forthwith, the court may proceed to determine such istss ur ees and, if the finding thereon is sufficient for the decil sriigo hn, may pronounce judgment accordingly. A a. (l2) Where the finding is not sufficient for the decision, the n za ci ourt shall postpone the further hearing of the suit and shall an f T fix a day for the production of such further evidence or for nt o such further argument as the case requires. e ern m oFvailure to 4. Where a summons to appear has been issued by a court 5 Gproduce evidence 2 other than the High Court and either party fails without 20© sufficient cause to produce the evidence on which he relies, the court may at once pronounce judgment, or may, if it thinks fit, after framing and recording issues, adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues. 107 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES Summons 1. At any time after the suit is instituted, the parties may obtain, . to attend, to give evidence on application to the court, or to such officer as it appoints on AG O or produce this behalf, summonses to whose attendance is required either n o f documents o to give persons evidence or to produce documents. i iss rm pe Expenses of 2.–(1) The party applying for a summons shall, beofuo t re the witnesses h summons is granted and within a period to bed fiitw xed, pay into court such sum of money as appears to thtee court to be ibu sufficient to defray the traveling and othe t dris er xpenses of the person summoned in passing to and fromd o r the court in which he is required to attend, and for one daycedu  attendance. (2) In determining the amoun r ept opayable under this rule the court may, in the case of aney r b person summoned to give evidence as an expert, allow m r aeyasonable remuneration for the time occupied both in givionko g evidence and in performing any work of an expert char b thaiscter necessary for the case. (3) Where the corut or f t is subordinate to the High Court regard shall be had, in fi pxao ing the scale of such expenses, to any rules made in that bd.e Nhalf. erv e Tender of 3. The su rem s so paid into court shall be tendered to the person expenses to summigh ts witnesses r oned, at the time of serving the summons, if it can be se . rAv lled personally. niaa Procedure whearne z 4.–(1) Where it appears to the court or to such officer as it insufficient o f T sum paid tin appoints on this behalf that the sum paid into court is not n and emxpeenses sufficient to cover such expenses or reasonable remuneration, of ewrnitnesses odvetained more the court may direct such further sum to be paid to the person 5 G2 than one day summoned as appears to be necessary on that account and, in ©20 case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons, or the court may discharge the person summoned without requiring him to give evidence, or may both order such levy and discharge such person. 108 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) Where it is necessary to detain the person summoned for a longer period than one day the court may order the party at whose instance he was summoned to pay into court such sum as is sufficient to defray the expenses of his detention for such further period and, in default of such deposit being made, AG. may order such sum to be levied by attachment and sale of the O of movable property of such party, or the court may discharge theio ns person summoned without requiring him to give evidencrem ios r may both order such levy and discharge such person. pe ut ith o Time, place 5. Every summons for the attendance of a pe w terdson to give and purpose of attendance to evidence or to produce a document shall spectriifby u the time and place at which he is required to attend andd isbe specified in r also whether his summons attendance is required for the purpose ocef dg oiving evidence or to produce a document or for both purropdo u ses, and any particular document which the person summreope ned is called on to produce shall be described in the summayo bns with reasonable accuracy. k m Summons 6. A  person may be s ubom o moned to produce a document to produce document without being summfo thn ised to give evidence, and any person summoned merelya rtt oo produce a document shall be deemed to p have complied Nwo i th the summons if he causes such document . to be prodruvec ded instead of attending personally to produce the samer. s e ts e 7. A r ipg h Power to require ll erson present in court may be required by the court to persons present in court to ngiai . vAe evidence or to produce any document then and there in give evidence nz a a his possession or power. or produce T document of Provided that, the court shall not require a person to produce ntGN. Noe. a document where any enactment or rule of law authorises or 376r nomf 1968 e requires the withholding of the document on the ground that ov G the production of the document would be injurious to the 250 public interest. ©2 Manner of 8. Every summons under this Order shall be served as nearly services of summons as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply in the case of all summonses served under this rule. 109 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Time for serving 9. Service shall in all cases be made in sufficient time before the summons time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for traveling to the place at which his attendance is required. G. A Procedure where 10.–(1) Where a person to whom a summons has been issued f Oo witness fails to comply with either to attend to give evidence or to produce a documenstio n s summons fails to attend or to produce the document in compliancee wrmiith such summons, the court shall, if the certificate of the ste pou rving officer has not been verified by affidavit, and may, if wiit th has been so verified, examine the serving officer on oathu, teo dr cause him to be so examined by another court, regardiisntrg ib the service or non-service of the summons. or d (2) Where the court sees reason to be ed ulcieve that such evidence or production is material, and thatp rsou d ch person has, without lawful excuse, failed to attend ore tro e produce the document in compliance with such summoany bs or has intentionally avoided service, it may issue a procolak m m ation requiring him to attend to give evidence or to prodisu b oce the document at a time and place to be named therein o,f thand a copy of such proclamation shall be affixed on the poau rtter door or other conspicuous part of the house in which o . N he ordinarily resides. (3) In lie d rvue of or at the time of issuing such proclamation, or at an e rye s time afterwards, the court may, in its discretion, issuei gah t swarrant, either with or without bail, for the arrest of su r Aclhl person, and may make an order for the attachment of hiai.s property to such amount as it thinks fit, not exceeding the za n an amount of the costs of attachment and of any fine which may of T t be imposed under rule 12. en Wehren m re witness 11. Where, at any time after the attachment of his property, oavppears 5 Gattachment may such person appears and satisfies the court- 2 20 be withdrawn (a) that he did not, without lawful excuse, fail to comply © with the summons or intentionally avoid service; and (b) where he has failed to attend at the time and place named in a proclamation issued under the rule 10, that he had no notice of such proclamation in time to attend, 110 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit. Procedure where 12. The court may, where such person does not appear, or G. witness fails to A appear appears but fails so to satisfy the court, impose upon him, of O such fine not exceeding one thousand shillings as it thinks fi n sti,o having regard to his condition in life and all the circumstanis rm ce e of the case, and may order his property, or any part thert epu of, to be attached and sold or, if already attached under ruliethw o10, to be sold for the purpose of satisfying all costs of sucuhte da ttachment, together with the amount of the said fine if antyribis : Provided that, if the person whose att d oern dance is required pays into court the costs and fine afocreedsaid, the court shall order the property to be released fro u rmod attachment. p re Mode of 13. The provisions with regard e ay bto the attachment and sale of attachment property in the execution okf m a decree shall, so far as they are o applicable, be deemed o st ob apply to any attachment and sale i under this Order as iof f t thh e person whose property is so attached were a judgment dpae rtb tor. o N Court may of 14. Subject tvoed t . he provisions of this Code as to attendance and its own accord er summon as appearanrecse and to any law for the time being in force, where witnesses the couhtsr t at any time thinks it necessary to examine any person strangers to suit g othAlel rri than a party to the suit and not called as a witness by naia . party to the suit, the court may, on its own motion, cause za an such person to be summoned as a witness to give evidence, T t o f or to produce any document in his possession, on a day to be n me appointed, and may examine him as a witness or require him ernv to produce such document. o 25 G 20 Duty of persons 15. Whoever is summoned to appear and give evidence in a © summoned to give evidence suit shall attend at the time and place named in the summons or produce for that purpose and whoever is summoned to produce a document document shall either attend to produce it, or cause it to be produced at such time and place. 111 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Obligation 16.–(1) A person summoned and attending shall, unless the of person summoned to court otherwise directs, attend at each hearing until the suit attend hearing has been disposed of. (2) On the application of either party and the payment through the court of all necessary expenses, if any, the court G. A may require any person so summoned and attending to of O furnish security to attend at the next or any other hearing osrios n until the suit is disposed of and, in default of his furnis i ehrming such security, may order him to be detained as a civil pruti s poner. o ith Application of 17. The provisions of rules 10 to 13 shall, so faterd aws they are rules 10 to 13 applicable, be deemed to apply to any perstroibn u who having attended in compliance with a summonors s d, i departs without lawful excuse, in contravention of rule 1ce6d. u rod Procedure 18. Where any person arrested uren pder a warrant is brought where witness apprehended before the court in custody andy b c eannot, owing to the absence a cannot give of the parties or any of themk ,m give the evidence or produce the evidence or produce document which he has o s b oeen summoned to give or produce, document the court may requirf eth i o him to give reasonable bail or other security for his apppa ret arance at such time and place as it thinks fit and, on such ob . N ail or security being given, may release him, and in defa d ruvelt of his giving such bail or security, may order him to b e re sdetained as a civil prisoner. ts igh No witness to be 19 r A. llA person shall not be ordered to attend in person to give ordered to attend in person unless ne iav. idence unless he resides- a resident withina n z (a) within the local limits of the court’s ordinary certain limitfs T t o original jurisdiction; enm (b) without such limits but at a place less than fifty miles; ernv or o 5 G (c) where there is railway or steamer communication or 20 2 other established public conveyance for five-sixths of © the distance between the place where he resides and the place where the court is situate, less than two hundred miles distance from the court-house. 112 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Consequence of 20. Where any party to a suit present in court refuses, without refusal of party to give evidence lawful excuse, when required by the court, to give evidence when called on by or to produce any document then and there in his possession court or power, the court may pronounce judgment against him or . make such order in relation to the suit as it thinks fit. AG of O Rules as to 21. Where any party to a suit is required to give evidence or tsoio n witnesses to s apply to parties produce a document, the provisions as to witnesses shall aeprmp i ly summoned to him so far as they are applicable. t pu ith o ORDER XVII ted w bu ADJOURNMENTS ist ri r d d o Court may grant 1.–(1) At any stage of the suit the courdut c me ay, if sufficient cause time and adjourn hearing and costs is shown, grant time to the parties eop rro to any of them, and may of adjournment adjourn the hearing of the suit. e rb GNs. Nos. 508 of 1991 (2) Where a suit has bee nm aaydjourned at the request of the 381 of 2019 plaintiff or by consent of b oko th parties, such suit shall be placed last in the list of pendinhigs b t  cases. (3) In every case f rt o under subrule (1), the court shall fix a day for the furtoh pe ar hearing of the suit and may make such order as it thdi.n Nks fit with respect to the costs occasioned by the adjournermv e ent: Provtsi dr eesd that- (ai)g h r when the hearing of the suit has been commenced, ll a. A it shall be continued from day to day until all the ni za witnesses in attendance have been examined, unless n f T a the court finds that there are exceptional reasons to be nt o recorded by the court requiring the adjournment of the me rn hearing beyond the following day; ve Go (b) no adjournment shall be granted at the request of a 5 02 party, or parties except where the circumstances are ©2 beyond the control of the party or parties; (c) the fact that the advocate of a party is engaged in another court, shall not be a ground for adjournment unless that advocate is appearing before a superior court; 113 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (d) where the illness of an advocate or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground for adjournment, the court shall not grant adjournment unless it is satisfied . that the party applying for adjournment could not have OAG engaged another advocate in time; of (e) where a witness is present in court but a party osrio n is his advocate though present in court, is not rea rm pdey to examine the witness, the court may, if it thiunt o ks fit, receive the evidence of he witness and pass swuit h ch orders d as it thinks fit dispensing with the exambinu teation in chief or cross examination of the witness b i diys t rthe party or his advocate not present or not ready aosr d  aforesaid; (f) in the event of an adjournm c duene t at the instance of the court, the reasons fore pt rhoe adjournment shall be recorded and the court bseh rall strive to fix the hearing date within the short me asyt period possible but not more than thirty days. oo k is b th Procedure if 2. Where, on any rtd o fa y to which the hearing of the suit is parties fail to appear on day adjourned, the op pa arties or any of them fail to appear, the fixed court may pro.c Nd eed to dispose of the suit in one of the modes directed inse rt vheat, behalf by Order IX or make such other order as if thisn rt ke s fit. rig h l Court may 3.. AW l here any party to a suit to whom time has been granted proceed nia notwithstanding za fails to produce his evidence, or to cause the attendance of his either party n Ta witnesses, or to perform any other act necessary to the further failing to tp orof duce evidencen, etc. progress of the suit, for which time has been allowed, the court e rnm may, notwithstanding such default, proceed to decide the e ov suit forthwith. G 25 ©20 Procedure where 4. Where the hearing of a suit has been adjourned generally, no application is made on the court shall, if no application is made within twelve months suit adjourned of the last adjournment, dismiss the suit. generally GN. No. 508 of 1991 114 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Suit may be 5. In any case, not otherwise provided for in which no application struck out if no step taken for is made or step taken for a period of two years by either party three years with a view to proceeding with the suit, the court may without GN. No. 381 of 2019 notice order the suit to be struck out for want of prosecution, . and after such an order has been made shall give notice of the OAG order on the court notice board, but in such case the plaintiff f n o may, subject to the law of limitation, bring a fresh suit. io miss r pe ORDER XVIII ut tho HEARING OF SUIT AND EXAMINAT i d IwON e OF WITNESSES5 ibu t r di st r Right to begin 1. The plaintiff has the right to begin eud onless the defendant GN. No. 761 of 2021 admits the facts alleged by the pla c oidn utiff and contends that either in point of law or on some re pardditional facts alleged by the defendant the plaintiff is ny bo et entitled to any part of the relief which he seeks, in whikc mh a case the defendant has the right to begin. bo o is f th Witness 2.–(1) In any suit, o aertvidence in chief shall be given orally or by statement GN. No. a witness statem p Noent. 761 of 2021 (2) For thede . purpose of this Order oral evidence has the Cap. 6 meaning asserc vribed to it by section 3 of the Evidence Act. (3) re hAts  witness statement shall- (la ri)gl be made on oath or affirmation; a. A i (b) contain the name, age, address and occupation of za n n the witness; Ta of (c) so far as reasonably practicable, be in the intended nt e witness’s own words; ern m (d) sufficiently identify any document to which the ov G statement refers without repeating its contents unless it 25 20 is necessary in order to identify the document; © (e) not include matters of information or belief which are not admissible and where admissible, shall state the source of matters of information or belief; 5 The title to the Order was amended by GN. 761 of 2021. 115 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (f) neither contain lengthy quotation from documents or engage in legal or other arguments; (g) include a statement by the intended witness that he believes the statements of fact in it to be true; . (h) be dated and signed or otherwise authenticated by the AG O intended witness; n o f (i) be in numbered paragraphs; and iss io (j) be in the language of the court. pe rm (4) Where the witness is not conversant with the loaun t guage of the court, but can make himself understoodw ith and can understand the written language of the court, utteh de statement need not be in his own words: ib ist r Provided that, these matters are indica toer dd in the statement itself and recorded so as to express as a e ucccudrately as possible the substance of his evidence. pro d (5) The witness statement shalel r ebe substantially in the form made under section 111 of thisy  Cba ode. m ok Filing and 3.–(1) After completion bo is of mediation the plaintiff shall, in not service of witness less than seven days bf ethstatement o fore the time fixed by court for hearing, GN. No. file a statement by rt p aeach witness whom he intends to call at the 761 of 2021 trial, setting ou. Nt othe substance of his evidence. (2) The d d rveefendant shall, within fourteen days of the closure of the pl se areintiff ’s case file a statement by each witness whom he inten ts rig dhs to call in defence. A(l l3) Copies of the witness statements shall be served on the . noiather party not later than five days after being filed. nz a a (4) Each witness statement shall be filed together with f T t o sufficient certified two copies for each magistrate or judge n me where there are more than one trial judge or magistrate, and rn ve all other plaintiffs in the same case and the defendant. Go 5 2 20 Consequence of 4. Where the statement of an intended witness is not served © failure to serve witness statement on the other party within the time prescribed in rule 3(3), the GN. No. statement shall, unless the court extends time for such service, 761 of 2021 be struck out. 116 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Formal 5.–(1) A party on whose behalf a witness statement has been production of statements and filed shall cause the attendance of his witness during the tendering of hearing for the purpose of formal production of his statement, exhibits GN. No. and tendering of exhibits or cross examination, if any. . 761 of 2021 (2) When a witness appears for formal production of AG his statement and tendering of exhibits, he shall be sworn of O in the manner prescribed by the law in force as to swearin n iss gio of witnesses. rm (3) Once the witness statement has been formally pruot pe o duced in court, it shall form part of the record of the trial th waind it shall be read loudly by or on behalf of the witness. ute d (4) The witness whose statement has tribs been formally produced may be cross-examined and re-exr d i o amined. (5) Where a witness fails to appearc efdo r production of his statement, tendering of exhibit or crordo uss examination, if any, the court shall strike out his statem ree epnt from the record, unless it is satisfied that there is gooayd b cause to be recorded by the court for such failure. m ok s b o Statement of case 6.–(1) On the day fixf ethd i for the hearing of the suit or on any and production of evidence other day to whicha rtt ohe hearing is adjourned, the party having GN. No. the right to beg p Nino shall state his case and produce his evidence 761 of 2021 in support orvf . e dthe issues which he is bound to prove. (2) Th e re es other party shall then state his case and produce his evidenctse, if any and may then address the court generally on the w rig h ll hole case. A nia . (3) The party beginning may then reply generally on the za whole case. Tan of Evidenceen tw here 7. Where there are several issues the burden of proving some therne mare several isseures of which lies on the other party, the party beginning may, ov GGN. No. at his option, either produce his evidence on those issues or 25 761 of 2021 0 reserve it by way of answer to the evidence produced by the ©2 other party, and in the latter case, the party beginning may produce evidence and the other party may then reply specially on the evidence so produced by the party beginning, but the party beginning will then be entitled to reply generally on the whole case. 117 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Manner of giving 8. Where the court orders hearing to proceed orally or where evidence GN. No. a witness appears for formal production of his statement, 761 of 2021 and tendering of exhibits or cross examination, the evidence of the witness shall be given orally in open court under the . personal direction and superintendence of a presiding judge AG O or magistrate. of sio n s Any particular 9. The court may, on its own motion or on the applicationm ir of question and pet answer may be any party or his advocate, take down any particular qouuestion taken down and answer or any objection to any question, if th e th wrie appears GN. No. 761 of 2021 to be any special reason for so doing. d ibu te str Manner of taking 10. The evidence of each witness shall be taokr e dni down in writing evidence GN. No. or electronically in the language of the c ce dourt, by or under the 761 of 2021 personal direction and superintendernodc ue of the presiding judge or magistrate, not in the form ofe rq eup estion and answer, but in that of a narrative and the pre b asyiding judge or magistrate shall sign the same. ok m s b o Questions 11. Where any ques thi objected to and otfi on put to a witness is objected to by a allowed by court party or his advocarttp e , and the court allows the same to be put, GN. No. the presiding ju Ndog e or magistrate shall take down the question, 761 of 2021 . the answer,r vteh de objection and the name of the person making it, togethres e r with the decision of the court thereon. htsig Remarks on 12A. ll Thr e court may record such remarks as it thinks material demeanour of wia. witness n ith respect to the demeanour of any witness while a GN. No. nz under examination. 761 of 2021 f T a t o Power teon direct 13.–(1) Notwithstanding anything in the foregoing rules of sho GNer rntmhand record . No. this Order, the presiding judge or magistrate may direct a court ov G761 of 2021 stenographer to make a shorthand record of the whole of, or 5 20 2 any part of, or the substance of, the evidence of any witness or © other proceedings. (2) A shorthand record made under the provisions of subrule (1) shall, as soon as practicable thereafter, be transcribed and word processed by the same or any other court stenographer 118 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] who shall certify the resultant word processed transcript to be correct and complete and thereupon it shall form part of the record. (3) In this rule “court stenographer” means any person appointed by the Chief Justice to be a court stenographer. G. f O A o Power to 14.–(1) Where a witness is about to leave the jurisdiction of n o examine witness i the court or other sufficient cause is shown to the satisfactmiois s immediately r n GN. No. of the court why his evidence should be taken immediatte pl ey the 761 of 2021 u court may, upon the application of any party or of t th whie owitness, at any time after the institution of the suit, take thted evidence of such witness. u str ib (2) Where such evidence is not taken dior forthwith and in the presence of the parties, such noticceed as the court thinks sufficient, of the day fixed for the exroadm u ination, shall be given to the parties. re p e y b Power to deal 15.–(1) Where a judge or km maagistrate is prevented by death, with evidence taken before transfer or other cause fr boom o concluding the trial of a suit, his another judge or successor may deal wi is f thh any evidence or memorandum taken magistrate GN. No. down or made und o aertr the foregoing rules as if such evidence or 761 of 2021 memorandum Nho p a s been taken down or made by him or under . his directiornve dunder the said rules and may proceed with the suit fromre st ehe stage at which his predecessor left it: Provtsi gh ded that, the reasons for taking over are recorded in theA ll priroceedings by the successor judge or magistrate at the tai.m ni e of taking over and communicated to the parties. za an (2) The provisions of subrule (1) shall, so far as they are f T o applicable, be deemed to apply to evidence taken in a suit t en transferred under section 24 of this Code. rnm veoCourt may recall 16. The court may, at any stage of a suit recall any witness who 25 Gand examine 0 witness has been examined and may, subject to the law of evidence, put ©2 GN. No. such questions to him as it thinks fit. 761 of 2021 Power of court to 17. The court may at any stage of a suit inspect any property or inspect GN. No. thing concerning which any question may arise. 761 of 2021 119 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Hearing of 18. Hearing of any matter or proceeding other than a suit, may appeals and applications be conducted- GN. No. (a) orally by parties or their representatives being physically 761 of 2021 present in the courtroom; . (b) by way of written submissions; or G OA GN. No. (c) remotely in accordance with the Judicature and n o f 637 of 2021 Application of Laws (Remote Proceedings ansdiois Electronic Recording) Rules, 2021. erm t p ou Appearance for 19.–(1) Where an application is supported by an a ffi t wi dh avit, the cross examination GN. No. court on its own motion or upon application buyte da party may 761 of 2021 order the deponent to appear for cross-examisntr iabi tion. (2) Where an order has been made un d dorer subrule (1), and the deponent does not appear, his affidua d cveit shall not be used as evidence unless the court is satisfiedp rtoh dat there is good cause to be recorded in the proceedings fo rree his non-appearance. (3) Where the court admits ya nba affidavit of a person who has failed to appear for cross-e m okxamination, lesser weight shall be attached to such affidavist b. o f th i rt o pa ORDER XIX No d. AFFIDAVITS rve se Power to order 1. A cou e s r t may at any time for sufficient reason order that any any point to ht be proved by partiricgular fact or facts may be proved by affidavit, or that the l affidavit affi l . Adavit of any witness may be read at the hearing, on such anc ia z onditions as the court thinks reasonable: Tan Provided that, where it appears to the court that either nt of party bona fide desires the production of a witness for cross- nm e examination, and that such witness can be produced, an order er ov shall not be made authorising the evidence of such witness to G 25 be given by affidavit. ©20 Power to order 2.–(1) Upon an application evidence may be given by affidavit attendance of deponent for but the court may, at the instance of either party order the cross examination attendance for cross examination of the deponent. 120 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) Such attendance shall be in court unless the deponent is exempted from personal appearance in court or the court otherwise directs. Matters to which 3.–(1) Affidavits shall be confined to such facts as the deponent G. affidavits shall be A confined is able of his own knowledge to prove, except on interlocutory of O applications on which statements of his belief may be admittedio ns provided that, the grounds thereof are stated. is rm (2) The costs of every affidavit which unnecessaurti plye set forth matters of hearsay or argumentative matter orit hcoopies of or extracts from documents shall, unless the coudr twte otherwise directs, be paid by the party filing the same. trib u is or d ORDER XX ed uc JUDGMENT ANDpr oD d ECREE e be r Judgment, when 1. The court, after the case h ys a been heard, shall pronounce pronounced m judgment in open court,o oe ki ther at once or on some future day, of which due nohtisi cbe shall be given to the parties or their advocates. f t rt o pa Power to 2. A judge or .mN o agistrate may pronounce a judgment written pronounce ed judgment written but not proenrvounced by his predecessor. by judge’s or res magistrate’s hts predecessor l ri g l A Judgment to be n3iaa .. The judgment shall be written by, or reduced to writing under signed an z T the personal direction and superintendence of the presiding t o f judge or magistrate in the language of the court and shall be en nm dated and signed by such presiding judge or magistrate as of ve r o the date on which it is pronounced in open court and, when 5 G2 once signed, shall not afterwards be altered or added to, save as 20© provided by section 106 or on review. 121 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Judgment in 4. In the Commercial Division of the High Court, a trial judge Commercial Division of High and assessors shall, after the case has been heard, consider in Court chambers the evidence for each side and thereafter the judge GN. No. 140 of 1999 shall pronounce judgment of the Court in open court either at . once or on such future day of which due notice shall be given AG O to the parties or their advocates. of [r. 3A ion miss] er Opinion of 5. In the Commercial Division of the High Court thet pu judge assessors o GN. No. shall, in the judgment, take into account the opiniitw ohn of the 140 of 1999 assessors but shall not be bound by it, provided utthe dat, the judge shall give reasons for disagreeing with such optriibis nion. d d o r [r. 3B] ce Contents of 6. A judgment shall contain a concisero sd utatement of the case, the judgments points for determination, the deci p e sr eion thereon and the reasons for such decision. y ba k mo [r. 4] bo Courts to state its 7. In suits in which i s fs tsh iues have been framed, the court shall decision on each issue state its finding ora rtd oecision, with the reason therefore, upon p each separate isNsou e unless the finding upon any one or more of . the issues isr vseu d fficient for the decision of the suit. se [r. 5] ts re Contents of 8.–(l 1rig h l ) The decree shall agree with the judgment, it shall decree nc A iao. ntain the number of the suit, the names and descriptions of zan the parties and particulars of the claim and shall specify clearly Ta of the relief granted or other determination of the suit. en t (2) The decree shall also state the amount of costs incurred rnme in the suit and by whom or out of what property and in what Gov proportions such costs are to be paid. 25 20 (3) The court may direct that the costs payable to one party © by the other shall be set off against any sum which is admitted or found to be due from the former to the latter. [r. 6] 122 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Date of decree 9. The decree shall bear the date of the day on which the GNs. Nos. 223 of 2010 judgment was pronounced and, when the judge or magistrate 136 of 2011 has satisfied himself that the decree has been drawn up in accordance with the judgment he shall sign the decree. . [r. 7] OAG of Procedure 10. Where a judge or magistrate has vacated office aftesrio n where judge or magistrate has pronouncing judgment but without signing the decre s erem, i a vacated office decree drawn up in accordance with such judgment p umt ay be before signing o decree signed either by his successor, a registrar, a deputy r t wei g h istrar or GN. No. a district registrar. ted 223 of 2010 u str ib i [r. 8] d or Decree for 11. Where the subject matter of the suit ciesd i mmovable property, recovery of immovable the decree shall contain a descrriopdt uion of such property property sufficient to identify the same, aned r ewp here such property can be Cap. 334 identified by a title number u b anyder the Land Registration Act, the decree shall specify sucohk mtitle number. o is b [r. 9] of th Decree for 12. Where the suita rti s for movable property, and the decree is delivery of p movable property for the delivery o N f such property, the decree shall also state the . amount of mrveo dney to be paid as an alternative if delivery cannot be had. e s r es t gh [r. 10] i All r Decree may . n1ia3.–(1) Where and in so far as a decree is for the payment of direct payment bya installments nz money, the court may, for any sufficient reason, at the time of Ta t o f passing the decree order that payment of the amount decreed n shall be postponed or shall be made by installment, with or rnm e ve without interest, notwithstanding anything contained in the o G contract under which the money is payable. 5 20 2 (2) After the passing of any such decree the court may, on © the application of the judgment debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the 123 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] property of the judgment debtor, of the taking of security from him, or otherwise, as it thinks fit. [r. 11] Decree for 14.–(1) Where a suit is for the recovery of possession of . possession and OAG mesne profits immovable property and for rent or mesne profits, the court f GN. No. may pass a decree- ion o 376 of 1968 s (a) for the possession of the property or declaringrm iasn e entitlement as against the Government to posust e pssion of the property; o with (b) for the rent or mesne profits which havte du a ccrued on the property during a period prior itsotr i bthe institution of the suit or directing an inquir yo r ads to such rent or mesne profits; ce d u (c) directing an inquiry as to renprto o d r mesne profits from the institution of the suit until -re (i) the delivery of posys b e a ession to the decree-holder; (ii) the relinquishmok e mnt of possession by the judgment debtor with o is bnotice to the decree-holder through the cour t otf; hor (iii) the e rt xpapiration of three years from the date of the de. cNr oee, whichever event first occurs. (2) Wherrvee d an inquiry is directed under paragraph (b) or paragrap reh s e(c), a final decree in respect of the rent or mesne profit ts igsh shall be passed in accordance with the result of suAclhl r inquiry. nia . [r. 12] za an Decree in T of 15.–(1) Where a suit is for an account of any property and for administnrtation suit e its due administration under the decree of the court, the court rnm ve shall, before passing the final decree, pass a preliminary decree o 5 G ordering such accounts and inquiries to be taken and made, 022 and giving such other directions as it thinks fit. © (2) In the administration by the court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and 124 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being within the local limits of the courts in which the administration suit is pending with respect to the estates of persons adjudged G. A or declared insolvent, and all person, who in any such case of O would be entitled to be paid out of such property may comseio n in under the preliminary decree and make such claims agarmin isst the same as they may respectively be entitled to by viurt t pue e of this Code. o with ted [r. 13] u trib Decree in pre- 16.–(1) Where the court decrees a claim tdoisr pre-emption in emption suit respect of a particular sale of property an d oe the purchase money c has not been paid into court, the decrdeuro e shall- (a) specify a day on or before rewp hich the purchase money shall be so paid; and be ay (b) direct that on paymk ment into court of such purchase o money, togethers w b oith the costs, if any, decreed against i the plaintiff,o f o thn or before the day referred to in paragraphp (aa rt ), the defendant shall deliver possession of the propNeo . rty to the plaintiff, whose title thereto shall be deem d rve d to have accrued from the date of such payment, b rue ste that, if the purchase money and the costs, if any, are htsig not so paid, the suit shall be dismissed with costs. (ll2 r A ) Where the court has adjudicated upon rival claims to anp iar. e-emption, the decree shall direct- an z (a) where and in so far as the claims decreed are equal in of T t degree, that the claim of each pre-emptor complying men with the provisions of subrule (1) shall take effect rn ov e in respect of a proportionate share of the property G 25 including any proportionate share in respect of which 0 ©2 the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and 125 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) where and so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions. . [r. 14] AG of O Decree in suit 17. Where a suit is for the dissolution of a partnership, osrio n for dissolution of partnership the taking of partnership accounts, the court, before paesrsmin isg a final decree, may pass a preliminary decree declaruitn pg the o proportionate shares of the parties, fixing the day onw iwt h hich the partnership shall stand dissolved or be deemed tetdo have been dissolved and directing such accounts to be triab u is ken and other acts to be done as it thinks fit. d or ce d u [r. 15] rod Decree in suit for 18. In a suit for an account of pec uree np iary transactions between account between principal and a principal and an agent and inay a bny other suit not hereinbefore agent provided for where it is nekc mo essary, in order to ascertain the amount of money due to bois or from any party, that an account should be taken, the ocf othurt shall, before passing its final decree, pass a preliminar ya rdtp ecree directing such accounts to be taken as it thinks fit.. N o ed [r. 16] se rv re Special directions 19. Thhets g court may, either by the decree directing an account as to accounts i to Abll er taken or by any subsequent order, give special directions nwia .ith regard to the mode in which the account is to be taken a an z or vouched and in particular may direct that in taking the f T t o account the books of account, in which the accounts in n me question have been kept, shall be taken as prima facie evidence ern ov of the truth of the matters therein contained with liberty to the 5 G parties interested to take such objection thereto as they may 2 ©20 be advised. [r. 17] 126 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Decree in suit 20. Where the court passes a decree for the partition of property for partition of property or for the separate possession of a share therein the court may, or separate if the partition or separation cannot be conveniently made possession of share therein without further inquiry, pass a preliminary decree declaring . the rights of the several parties interested in the property and OAG giving such further directions as may be required. n o f [r. 1is8s] io erm Decree when 21.–(1) Where the defendant has been allowed a set-offu at g painst set-off allowed o and appeal from a claim of the plaintiff, the decree shall state what aithw mount is decree relating to due to the plaintiff and what amount is due to thteed defendant, set-off u and shall be for the recovery of any sum wh rib iisct h appears to be due to either party. or d (2) Any decree passed in a suit in whiecduc h a set-off is claimed shall be subject to the same provisiporon ds in respect of appeal to which it would have been subject eif r eno set-off had been claimed. (3) The provisions of this rauy l be shall apply whether the set- off is admissible under ruleo k6 m of Order VIII or otherwise. o his b [r.19] of t Certified copies 22. Certified cop paie rts of the judgment and decree shall be of judgment and decree to be furnished to t o .h Ne parties on application to the court and at furnished their expenrsve. d e re s [r. 20] htsig All r Interest . nia Interest on a nz 23.–(1) The rate of interest on every judgment debt from the judgment de bTta of s date of delivery of the judgment until satisfaction shall be seven en t per centum per annum or such other rate, not exceeding twelve ern m v per centum per annum, as the parties may expressly agree in Go writing before or after the delivery of the judgment or as may 5 20 2 be adjudged by consent: © Provided that, in the case of a judgment debt subsisting on the first day of July, 1964, the provision of this rule shall apply thereto as if there were substituted for the words “delivery of judgment” the words “on the first day of July, 1964”. 127 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) For the purposes of this rule- “judgment” in suits relating to mortgages of immovable property means the final decree; and “judgment debt” means- . (a) the principal sum; AG O (b) any interest adjudged on such principal sum for any n o f period prior to the institution of the suit; and siois (c) any interest adjudged on such principal sum fopre r mthe period between the institution of the suit oaun t d the delivery of the judgment. ith d w bu te [r. 21] ri ist ORDER XXI or d ed EXECUTION OF DECREES uAcod ND ORDERS r re p Payment uny bd eer Decree a Modes of paying 1.–(1) All money payabloek munder a decree shall be paid money under as follows: is bo decree (a) into the court th o fw hose duty is to execute the decree; t (b) out of cou prat r to the decree-holder; or (c) otherw.i N o d se as the court which made the decree directs. (2) Whervree e any payment is made under paragraph (a) of subru s rlee (1), notice of such payment shall be given to the decre ts igeh-holder. ll r A Payment out of n2ia. .–(1) Where any money payable under a decree of any kind is court to decree- za holder an paid out of court or the decree is otherwise adjusted in whole T t o f or in part to the satisfaction of the decree-holder, the decree- enm holder shall certify such payment or adjustment to the court ernv whose duty is to execute the decree and the court shall record o 5 G the same accordingly. 02 ©2 (2) The judgment debtor also may inform the court of such payment or adjustment and apply to the court to issue a notice to the decree-holder to show cause, on a day to be fixed by the court, why such payment or adjustment should not be recorded as certified, and if, after service of such notice, 128 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly. (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any court . AG executing the decree. of O ion s Satisfaction of 3. Where a decree contains any order in favour of any persoism n orders against r Government against the Government or against an officer of the Govertn pu me ent GN. No. as such, the provisions of section 17 of the Goivtheornment 376 of 1968 Cap. 5 Proceedings Act, shall apply in relation to satisfteadc wtion of the order, in lieu of the provisions of rules 3 to 103ib.ustr or di [r. 2A] ce d Courts Executing Ddeuro crees p re Lands situate in 4. Where immovable propertyy b eforms one estate or tenure more than one jurisdiction situate within local limits o a k fm the jurisdiction of two or more courts, any one of such oo s cbourts may attach and sell the entire estate or tenure. f th i rt o [r. 3] o p a N Mode of transfer 5. The courvte do . f a resident magistrate may send a decree for execution r es edirectly to any other court, other than the High Courth, tsw r ithin the local limits of its jurisdiction, in any other casell ,r i ga decree to be executed outside the local limits of the . njiaurAisdiction of the court which passed it shall be sent to the za an court of the resident magistrate within the local limits of whose f T o jurisdiction the decree is to be executed. en t [r. 4] m ve rn o GProcedure where 6. The court sending a decree for execution shall send- 25 court desires that 0 its own decree (a) a copy of the decree; ©2 shall be executed (b) a certificate setting forth that satisfaction of the by another court decree has not been obtained by execution within the jurisdiction of the court by which it was passed or, where the decree has been executed in part, the extent 129 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] to which satisfaction has been obtained and what part of the decree remains unsatisfied; and (c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect. . [r. 5] OAG of Court receiving 7. The court to which a decree is so sent shall cause such copiessio n copies of decree, etc., to file same and certificates to be filed, without any further proof of tihserm e without proof decree or order for execution, or of the copies thereofu, t u pnless o the court, for any special reasons to be recorded wuithnder the hand of the judge or magistrate, requires such p d urtoeof. rib ist [r. 6] or d Execution of 8. Where such copies are so filed, the dec cerdee or order may, if the decree or order by court to which court to which it is sent is the court o u rofd a resident magistrate, be it is sent executed by such court or be tran rse p e ferred for execution to any subordinate court of competenayt   bjurisdiction. k m [r. 7] bo o Execution by 9. Where the court tof twh ishich the decree is sent for execution is High Court of the High Court, thert odecree transferred a decree shall be executed by such Court in p by other court the same mann o Ner as if it had been passed by such Court in the . exercise of irtvse d ordinary original civil jurisdiction. se [r. 8] ts re rig h All Application for Execution a. ni Application for a nz 10. When the holder of a decree desires to execute it, he shall execution Ta of apply to the court which passed the decree or to the officer, nt e if any, appointed in this behalf, or if the decree has been sent rnme under the provisions herein before contained to another court ov G then to such court or to the proper officer thereof. 5 20 2 [r. 9] © Oral and written 11.–(1) Where a decree is for the payment of money the court applications GN. No. may, on the oral application of the decree-holder at the time of 79 of 1970 the passing of the decree, order immediate execution thereof 130 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] by the arrest of the judgment debtor, prior to the preparation of a warrant if he is within the precincts of the court. Cap. 29 (2) Where an order has been made for payment of money under the Law of Marriage Act, the court may, on an oral application of the person in whose favour such order is AG. made, order the enforcement of the order by the arrest of O of the judgment debtor or by the attachment of the judgmenstio n debtor’s salary. is erm (3) Save as otherwise provided by subrule (1) or ustu pbrule (2), every application for the execution of a decree t w sih hoall be in writing, signed and verified by the applicant or bteyd some other person proved to the satisfaction of the court ttroib ube acquainted with the facts of the case, and shall contain d isor in a tabular form the following particulars: d ce (a) the number of the suit; rod u (b) the names of the parties; e r ep (c) the date of the decree; ay b (d) whether any appealo hk a ms been preferred from the decree; (e) whether any, ains db o, if any, what, payment or other adjustment o th rt fo fthe matter in controversy has been made between t hpae parties subsequently to the decree; (f) whethe. rN oany, and, if any, what, previous applications hav ed eerv been made for the execution of the decree, the d s raetes of such applications and their results; s (g ht ri)g the amount with interest, if any, due upon the decree or All . other relief granted thereby, together with particulars ia an of any cross-decree, whether passed before or after the an z T date of the decree sought to be executed; t o f n (h) the amount costs, if any, awarded; me rn (i) the name of the person against whom execution of the veo decree is sought; and 25 G (j) the mode in which the assistance of the court is ©20 required, whether- (i) by the delivery of any property specifically decreed; (ii) by the attachment and sale, or by sale without attachment, of any property; 131 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; or (v) otherwise, as the nature of the relief granted may require. (4) The court to which an application is made under sub- AG. rule (2) may require the applicant to produce a certified copy f O o of the decree. sio n [r.r m1 is0] t p e u Application 12. Where an application is made for the attachmeitnhot of any for attachment of movable movable property belonging to a judgment debtteodr w but not in property not in his possession, the decree-holder shall annex torib t uhe application judgment debtor’s t possession an inventory of the property to be attachdisr ed, containing a o reasonably accurate description of the scaemd e. u rod [r. 11] re p Application 13.–(1) Where an application yi bs e made for the attachment of for attachment m of immovable any immovable property bke lo anging to a judgment debtor, it property to shall contain at the foot- o bo contain certain particulars (a) a description otfh if ssuch property sufficient to identify the same and, irnt oCap. 334 a case such property can be identified by p a title n o Number under the Land Registration Act, such . title neudrv mber; and (b) a e r es pecification of the judgment debtor’s share or ts gh interest in such property to the best of the belief of the i All r applicant, and so far as he has been able to ascertain ia.n the same. za an (2) Where an application is made for the attachment of f T t o any land of which an estate has been registered under the Cap. 3m3e4n Land Registration Act, the court may require the applicant to ernv produce an official search issued under section 97(2) of that o 5 G Act relating to that land. 2 20 [r. 12] © Application for 14.–(1) Where a decree has been passed jointly in favour of execution by joint decree-holder more than one persons, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply 132 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] for the execution of the whole decree for the benefit of them all or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it G. A shall make such order as it deems necessary for protecting the O of interests of the persons who have not joined in the applicatiosnsi. on [re.r m1 i3] ut p Application for 15. Where a decree or, if a decree has been passed itjhoointly in execution by transferee of favour of two or more persons, the interest of w te dany decree- decree holder in the decree, is transferred by assign ibu stmr ent in writing or by operation of law, the transferee mayo ar dpiply for execution of the decree to the court which pas d cse d it, and the decree may be executed in the same manne u rord and subject to the same conditions as if the application ew r eepre made by such decree- holder: y ba Provided that, where the m o kdecree or such interest as aforesaid has been transferred by sa bi sosignment, notice of such application shall be given to the o tf rthansferor and the judgment debtor, and the decree shall n rt opat be executed until the court has heard their objections, if a.n o Ny, to its execution: Providedrv ef durther that, where a decree for the payment of money a se rge ainst two or more persons has been transferred to one o ts gfh them, it shall not be executed against the others. ll r i A [r. 14] nia . Procedure a nz 16.–(1) On receiving an application for the execution of on receiving Ta application o ffor a decree as provided by rule 11, subrule (3), the court shall executieon t n of ascertain whether such of the requirements or rules 11 to 13 decrrneme ve as may be applicable to the case have been complied with, and, G o if they have not been complied with, the court may reject the 25 20 application, or may allow the defect to be remedied then and © there or within a time to be fixed by it. (2) Where an application is amended under the provisions of subrule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. 133 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) Every amendment made under this rule shall be signed or initialed by the judge or magistrate. (4) Where the application is admitted, the court shall enter in the proper register a note of the application and the date on which it was made and shall, subject to the provisions . AG hereinafter contained, order execution of the decree according of O to the nature of the application: ions Provided that, in the case of a decree for the paymenrmt isof money, the value of the property attached shall, as ne e uta prly as may be, correspond with the amount due under the idtheocree. ted w [r. 15] ibutr Execution in case 17.–(1) Where applications are made tod isr a court for the of cross-decrees execution of cross-decrees in separate esdu oits for the payment c of two sums of money passed betwredeuo n the same parties and capable of execution at the same tirmep e by such court, then- (a) if the two sums are equa bleay , satisfaction shall be entered upon both decrees; ak nmd o (b) if the two sums sa br oe unequal, execution may be taken i out only by thofe th holder of the decree for the larger sum and for so mrt pa uch only as remains after deducting the smaller o . Nsum, and satisfaction for the smaller sum shall be e d rnvetered on the decree for the larger sum as well as s aret siesfaction on the decree for the smaller sum. (2i)g hTh ts is rule shall be deemed to apply where either party is Aaln l r assignee of one of the decrees and as well in respect of . njiaudgment debts due by the original assignor as in respect of nz a a judgment debts due by the assignee himself. of T t (3) This rule shall not be deemed to apply unless- enm (a) the decree-holder in one of the suits in which the ernv decrees have been made is the judgment debtor in the 5 G o other and each party fills the same character in both 20 2 © suit; and (b) the sums due under the decrees are definite. 134 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (4) The holder of a decree passed against several persons jointly and severally may treat it as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons. [r. 16] G. A of O Execution in case 18. Where application is made to a court for the execution of aio n of cross-claims s under same decree under which two parties are entitled to recover sumrms isof decree money from each other, then- peut (a) where the two sums are equal, satisfactiowni thfoor both shall be entered upon the decree; and ted (b) where the two sums are unequal, exteribs cuution may be taken out only by the party entitled i or d to the larger sum and for so much only as remainedc s after deducting the smaller sum, and satisfactionro fdo ur the smaller sum shall p be entered upon the decree er e. y ba [r. 17] k mo Cross-decrees 19. The provisions contsa ibn oed in rules 17 and 18 shall apply to and cross-claims i in mortgage suits decrees for sale in enoffo thrcement of a mortgage or charge. rt pa [r. 18] o d. N Continuous order 20. Where aveny order is made for periodic payments to any for attachment in certain cases person underes er the provisions of the Law of Marriage Act or any r GN. No. writtenhts law replacing that Act, it shall be lawful for the court 79 of 1970 Cap. 29 to Aw rhigll ich an application is made for the enforcement of such . noiarder by attachment of the salary of the person against whom za an such order is made to direct that the order for the attachment of T t of the salary shall continue in force and apply to any future men salary or salaries of such person until such time as- rn ve (a) the court giving such direction revokes the same; or 5 G o (b) the order for periodic payments is set aside or ceases to 022 have effect for any reason whatsoever. © [r. 18A] 135 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Simultaneous 21. The court may, in its discretion, refuse execution at the same execution time against the person and property of the judgment debtor. [r. 19] Notice before Execution G. f O A o Notice to show 22.–(1) Where an application for execution is made- ion cause against s execution in (a) more than one year after the date of the decree; or s erm i certain cases (b) against the legal representative of a party to the dt pu ecree, the court executing the decree shall issue a notwiict heo to the person against whom execution is applied for r teqd uiring him to show cause on a date to be fixed why the decibrustr ee should not be executed against him: or di Provided that, no such notice schad e ll be necessary in consequence of more than one yearro dh uaving elapsed between the date of the decree and the apprelip cation for execution if the application is made within onaey byeear from the date of the last order against the party agka minst whom execution is applied for, made on any prevsi ob ouos application for execution, or in consequence of the ap i f thplication being made against the legal representative of o atrht e judgment debtor, if upon a previous application for Neox pecution against the same person the court has ordered d. veexecution to issue against him. (2) Sub r esreule (1) shall not be deemed to preclude the court from histss ruing any process in execution of a decree without issu g lli rni g the notice thereby prescribed if, for reasons to be r A iae.corded, it considers that the issue of such notice would cause an nz unreasonable delay or would defeat the ends of justice. of Ta [r. 20] t en Prorcnemdure after 23.–(1) Where the person to whom notice is issued under rule oisvs eue of notice G 22 does not appear or does not show cause to the satisfaction 5 02 of the court why the decree should not be executed, the court ©2 shall order the decree to be executed. (2) Where such person offers any objection to the execution of the decree, the court shall consider such objection and make such order as it thinks fit. [r. 21] 136 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Process for Execution Process for 24.–(1) Where the preliminary measures, if any, required by execution the foregoing rules have been taken, the court shall, unless it sees cause to the contrary, issue its process for the execution of G. the decree. f O A o (2) Every such process shall bear the date of the day o n snio which it is issued and shall be signed by the judge or magistraiste or such officer as the court may appoint in this behalf and p e rm ut shall be sealed with the seal of the court and delivered to t o ihthe proper officer to be executed. d wte (3) In every such process a day shall be rsibp uecified on or before which it shall be executed. di st r ed o c [r. 22] u od Endorsement on 25.–(1) The officer entrusted with pr rtehe execution of the process process shall endorse thereon the day oy nb e, and the manner in which it was executed, and, if the latke msta day specified in the process for the return thereof has bee bno oexceeded, the reason of the delay, or, if it was not executed,f thh ise reason why it was not executed, and shall return the proarct oess with such endorsement to the court. (2) Where thNeo pendorsement is to the effect that such officer is unable to d. vexecute the process, the court shall examine him touching hsere is alleged inability, and may, if it thinks fit, summon and exhtas mr ine witnesses as to such inability, and shall record the llr rei gsult. ia. A n [r. 23] nz a a of T Stay of Execution en t Whennm court may 26.–(1) The court to which a decree has been sent for execution stvaey r execution oand power to shall, upon sufficient cause being shown, stay the execution 5 G2 require security of such decree for a reasonable time, to enable the judgment 0 from or impose ©2 conditions upon debtor to apply to the court by which the decree was passed judgment debtor or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution or for any other order relating to the decree or execution which might have been made by such court of first instance 137 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] or appellate court if execution had been issued thereby, or if application for execution had been made thereto. (2) Where the property or person of the judgment debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the AG. discharge of such person pending the result of the application. f O o (3) Before making an order to stay execution or for th n seio restitution of property or the discharge of the judgm is erment debtor, the court may require such security from, or uitm p pose such conditions upon the judgment debtor as it thinkthsowi  fit. ted [r. 24] ibu Liability of 27. An order of restitution or discharge un tr di sder rule 26 shall judgment debtor discharged not prevent the property or person of a jud do rgment debtor from e being retaken in execution of the decrdeu ce sent for execution. ro re p [r. 25] Order of court 28. Any order of the court by wy b e a hich the decree was passed, or which passed decree or of of such court of appeal as afook r mesaid, in relation to the execution o appellate court to of such decree, shall beis bbinding upon the court to which the be binding upon h court applied to decree was sent for eoxf t art ecution. p [r. 26] o N Stay of execution 29. Where a d. ve suit is pending in any court against the holder pending suit er between decree- of a decreese of such court, on the part of the person against r holder and whomh tsh e decree was passed the court may, on such terms as judgment debtor to Aslle ricgurity or otherwise as it thinks fit, stay execution of the diae. n cree until the pending suit has been decided. za an [r. 27] f T nt o e Mode of Execution ern m ov GDecree for 30. Every decree for the payment of money, including a decree 25 payment of 20 money for the payment of money as the alternative to some other © relief, may be executed by the detention as a civil prisoner of the judgment debtor or by the attachment and sale of his property, or by both. [r. 28] 138 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Decree for 31.–(1) Where the decree is for any specific movable, or for any specific movable property share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such . person as he appoints to receive delivery on his behalf, or by AG O the detention as a civil prisoner of the judgment debtor or by of n the attachment of his property, or by both. siois (2) Where any attachment under subrule (1) has remaeirnmed in force for six months, if the judgment debtor has noto uo t bp eyed the decree and the decree-holder has applied to ith w have the attached property sold, such property may be suoteld d and out of the proceeds the court may award to the decre r iset- ibholder, in cases where any amount has been fixed by the de ocr rdee to be paid as an alternative to delivery of movable propuecre dty, such amount, and, in other cases, such compensation apsro i dt thinks fit, and shall pay the balance, if any, to the judgmeen rt e debtor on his application. (3) Where the judgment ady e bbtor has obeyed the decree and paid all costs of execuokt ming the same which he is bound to pay, or where, at thes bi eond of six months from the date of the attachment, no a th opf plication to have the property sold has been made, or i fp a rmt ade, has been refused, the attachment shall cease. o . N rve d [r. 29] sere Decree for 32.–(1h)ts W here the party against whom a decree for the specific specific rig performance, perlfl A ormance of a contract, or, subject to rule 33, for restitution for restitution of noiaf . conjugal rights, or for an injunction, has been passed, has had conjugal rights, ozra for injunction an an opportunity of obeying the decree and has willfully failed to T t o f obey it, the decree may, save as otherwise provided by any law men for the time being in force, be enforced by his detention as a ve rn civil prisoner, or by the attachment of his property or by both. Go 5 (2) Where the party against whom a decree for specific 2 20 performance or for an injunction has been passed is a © corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the court, by the detention as civil prisoners of the directors or other principal officers thereof, or by both attachment and detention. 139 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) Where any attachment under subrule (1) or subrule (2) has remained in force for one year, if the judgment debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds, the court may award to the decree- G. A holder such compensation as it thinks fit, and shall pay the O of balance, if any, to the judgment debtor on his application. sio n (4) Where the judgment debtor has obeyed the decree amnisr d paid all costs of executing the same which he is bound to p paeut y, or where, at the end of one year from the date of the attitahochment, no application to have the property sold has beetend mw ade, or if made has been refused, the attachment shall cte u ribase. (5) Where a decree for the specific r pd iesrformance of a contract or for an injunction has not bceede on obeyed, the court may, in lieu of or in addition to al u pr lo dor any of the processes aforesaid, direct that the act requi rreed to be done may be done so far as practicable by the decrye be e-holder or some other person appointed by the court, at k tmh ae cost of the judgment debtor, and upon the act being dooo b ne, the expenses incurred may be ascertained in such mf tah ins ner as the court may direct and may be recovered as if tahrt eoy were included in the decree. No p [r. 30] d. e Execution of 33.–(1) A sdere vcree for the restitution of conjugal rights shall not decrees for restitution of be enf re hotsrced by detention as a civil prisoner. conjugal rights ( ig ll2 r) Where the decree holder is the wife, the court may, save aias. Amay otherwise be provided in any law for the time being in n nz a force, enforce the decree by making an order that in the event of f T a the decree not being obeyed within such period as may be fixed t o en in this behalf, the judgment debtor shall make to the decree- rnm holder such periodical payments as may be just, and, if it thinks ve Go fit, require that the judgment debtor shall, to its satisfaction, 5 02 secure to the decree-holder such periodical payments. ©2 (3) The court may vary or modify any order made under subrule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the 140 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] whole or any part of the money so ordered to be paid, and again revive the same, either wholly or in part as it may think just. (4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money. G. A [r. 31] f O o sio n Decree for 34.–(1) Where a decree is for the execution of a docummeisr nt execution of document or or for the endorsement of a negotiable instrument a p unt d e the endorsement judgment debtor neglects or refuses to obey thiteh o decree, of negotiable d w instrument the decree-holder may prepare a draft of the tdeocument or endorsement in accordance with the terms of u str ibthe decree and deliver the same to the court. r d i o (2) The court shall thereupon cause d c ethe draft to be served on the judgment debtor together wriotdh u a notice requiring his objections, if any, to be made witrehp in such time as the court fixes in this behalf. be ay (3) Where the judgmenkt m debtor objects to the draft, his objections shall be statesd b oino writing within such time, and the court shall make suchf toh irder approving or altering the draft, as it may think fit. art o (4) The decr eNeo -pholder shall deliver to the court a copy of the draft with sucehd . v alterations, if any, as the court may have directed and the ju r esdege or magistrate or such officer as may be appointed in this tbs h er half shall execute the document so delivered. ( g ll5 ri) The execution of a document or the endorsement no A iaf. a negotiable instrument under this rule may be in the nz a following form: Ta “C.D., judge/magistrate of the Court of................. (or the nt of e case may be), for A.B., in a suit by E.F. against A.B.” ern m and shall have the same effect as the execution of the document ov G or the endorsement of the negotiable instrument by the party 02 5 2 ordered to execute or endorse the same. © (6) The document or negotiable instrument so executed or endorsed shall thereupon be delivered to the decree-holder. [r. 32] 141 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Decree for 35.–(1) Where a decree is for the delivery of any immovable delivery of immovable property, possession thereof shall be delivered to the party property to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf and, if necessary, . by removing any person bound by the decree who refuses to AG O vacate the property. n o f (2) Where a decree is for the joint possession of immovabislse io property, such possession shall be delivered by affixing a ecrmopy of the warrant in some conspicuous place on the propoeur t tpy and proclaiming the substance of the decree by such m th weians as are used locally to make public pronouncements. ute d (3) Where possession of any building o ib isrt r enclosure is to be delivered and the person in possessionr d o , being bound by the decree, does not afford free access,c etdhe court, through its officers, may after giving reasonable wdauro rning and facility to any woman not appearing in public a ree cpcording to her religion or local custom to withdraw, remayo bve or open any lock or bolt or break open any door or doo ak n my other act necessary for putting the decree-holder in poss sbi eossion. th of [r. 33] art Decree for 36. Where a d Neo cpree is for the delivery of any immovable delivery of immovable property inr vteh de. occupancy of a tenant or other person entitled property when to occuprys tee he same and not bound by the decree to relinquish in occupancy of tenant such ts gohccupancy, the court shall order delivery to be made by affi ri Axll ing a copy of the warrant in some conspicuous place on ntiah . e property and proclaiming to the occupant the substance za an of the decree by such means as are used locally to make T t o f public pronouncements. en [r. 34] ern m ov 5 G Arrest and Detention in Prison 02 ©2 Discretionary 37.–(1) Notwithstanding anything in these Rules, where an power to permit judgment debtor application is for the execution of a decree for the payment to show cause of money by the arrest and detention as a civil prisoner of a against detention in prison judgment debtor who is liable to be arrested in pursuance of 142 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the application, the court may, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to prison. (2) Where appearance is not made in obedience to the AG. notice, the court shall, if the decree-holder so requires, issue a of O warrant for the arrest of the judgment debtor. n iss io [re.r m35] p ut Warrant for 38. Every warrant for the arrest of a judgment debtor s o ihthall direct arrest to direct w judgment debtor the officer entrusted with its execution to bring h tiemd before the u to be brought up court with all convenient speed, unless the asmtr ibount which he has been ordered to pay, together with the oinr dtierest thereon and the costs, if any, to which he is liable, bec esdooner paid. u rod [r. 36] p re Request for arrest 39.–(1) A court which has issauye bde a warrant for the arrest of a by telegram judgment debtor may, by tek lmegram, request any district court o within the area of whosse b ojurisdiction the judgment debtor is i believed to be, to arroef s tht him and cause him to be taken under escort to the courpt w rt a hich issued the warrant. (2) A  teleg o .r Nam sent under the provisions of subrule (1) shall state- rve d (a) t se hree number and title of the case; (bi)g h tsthe full name of the judgment debtor and the place ll r A where he is believed to be; ia. an (c) the amount of money upon payment of which the an z judgment debtor may be released; of T t (d) that the person applying for arrest has given security for enm the expenses and the transport of the judgment debtor rn ov e and his escort to the court which issued the warrant; 25 G and ©20 (e) the date when the warrant of arrest was issued. (3) On receipt of a telegram sent in accordance with the provisions of this rule, the court to which it is addressed shall issue a provisional warrant in accordance with the particulars 143 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] contained in the telegram and shall cause the same to be executed. [r. 37] Subsistence 40.–(1) A judgment debtor shall not be arrested in execution . allowance AG of a decree unless and until the decree-holder pays into court of O such sum as the judge or magistrate thinks sufficient for th n seio subsistence of the judgment debtor from the time of his arrmreisst e until he can be brought before the court. ut p (2) Where a judgment debtor is committed tow itp horison in execution of a decree, the court shall fix for hi tsed subsistence such monthly allowance as he may be entitledtr ibto u according to the scales fixed under section 51 or, whereo n doisr such scales have been fixed, as it considers sufficient witche dr eference to the class to which he belongs. u rod (3) The monthly allowance fi rex ped by the court shall be supplied by the party on w be ahyose application the judgment debtor has been arrested bk ym monthly payments in advance before the first day of eac bho  omonth. (4) The first paymehnisf t t shall be made to the proper officer of the court for sucrht oa portion of the current month as remains unexpired befo p Nroe the judgment debtor is committed to civil prison, and thd.ve e subsequent payments, if any, shall be made to the officer eires n charge of the prison. (5) Stsu rh ms disbursed by the decree-holder for the subsistence of tlhl rie g judgment debtor in prison shall be deemed to be costs i A ian. the suit: n nz a Provided that, the judgment debtor shall not be detained in a of T prison or arrested on account of any sum so disbursed. t en [r. 38] ern m GoPvroceedings on 41.–(1) Where a judgment debtor appears before the court 25 appearance of 0 judgment debtor in obedience to a notice issued under rule 37, or is brought ©2 in obedience to before the court after being arrested in execution of a decree notice or after arrest for the payment of money and it appears to the court that the judgment debtor is unable from poverty or other sufficient 144 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] cause to pay the amount of the decree or, if that amount is a payable by installment, the amount of any installment thereof, the court may, upon such terms, if any, as it thinks fit, make an order disallowing the application for his arrest and detention, . or directing his release. AG (2) Before making an order under subrule (1), the court of O n may take into consideration any allegation of the decreises- io holder touching any of the following matters: erm (a) the decree being for a sum for which the juodu tg pment debtor was bound in any fiduciary capacity twoi th account; (b) the transfer, concealment or removal byu teh de judgment debtor of any part of his property aftiestrr i bthe date of the institution of the suit in which theo rd d ecree was passed, or the commission by him afte ed urc that date of any other act of bad faith in relation d p rtoo his property, with the object or effect of obstru bec treing or delaying the decree- holder in the executio y k m na of the decree; (c) any undue preferenooce given by the judgment debtor to any of his other b th icsreditors; (d) refusal or nret go fl ect on the part of the judgment debtor to pay thoe p aamount of the decree or some part thereof when hd. e eN has, or since the date of the decree has had, the meearvs ns of paying it; (e) e tst hr e likelihood of the judgment debtor absconding or igh ll r leaving the jurisdiction of the court with the object or A ia. effect of obstructing or delaying the decree-holder in an nz the execution of the decree. f T a (3) While any of the matters mentioned in subrule (2) are t o en being considered, the court may, in its discretion, order the rnm judgment debtor to be detained as a civil prisoner or leave e Gov him in the custody of an officer of the court, or release him on 5 02 his furnishing security, to the satisfaction of the court, for his ©2 appearance when required by the court. (4) A judgment debtor released under this rule may be re- arrested. 145 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (5) Where the court does not make an order under subrule (1), it shall cause the judgment debtor to be arrested if he has not already been arrested and, subject to the other provisions of this Code, commit him to prison. [r. 39] G. A Attachment of Property of O sio n Examination of 42. Where a decree is for the payment of money the decr s meie- judgment debtor r as to his property holder may apply to the court for an order that- t p e u (a) the judgment debtor; o ith (b) in the case of a corporation, any officer th w teedreof; or (c) any other person, ibutr be orally examined as to whether any or whr do aist debts are owing to the judgment debtor and whetherc etdh e judgment debtor has any and what other property orro dm u eans of satisfying the decree, and the court may make raenp order for the attendance and examination of such judgamy beent debtor, or officer or other person, and for the productki mon of any books or documents. oob [r. 40] thi s f Attachment in 43. Where a decreea rdt oirects an inquiry as to rent or mesne profits case of decree for p rent or mesne or any other maNtoter, the property of the judgement debtor may, profits or other before the avemd . ount due from him has been ascertained, be matter, amount of which to be attached easse rin the case of an ordinary decree for the payment subsequently of montse h yr . determined g All r i [r. 41] a. i Attachment za n n 44. Where the property to be attached is movable property, of movable a property, othf Ter other than agricultural produce, in the possession of the o than agernic tultural judgment debtor, the attachment shall be made by actual produmce, in poernssession of seizure and the attaching officer shall keep the property in his ov G judgment debtor own custody or in the custody of one of his subordinates, and 5 20 2 shall be responsible for the due custody thereof: © Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once. [r. 42] 146 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Attachment 45. Where the property to be attached is agricultural produce, of agricultural produce the attachment shall be made by affixing a copy of the warrant of attachment- (a) where such produce is a growing crop, on the land on . which such crop has grown; or AG O (b) where such produce has been cut or gathered, on the n o f place in which it is deposited, io iss and another copy on the outer door or some other conspiceurmous part of the house in which the judgment debtor or t p oduinarily resides or, with the leave of the court, on the out weir th door or on some other conspicuous part of the house d u tein which he carries on business or personally works for gtraibis in or in which he is known to have last resided or car roir edd on business or personally worked for gain, and the proeduc duce shall thereupon be deemed to have passed into the ppro dssession of the court. e be r [r. 43] ay Provisions as 46.–(1) Where agriculturalo kp mroduce is attached, the court shall to agricultural produce under make such arrangemenst b o i s for the custody thereof as it may attachment deem sufficient and, off o thr the purposes of enabling the court to make such arrang rt peaments, every application for the attachment of a growing c.r No op shall specify the time at which it is likely to be fit to be crvue dt or gathered. (2) Subse re ject to such conditions as may be imposed by the courtig hi tns this behalf either in the order of attachment or in an Ayl l rsubsequent order, the judgment debtor may tend, cut, ngiaa . ther and store the produce and do any other act necessary nz a a for maturing or preserving it, and if the judgment debtor fails of T t to do all or any of such acts the decree-holder may, with the n me permission of the court and subject to the like conditions, do rn ve all or any of them either by himself or by any person appointed o 5 G by him in this behalf, and the costs incurred by the decree- 20 2 holder shall be recoverable from the judgment debtor as if they © were included in, or formed part of, the decree. (3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to 147 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] require re-attachment merely because it has been severed from the soil. (4) Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be fit to be cut or gathered, the court may suspend the G. A execution of the order for such time as it thinks fit, and may, of O in its discretion, make a further order prohibiting the removasilo n of the crop pending the execution of the order of attachmemnis r t. (5) A growing crop which from its nature does not a pe udt mit of being stored shall not be attached under this rule awtit haony time less than twenty days before the time at which it teisd likely to be fit to be cut or gathered. ibu dis tr r [r. 44] ed o Attachment of 47.–(1) In the case of- ucd debt, share and o other property (a) a debt not secured by a neg reo ptriable instrument; not in possession (b) a share in the capital of ya b  ecorporation; of judgment debtor (c) other movable propke a mrty not in the possession of the judgment debtors, b oeoxcept property deposited in, or in the custody off, tha iny court, the attachment shaarltl o be made by a written order prohibiting- (i) in tNhoe p case of the debt, the creditor from recovering t . vehde debt and the debtor from making payment er es thereof until the further order of the court; hts( iri) in the case of the share, the person in whose name l ri g l the share may be standing from transferring the . A nia same or receiving any dividend thereon; zan (iii) in the case of the other movable property except of Ta as aforesaid, the person in possession of the same en t from giving it over to the judgment debtor. ern m (2) A copy of such order shall be fixed on some conspicuous v G o part of the court-house, and another copy shall be sent in the 5 02 case of the debts, to the debtor, in the case of the share, to ©2 the proper officer of the corporation, and, in the case of the other movable property, except as aforesaid, to the person in possession of the same. 148 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) A debtor prohibited under item (i) of subrule (1) may pay the amount of his debt into court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same. [r. 45] . OAG of Attachment of 48. Where the property to be attached consists of the shar n share in movables seio or interest of the judgment debtor in movable propremr isty belonging to him and another as co-owner, the attac pe uth ment shall be made by a notice to the judgment debtor p t wri o hohibiting him from transferring the share, interest or c thedarging it in any way. ibur di st or [r. 46] ce d Attachment of 49.–(1) Where the property to be roadt utached is the salary of salary an employee, the court may ordererp that the amount shall be withheld from such salary eithaeyr b ien one payment or by monthly installments as the court mka my direct, and, upon notice of the o order to the employer osf bt ohe said employee, or in the case of a i Government servant,f ttho o the paying authority, the employer or the paying authoriatrp yt or other person whose duty is to disburse such salary sha. Nll o withhold and remit to the court the amount due under trhvee d said order, or the monthly installments. (2) A e rne s order attaching the salary of an employee may be madeig hb tsy the court whether the employee or the employer or th ll r eA paying authority or other person or is not within the local nliaim . its of the court’s jurisdiction. nz a a (3) Where the attachable proportion of such salary is of T t already being withheld and remitted to a court in pursuance of n me a previous and unsatisfied order of attachment, the employer rn ve or, in the case of a Government servant, the paying authority o G shall forthwith return the subsequent order to the court 02 5 2 issuing it with a full statement of all the particulars of the © existing attachment. (4) For purposes of this rule- “paying authority” means the Assistant Paymaster-General or such other officer as may be appointed as paying 149 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] authority for any Government servant or any particular class of Government servants; “employee” includes a Government servant; “employer” includes the Governments. . [r. 47] AG O of Attachment 50.–(1) Save as otherwise provided by this rule, propertsyio n of partnership property belonging to a partnership shall not be attached or soeld is rm in execution of a decree other than a decree passed againt pu st the o firm or against the partners in the firm as such. th wi (2) The court may, on the application of th d uete holder of a decree against a partner, make an order charsgtr iibng the interest of such partner in the partnership properrt dy i o and profits with payment of the amount due under the d d ce cree, and may, by the same or a subsequent order, appoinrotd ua receiver of the share of such partner in the profits, ew p rehether already declared or accruing, and of any other moy nba ey which may be coming to him in respect of the parotkn mership, and direct accounts and inquiries and make an o so brder for the sale of such interest or other order as migh thi ot f have been directed or made if a charge had been made inp afa rt vour of the decree-holder by such partner, or as the circumNo s tances of the case may require. (3) The orvt . ehder partner or partners shall be at liberty at any time to resdere eem the interest charged or, in the case of a sale being hdtsi rected, to purchase the same. ( g ll4 ri) Every application for an order under subrule (2) shall be nsiae . rAved on the judgment debtor and on his partners or such of a nz them as are within Tanzania. Ta of (5) Every application made by any partner of the judgment nt e debtor under subrule (3) shall be served on the decree-holder ern m and on the judgment debtor, and on such of the other partners v G o as do not join in the application and as are within Tanzania. 5 02 (6) Service under subrule (4) or subrule (5) shall be deemed ©2 to be service on all the partners, and all orders made on such applications shall be similarly served. [r. 48] 150 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Execution of 51.–(1) Where a decree has been passed against a firm, decree against firm execution may be granted- (a) against any property of the partnership; (b) against any person who has appeared in his own name . under rule 6 or rule 7 of Order XXIX, or who has G OA admitted on the pleading that he is, or who has been n o f adjudged to be, a partner; or io iss (c) against any person who has been individually serv r peedm as a partner with a summons and has failed to appuet o ar. (2) Where the decree-holder claims to be entitlewdith to cause the decree to be executed against any person otuhtee dr than such a person as is referred to in subrule (1), partaribgraphs (b) and (c), as being a partner in the firm, he mayr d is o apply to the court which passed the decree for leave, an ed udc where the liability is not disputed, such court may grantp rsou dch leave, or where such liability is disputed, may order tha rtee the liability of such person be tried and determined in anyy m ba anner in which any issue in a suit may be tried and deter m oo mk ined. (3) Where the liabil b iist y of any person has been tried and determined under s uofb thrule (2), the order made thereon shall have the same forcaert p and be subject to the same conditions as to appeal or ot.h Ne orwise as if it were a decree. (4) Save ravse d against any property of the partnership, a decree against a se r efirm shall not release, render liable or otherwise affect any pigahr tstner therein unless he has been served with a summons to Aal lp rpear and answer. nia . [r. 49] nz a a Attachment f T o 52. Where property is a negotiable instrument not deposited in a of nego t instrume tinable ents court, nor in the custody of a public officer, the attachment shall rnm ve be made by actual seizure and the instrument shall be brought 5 G o into court and held subject to further orders of the court. 022 [r. 50] © Attachment 53. Where the property to be attached is in the custody of of property in custody of court any court or public officer, the attachment shall be made by a or public officer notice to such court or officer, requesting that such property 151 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] and any interest or dividend becoming payable thereon may be held subject to the further orders of the court from which the notice is issued: Provided that, where such property is in the custody of a court, any question of title or priority arising between the AG. decree-holder and any other person, not being the judgment of O debtor, claiming to be interested in such property by virtue sosfi o n any assignment, attachment or otherwise, shall be determeinm i r ed by such court. ut p ith o w [r. 51] ted Attachment of 54.–(1) Where the property to be attached is riab u decree, either decrees t for the payment of money or for sale in deisr nforcement of a o mortgage or charge, the attachment shacleld be made- (a) where the decree was passed b u royd the same court, then by order of such court; or p e r e (b) where the decree soughyt ba to be attached was passed by another court, theno kb my the issue to such other court of a notice by the ic o s oburt which passed the decree sought to be execute odf ,t hrequesting such other court to stay the execution poaf rt its decree unless and until- (i) theN o. court which passed the decree sought to be d erv eexecuted, cancels the notice; or ( s irie) the holder of the decree sought to be executed or igh ts his judgment debtor applies to the court receiving All r such notice to execute its own decree. nia . (2) Where a court makes an order under paragraph (a) za an of subrule (1), or receives an application under item (ii) of of T t paragraph (b) of the said subrule, it shall, on the application n me of the creditor who has attached the decree or his judgment ernv debtor, proceed to execute the attached decree and apply the o 5 G net proceeds in satisfaction of the decree sought to be executed. 2 20 (3) The holder of a decree sought to be executed by the © attachment of another decree of the nature specified in subrule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof. 152 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in subrule (1), the attachment shall be made by a notice by the court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting AG. him from transferring or charging the same in any way; and, of O where such decree has been passed by any other court, also bsyio n sending to such other court a notice to abstain from execurtmin isg the decree sought to be attached until such notice is cant pu ceelled by the court from which it was sent. ith o (5) The holder of a decree attached under th tedis w rule shall give the court executing the decree such infotrimb u r ation and aid as may reasonably be required. di s (6) On the application of the holder od fo r ce a decree sought to be executed by the attachment of arond uother decree, the court making an order of attachment reu pnder this rule shall give notice of such order to the juy db egment debtor bound by the decree attached, and no paykm meant or adjustment of the attached decree made by the judgmoo b ent debtor in contravention of such order after receipt of f ntho istice thereof, either through the court or otherwise, shall rbt oe recognised by any court so long as the attachment remaoi p a N ns in force. ed . v [r. 52] ers Attachment 55.–(1)ts rW e here the property is immovable, the attachment of immovable igh property shalll lr be made by an order prohibiting the judgment debtor fiar.o Am transferring or charging the property in any way, and all n nz a persons from taking any benefit from such transfer or charge. Ta f (2) The order shall be proclaimed at some place on or o en t adjacent to such property by such means as are used locally to ern m make public pronouncements and a copy of the order shall be ovG fixed on a conspicuous part of the property and then upon a 5 02 conspicuous part of the court-house. ©2 [r. 53] 153 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Removal of 56. Where- attachment after satisfaction of (a) the amount decreed with costs and all charges and decree expenses resulting from the attachment of any property are paid into court; . (b) satisfaction of the decree is otherwise made through AG O the court or certified to the court; or n o f (c) the decree is set aside or reversed, iss io the attachment shall be deemed to be withdrawn, anedrm, in the case of immovable property, the withdrawal sha p olul, t if the judgment debtor so desires, be proclaimed at h isi th w expense, and a copy of the proclamation shall be affixed d uinte the manner prescribed by rule 55. trib r d is o [r. 54] ce d Order for 57. Where the property attached is rocdu urrent coin or currency payment of coin or currency notes notes, the court may, at any timee r edp uring the continuance of to party entitled the attachment, direct that suchy ba coin or notes or a part thereof under decree sufficient to satisfy the decroek e m be paid over to the party entitled under the decree to recesi bi voe the same. f th o [r. 55] pa rt Determination of 58. Where anyN poroperty has been attached in execution of a attachment . decree, but beydrv reason of the decree-holder’s default the court is unable tore s peroceed further with the application for execution, it shalhltsig either dismiss the application or for any sufficient re asll A or n, adjourn the proceedings to a future date and upon the ndiaa i.smissal of such application the attachment shall cease. an z [r. 56] T t o f enm Investigation of Claims and Objections ve rn G oInvestigation 59.–(1) Where any claim is preferred to, or any objection is 5 02 of claims to, 2 and objections made to the attachment of, any property attached in execution © to attachment of a decree on the ground that such property is not liable to such of, attached property and attachment, the court shall proceed to investigate the claim or postponement objection with the like power as regards the examination of of sale 154 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the claimant or objector and in all other respects, as if he was a party to the suit: Provided that, no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed. AG. (2) Where the property to which the claim or objection of O applies has been advertised for sale, the court ordering thseio n sale may postpone it pending the investigation of the celraiism m or objection. t p ou ithw [r. 57] ted Evidence to 60. The claimant or objector must adduce ev u tribdence to show be adduced by dis claimant that at the date of the attachment he had sr ome interest in, or was possessed of the property attached. d o uc e rod [r. 58] re p Release of 61. Where upon the said inves bteigation the court is satisfied property from y attachment that for the reason statedk min a the claim or objection such property was not, when b oa ottached, in the possession of the judgment debtor or off t hs isome person in trust for him, or in the occupancy of a tenarat no t or other person paying rent to him, or that, being in t o p Nhe possession of the judgment debtor at such time, it was d. rv eso in his possession, not on his own account or as his ow e rens property, but on account of or in trust for some other g hp tserson, or partly on his own account and partly on accAlol rui nt of some other person, the court shall make an order nriae .leasing the property, wholly or to such extent as it thinks fit, nz a a from attachment. of T [r. 59] en t m Diesranllowance of 62. Where the court is satisfied that the property was at the Gocvlaim to property attached time it was attached, in the possession of the judgment debtor 02 5 2 as his own property and not on account of any other person, or © was in the possession of some other person in trust from him, or in the occupancy of a tenant or other person paying rent to him, the court shall disallow the claim. [r. 60] 155 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Continuance 63. Where the court is satisfied that the property is subject to a of attachment subject to claim mortgage or charge in favour of some person not in possession, of incumbrancer and thinks fit to continue the attachment, it may do so, subject to such mortgage or charge. . [r.61] G f O A o Saving of suits to 64. Where a claim or an objection is preferred, the party againsstio n establish right to attached property whom an order is made may institute a suit to establish is er mthe right which he claims to the property in dispute, but, ust u pbject o to the result of such suit, if any, the order shall be conithw clusive. ute d [r. 62] ib ist r Sale Generally r d ed o c Power to order 65. A court executing a decree mayro do urder that any property property attached to be sold and attached by it and liable to sale, or rseupe ch portion thereof as may proceeds to be seem necessary to satisfy the d b aeycree, shall be sold, and that the paid to person entitled proceeds of such sale, or a ks umo fficient portion thereof, shall be paid to the party entitleids bu onder the decree to receive the same. f tho [r. 63] art Sales, by whom 66. Save as otheor wp N ise prescribed, every sale in execution of a conducted and how made decree shall bde.rve conducted by an officer of the court or by such other perssoee n as the court may appoint in this behalf, and shall be mahdts r g e by public auction in the manner prescribed. l riAl [r. 64] . nia Proclamation ofn z a 67.–(1) Where any property is ordered to be sold by public sales by publ iTca auction of auction in execution of a decree, the court shall cause a nt e proclamation of the intended sale to be made in the language ern m of such court. Gov (2) The proclamation shall be drawn-up after notice to the 25 20 decree-holder and the judgment debtor and shall state the © time and place of sale, and specify as fairly and accurately as possible- (a) the property to be sold; (b) the rent, if any, payable in respect of the property; 156 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; (e) every other thing which the court considers material . for a purchaser to know in order to judge the nature OAG and value of the property. n o f (3) Every application for an order for sale under this ruislse io shall be accompanied by a statement signed and vereirfimed in the manner hereinbefore prescribed for the signoiun t gp and verification of pleadings and containing, so far a wsi t hthey are known to or can be ascertained by the perso d unte making the verification, the matters required by subrule (s2tri )ib to be specified in the proclamation. or d (4) For the purpose of ascertainicnegd the matters to be specified in the proclamation, the u rocdourt may summon any person whom it thinks necessary et or e psummon and may examine him in respect to any such matatye brs and require him to produce any document in his posseosks i mon or power relating thereto. bo is [r. 65] of th Mode of making 68.–(1) Every prorct a lamation shall be made and published, proclamation p as nearly as m Naoy be, in the manner prescribed by rule 55, . subrule (2). d rve (2) Whseere re the court so directs, such proclamation shall also be pub hltsished in the Gazette or in a local newspaper, or in both, andll rti g A he costs of such publication shall be deemed to be costs noiaf . the sale. a an z (3) Where property is divided into lots for the purpose T of of being sold separately, it shall not be necessary to make a nte separate proclamation for each lot, unless property notice of rnme the sale cannot, in the opinion of the court, otherwise be given. ov G [r. 66] 02 5 ©2 Time of sale 69. Save in the case of property of the kind described in rule 46, no sale hereunder shall, without the consent in writing of the judgment debtor, take place until after the expiration of at least thirty days in the case of immovable property, and of at 157 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] least fifteen days in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the court-house of the judge or magistrate ordering the sale. . [r. 67] AG of O Adjournment or 70.–(1) The court may, in its discretion, adjourn any salseio n stoppage of sale hereunder to a specified day and hour, and the offiermc iser conducting any such sale may, in his discretion, adjou p ut rn the o sale, recording his reason for such adjournment: th wi Provided that, where the sale is made in, uoter d within the precincts of the court-house, no such adjoutrribs nment shall be made without the leave of the court. i or d (2) Where a sale is adjourned under d cseubrule (1) for a longer period than seven days, a fresh prorocdl uamation under rule 68 shall be made, unless the judgmene rt e dp ebtor consents to waive it. (3) Every sale shall be stopapye bd if, before the lot is knocked down, the debt and costs, oikn mcluding the costs of the sale, are rendered to the officer c obos nducting the sale, or proof is given to his satisfaction thaoft i ththe amount of such debt and costs have been paid into the crto pa urt which ordered the sale. o N [r. 68] ed . v Defaulting 71. Any d r eseeficiency of price which may happen on a re-sale by purchaser answerable for reasonh tso rf the purchaser’s default, and all expenses attending g loss on re-sale suc i lhl r re-sale, shall be certified to the court by the officer or noiat . hAer person holding the sale and shall, at the instance of either za an the decree-holder or the judgment debtor, be recoverable from f T o the defaulting purchaser under the provisions relating to the nte execution of a decree for the payment of money. rnm ve [r. 69] o 25 G 0 Decree-holder not 72.–(1) A holder of a decree in execution of which property is ©2 to bid for or buy property without sold shall not without the express permission of the court, bid permission for or purchase the property. (2) Where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may, 158 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] subject to the provisions of section 60, be set-off against one another, and the court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly. (3) Where a decree-holder purchases, by himself or through another person, without such permission, the court may, if it . AG thinks fit, on the application of the judgment debtor or any of O other person whose interests are affected by the sale, by ordesrio n set aside the sale; and the costs of such application and orrdm iesr, and any deficiency of price which may happen on theu e tr pe-sale and all expenses attending it, shall be paid by the decretheowi -holder. ted [r. 70] trib u Restriction 73. An officer or other person having any d duisr ty to perform in on bidding or o purchase by connection with any sale shall not, eithered directly or indirectly, officer c bid for, acquire or attempt to acq u roudire any interest in the property sold. p e r e ay b [r. 71] k m Sale o o s fb M o ovable Property f th i Sale of 74.–(1) Where thea rpt oroperty to be sold is agricultural produce, agricultural produce the sale shall, s p Naove as otherwise provided by any law for the time being in df.o ve rce, be held- (a) w r ehseere such produce is a growing crop, on or near the sl arht nd on which such crop has grown; or (llb ri) g where such produce has been cut or gathered, at or a. A ni near the place in which it is deposited: za an Provided that, the court may direct the sale to be held at of T the nearest place of public resort, if it is of opinion that the en t produce is thereby likely to sell to greater advantage. m ern (2) Where, on the produce being put up for sale- v G o (a) a fair price, in the estimation of the person holding the 5 02 sale, is not offered for it; and ©2 (b) the owner of the produce or a person authorised to act in his behalf applies to have the sale postponed till the next day or, if a market is held at the place of sale, the next market-day, 159 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the sale shall be postponed accordingly and shall be then completed, whatever price may be offered for the produce. [r. 72] Special provisions 75.–(1) Where the property to be sold is a growing crop and G. relating to A growing crops the crop from its nature admits of being stored but has not yet of O been stored, the day of the sale shall be so fixed as to admit ofio ns its being made ready for storing before the arrival of such rdmaisy, e and the sale shall not be held until the crop has beenu t c put or gathered and is ready for storing. ith o w (2) Where the crop from its nature does not atdedm it of being stored, it may be sold before it is cut and g u star itbhered and the purchaser shall be entitled to enter on thoer dlai nd and to do all that is necessary for the purpose of t d ceending and cutting or gathering it. u pro d e e r [r. 73] y b Negotiable 76. Where the property to be a k m sold is a negotiable instrument or instruments and shares in a share in a corporation t bhoe o court may, instead of directing the corporations sale to be made by pfu thb islic auction, authorise the sale of such instrument or sharaert othrough a broker. p . N o [r. 74] rve d Sale by public 77.–(1) We eshere movable property is sold by public auction, the auction price ohfts erach lot shall be paid at the time of sale or as soon after as tlh g l rie officer or other person holding the sale directs, and in diae. A n fault of payment, the property shall forthwith be re-sold. nz a (2) On payment of the purchase money, the officer or other Ta of person holding the sale shall grant a receipt for the same and nt e the sale shall become absolute. ern m (3) Where the movable property to be sold is a share in goods v G o belonging to the judgment debtor and a co-owner, and two or 5 02 more persons, of whom one is such co-owner, respectively, bid ©2 the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner. [r. 75] 160 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Irregularity not 78. No irregularity in publishing or conducting the sale to vitiate sale, but any person of movable property shall vitiate the sale, but any person injured may sue sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for . compensation or, if such other person is the purchaser, for AG O the recovery of the specific property and for compensation in of n default of such recovery. io iss [re.r m76] p ou t Delivery of 79.–(1) Where the property sold is movable priothperty of movable property, w debts and shares which actual seizure has been made, it shall buete ddelivered to the purchaser. tribis (2) Where the property sold is mova obr lde property in the possession of some person other than thedc judgment debtor, the delivery thereof to the purchaser shalrol db ue made by giving notice to the person in possession prohe ri ebpiting him from delivering possession of the property to aany by person except the purchaser. (3) Where the propertoyk msold is a debt not secured by a negotiable instrument iso br o is a share in a corporation, the delivery thereof shalol f b the made by a written order of the court prohibiting the creadrti p tor from receiving the debt or any interest thereon, and o .t Nhe debtor from making payment thereof to any person d rvexcept the purchaser, or prohibiting the person in whosere sn eame the share may be standing from making any transfgeh trs of the share to any person except the purchaser, or recell irviA ing payment of any dividend or interest thereon, and the nma . i anager, secretary or other proper officer of the corporation za an from permitting any such transfer or making any such payment T of to any person except the purchaser. nte [r. 77] ern m o GTvransfer of 80.–(1) Where the execution of a document or the endorsement 25 negotiable 20 instruments and of the party in whose name a negotiable instrument or a © shares share in a corporation is standing, is required to transfer such negotiable instrument or share, the judge or magistrate or such officer as he may appoint in this behalf may execute such document or make such endorsement as may be necessary, 161 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] and such execution or endorsement shall have the same effect as an execution or endorsement by the party. (2) The execution of a document or the endorsement of a negotiable instrument may be in the following form: “A.B. by C.D., Judge/magistrate of the court of.................... AG. (or as the case may be), in a suit by E.F. against A.B.”. f O o (3) Until the transfer of such negotiable instrument ossri o n share the court may, by order, appoint some person to reecremiive any interest or dividend due thereon and to sign a rt epou ceipt for the same, and any receipt so signed shall be as th w ivalid and effectual for all purposes as if the same had beenu tse dig ned by the party himself. trib dis d o r [r. 78] ce Vesting order 81. In the case of any movable pr u oodperty not hereinbefore in case of other r property provided for, the court may m arek pe an order vesting such property in the purchaser oary baes he may direct, and such property shall vest accordinkg m oo ly. his b [r. 79] f t Saart o p l e of Immovable Property o N Courts that may 82. Sales of vimd . e movable property in execution of decrees may order sales be ordereedse rby any court. ts r [r. 80] l ri gh l Postponement 8 A a3. .–(1) Where an order for the sale of immovable property of sale to enable nia judgment debtonrz has been made, if the judgment debtor can satisfy the court a to raise amoofu Tnt of that there is reason to believe that the amount of the decree decree en t may be raised by the mortgage or lease or private sale of such ern m property, or some part thereof, or of any other immovable Gov property of the judgment debtor, the court may, on his 02 5 2 application, postpone the sale of the property comprised in © the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount. (2) In such case the court shall grant a certificate to the judgment debtor authorising him within a period to be 162 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] mentioned therein, and notwithstanding anything contained in section 57, to make the proposed mortgage, lease or sale: Provided that, all moneys payable under such mortgage, lease or sale shall be paid not to the judgment debtor, but, save in so far as a decree-holder is entitled to set off such money AG. under the provisions of rule 72, into court: O of Provided further that, no mortgage, lease or sale undesrio n this rule shall become absolute until it has been confirmedrm ibsy the court. peut (3) This rule shall not be deemed to apply to ithao sale of property directed to be sold in execution of a dteedc rwee for sale in enforcement of a mortgage of, or charge ont,ri bs uuch property. is r d [r. 81] d oe Deposit by 84.–(1) On every sale of immovabodle uc property, the person purchaser and re- sale on default declared to be the purchaser shal l r r eppay immediately after such declaration a deposit of twentyy- fib eve per centum on the amount of his purchase money to thek omffia cer or other person conducting the sale and, in defaul oo st bof such deposit, the property shall forthwith be re-sold. f th i (2) Where the daertc oree-holder is the purchaser and is entitled to set-off the p Nuor pchase money under rule 72, the court may dispense witvh . ed the requirements of this rule. r es e [r. 82] r hts Time for 85. llTh ri g e full amount of purchase-money payable shall be paid payment in full of bay. A purchase-money i the purchaser into court before the court closes on the an nz fifteenth day from the sale of the property: Ta of Provided that, in calculating the amount to be so paid into nt e court, the purchaser shall have the advantage of any set-off to m ern which he may be entitled under rule 72. ov G [r. 83] 25 ©20 Procedure 86. In default of payment within the period mentioned in in default of payment rule 85, the deposit may, if the court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and property shall be re-sold, and the defaulting purchaser shall 163 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. [r. 84] Notification on 87. Every re-sale of immovable property, in default of payment G. re-sale A of the purchase money within the period allowed for such f O o payment, shall be made after the issue of a fresh proclamatiosnio n in the manner and for the period hereinbefore prescribeedrm f ios r the sale. t p ou with [r. 85] ted Bid of co-sharer 88. Where the property sold is a share of undiviidbutr ed immovable to have preference property and two or more persons, of whom d oisr ne is a co-sharer, o respectively bid the same sum for such d cperoperty or for any lot, the bid shall be deemed to be the bidr oodf u the co-sharer. p e r e [r. 86] y b Application to 89.–(1) Where immovable pkr mo aperty has been sold in execution set aside sale on deposit of a decree any person, ei tbho oer owning such property or holding an interest therein by vthiif rstue of a title acquired before such sale, may apply to have tahrt eo sale set aside on his depositing in court- p (a) for paymo N ent to the purchaser, a sum equal to five . percreven dt of the purchase-money; and (b) forers epayment to the decree-holder, the amount specified ts gh in the proclamation of sale as that for the recovery of All r i which the sale was ordered, less any amount which . nia may, since the date of such proclamation of sale, have za an been received by the decree-holder. f T t o (2) Where a person applies under rule 90 to set aside the sale men of his immovable property, he shall not, unless he withdraws ernv his application, be entitled to make or prosecute an application Go 5 under this rule. 022 (3) This rule shall not relieve the judgment debtor from any © liability he may be under in respect of costs and interest not covered by the proclamation of sale. [r. 87] 164 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Application to 90.–(1) Where any immovable property has been sold in set aside sale on ground of execution of a decree, the decree-holder, or any person entitled irregularity or to share in rateable distribution of assets, or whose interests are fraud affected by the sale, may apply to the court to set aside the sale . on the ground of a material irregularity or fraud in publishing OAG or conducting it: n o f Provided that, no sale shall be set aside on the ground isosf io irregularity or fraud unless upon the facts proved, the couerrmt is satisfied that the applicant has sustained substantial inujto u pry by reason of such irregularity or fraud. ith d w ute [r. 88] str ib Application 91. The purchaser at any such sale in execuotri doin of a decree may by purchaser to set aside apply to the court to set aside the sale, o d cen the ground that, the sale on ground judgment debtor has no saleable interorde ust in the property sold. of judgment rep debtor having no e [r. 89] b saleable interest may Sale, when 92.–(1) Where no applicat k oio n is made under rule 89, rule 90 or to become absolute or be set rule 91, or where sucht b haispplication is made and disallowed, the aside court shall make an of rt rder confirming the sale and thereupon the sale shall becoo pm a e absolute: Provided . N etdhat, where it is provided by any law that a dispositione rvs of property in the execution of a decree or order shall ntos tr ehave effect or be operative without the approval or cons h l reignt of some person or authority other than the court, the cao l . Aurt shall not confirm such disposition under this rule unless n za si uch approval or consent has first been granted. n Ta (2) Where such application is made and allowed, and ofnt where, in the case of an application under rule 89, the deposit e rnm required by that rule is made within thirty days from the date veo of sale, the court shall make an order setting aside the sale: 5 G2 Provided that, no order shall be made unless notice of the 20© application has been given to all persons affected thereby. (3) A suit to set aside an order made under this rule shall not be brought by any person against whom such order is made. [r. 90] 165 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Return of 93. Where a sale of immovable property is set aside under purchase money in certain cases rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the court may direct, against any person to whom it has been paid. . [r. 91] OAG of Certificate to 94. Where a sale of immovable property has become absolutesi,o n purchaser the court shall grant a certificate specifying the propertye rs s moi ld and the name of the person who at the time of sale is duet c plared o to be the purchaser and the certificate shall bear theithw date and the day on which the sale became absolute. ted ibutr [r. 92] r d is o Delivery of 95. Where the immovable property socledd is in the occupancy property in occupancy of of the judgment debtor or of some proedr uson on his behalf or of judgment debtor some person claiming under a tei tr elep created by the judgment debtor subsequently to the atatya bchment of such property and a certificate in respect the m orkeof has been granted under rule 94, the court shall, on t o ish be application of the purchaser, order delivery to be made bf tyh o putting such purchaser or any person whom he may ap rt papoint to receive delivery on his behalf in possession of .t Nh oe property and, if need be, by removing any person wheorv r eedfuses to vacate the same. es [r. 93] hts r ig Delivery of 96 ll r A. Where the property sold is in the occupancy of a tenant or property in ia. occupancy of nother person entitled to occupy the same and a certificate in tenant nz a a respect thereof has been granted under rule 94, the court shall, f T t o on the application of the purchaser, order delivery to be made n me by affixing a copy of the certificate of sale in some conspicuous ern ov place on the property, and proclaiming to the occupant by such 5 G means as are used locally to make public pronouncements that 2 ©20 the interest of the judgment debtor has been transferred to the purchaser. [r. 94] 166 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Resistance to Delivery of Possession to Decree-Holder or Purchaser Resistance or 97.–(1) Where the holder of a decree for the possession of obstruction to possession immovable property or the purchaser of any such property AG. of immovable sold in execution of a decree is resisted or obstructed by any of O property person in obtaining possession of the property, he may makseio n an application to the court complaining of such resist is pe armnce or obstruction. ut (2) The court shall fix a day for investigating the wmithaotter and shall summon the party against whom the applictaetdi on is made to appear and answer the same. trib u s or di [r. 95] d e Resistance or 98. Where the court is satisfied dtu c ro hat the resistance or obstruction by judgment debtor obstruction was occasioned with reo put any just cause by the judgment debtor or by some oy tb e a her person at his instigation, it shall direct that the applikc mant be put into possession of the o property, and where thes a bp oplicant is still resisted or obstructed i in obtaining possessi th oof n, the court may also, at the instance of the applicant, ord pear r tthe judgment debtor, or any person acting at his instigatio. Nn o, to be detained as a civil prisoner for a term which may revex dtend to thirty days. e es [r. 96] ts r igh Resistance or 99A. ll rWhere the court is satisfied that the resistance or obstruction . by bona fide noiabstruction was occasioned by any person, other than the zaclaimant an judgment debtor, claiming in good faith to be in possession of f T t o the property on his own account or on account of some person n me other than the judgment debtor, the court shall make an order ernv dismissing the application. 5 G o [r. 97] 2 ©20 Dispossession by 100.–(1) Where any person other than the judgment debtor is decree-holder or purchaser dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser 167 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] thereof, he may make an application to the court complaining of such dispossession. (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. G. A [r. 98] of O sio n Bona fide 101. Where the court is satisfied that the applicant was is claimant to rm in be restored to possession of the property on his own account or on auct pceount possession of some person other than the judgment debtor, it shthaowi ll direct that the applicant be put into possession of the prteod perty. trib u s [r. 99] dir Rules not 102. Rules 99 and 100 shall not apepd loy to resistance or applicable c to transferee obstruction in execution of a decrroede u for the possession of pendente lite immovable property by a perso p rne to whom the judgment debtor has transferred the pro be apyerty after the institution of the suit in which the decree waks m passed or to the dispossession of o any such person. bo thi s of [r. 100] art Orders conclusive 103. Any party no opt being a judgment debtor against whom an subject to regular d. N suit order is madvee under rules 100, 101 or 102 may institute a suit to establiesshe rthe right which he claims to the present possession r of the hptsroperty; but subject to the result of such suit, if any, the ordlel rri g A shall be conclusive. nia . [r. 101] zan f T a o ORDER XXII nt rnm e DEATH, MARRIAGE AND INSOLVENCY ov e OF PARTIES G 02 5 ©2 No abatement 1. The death of a plaintiff or defendant shall not cause the suit by party’s death if right to sue to abate if the right to sue survives. survives 168 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Procedure where 2. Where there are more than one plaintiffs or defendants and one of several plaintiffs or any of them dies, and where the right to sue survives to the defendants dies surviving plaintiffs or plaintiff alone, or against the surviving and right to sue survives defendant or defendants alone, the court shall cause an entry to . that effect to be made on the record and the suit shall proceed AG O at the instance of the surviving plaintiff or plaintiffs, or against n o f the surviving defendant or defendants. iss io erm Procedure in case 3.–(1) Where one of two or more plaintiffs dies and t t ohue p right of death of one of several plaintiffs to sue does not survive to the surviving plaintiff o wri thplaintiffs or of sole plaintiff alone, or a sole plaintiff or sole surviving plaintetdu iff dies and the right to sue survives, the court, on an a ib isptrplication made in that behalf, shall cause the legal re opr rdesentative of the deceased plaintiff to be made a party acnedu d shall proceed with the suit. rodp (2) Where within the time lbiem reited by law no application is made under subrule (1), thaye suit shall abate so far as the deceased plaintiff is concer m oo kned and, on the application of the defendant, the court maisy b award to him the costs which he may have incurred in def oefn thding the suit, to be recovered from the estate of the dece apsa retd plaintiff. No . Procedure in 4.–(1) Whervre d one of two or more defendants dies and the case of death of se one of several right to rseue does not survive against the surviving defendant defendants or of or deigfhe tsndants alone, or a sole defendant or sole surviving sole defendant defell A nr dant dies and the right to sue survives, the court, on naiaa n. application made in that behalf, shall cause the legal nz Ta representative of the deceased defendant to be made a party t o f and shall proceed with the suit. men (2) A  person so made a party may make any defense ern ov appropriate to his character as legal representative of the 5 G deceased defendant. 02 ©2 (3) Where within the time limited by law no application is made under subrule (1), the suit shall abate as against the deceased defendant. 169 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Determination 5. Where a question arises as to whether any person is or is not of question as to legal the legal representative of a deceased plaintiff or a deceased representative defendant, such question shall be determined by the court. No abatement by 6. Notwithstanding anything contained in the foregoing rules, G. reason of death A after hearing whether the cause of action survives or not, there shall be O of no abatement by reason of the death of either party betweenio nss the conclusion of the hearing and the pronouncing of mtier he judgment, but judgment may in such case be pronuot o upnced notwithstanding the death and shall have the same th w iforce and effect as if it had been pronounced before the deatehdu took place. tribs Suit not abated 7.–(1) The marriage of a female plaintiff or i ord defendant shall not by marriage of female party cause the suit to abate, but the suit mcaeyd notwithstanding be proceeded with to judgment, and, whroedr ue the decree is against a female defendant, it may be execeu rt eepd against her alone. (2) Where the husband is by ba law liable for the debts of his wife, the decree may, witohk mthe permission of the court, be executed against the huiss bb oand also, and, in case of judgment for the wife, execuf ttho ion of the decree may, with such permission, be issurt pa ed upon the application of the husband, where the hus.b Na on d is by law entitled to the subject matter of the decree. d erv e es When plaintiff ’s 8.–(1)h tsTh r e insolvency of a plaintiff in any suit which the insolvency rig bars suit and assillgnee or receiver might maintain for the benefit of his A procedure where nciar . editors shall not cause the suit to abate unless such assignee assignee fails to nz a continue suit oar or receiver declines to continue the suit or, unless for any give securi T otyf special reason the court otherwise directs, to give security for nt me the costs thereof within such time as the court may direct. ernv (2) Where the assignee or receiver neglects or refuses to Go continue the suit and to give such security within the time 02 5 2 so ordered, the defendant may apply for the dismissal of the © suit on the ground of the plaintiff ’s insolvency, and the court may make an order dismissing the suit and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff ’s estate. 170 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Effect of 9.–(1) Where a suit abates or is dismissed under this Order, no abatement or dismissal fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an AG. order to set aside the abatement or dismissal, and if it is proved of O that he was prevented by any sufficient cause from continuinsgio n the suit, the court shall set aside the abatement or dismeirmssisal upon such terms as to costs or otherwise as it thinks fit p u.t Cap. 89 (3) The provisions of section 5 of the Law of Limitthaowi tion Act shall apply to applications under subrule (2). ted trib u Procedure in case 10.–(1) In other cases of an assignment, crera dt iison or devolution of assignment before final order of any interest during the pendency of ae dc s ouit, the suit may, by in suit leave of the court, be continued by ord uro against the person to or upon whom such interest has com re p or devolved. (2) The attachment of a decrye eb e a pending an appeal therefrom shall be deemed to be an ki nmterest entitling the person who procured such attachme oo sn bt to the benefit of subrule (1). i f th Application of 11. In the applicatirot on of this Order to appeals, so far as may Order to appeals be, the word “ploa p a N intiff ” shall be held to include an appellant, the word “vd . eedfendant” a respondent, and the word “suit” an appeal.ers re hts Application 12. lR rigules 3, 4 and 8 shall not apply to proceedings in execution of Order to . A l proceedings in oiaf a decree or order. n execution of za decree or ord Teran of ORDER XXIII nt me WITHDRAWAL AND ADJUSTMENT OF SUITS rn ov e 5 GWithdrawal 1.–(1) At any time after the institution of a suit the plaintiff 02 of suit or 2 abandonment of may, as against all or any of the defendants, withdraw his suit © part of claim or abandon part of his claim. (2) Where the court is satisfied- (a) that a suit must fail by reason of some formal defect; or 171 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw . from such suit or abandon such part of a claim with OAG liberty to institute a fresh suit in respect of the subject f ion o matter of such suit or such part of a claim. iss (3) Where the plaintiff withdraws from a suit, or abanedrmons part of a claim, without the permission referred to ino p ustu brule (2), he shall be liable for such costs as the court mayw aitw h ard and shall be precluded from instituting any fresh suiute i dn respect of such subject matter or such part of the claim. ib dis tr (4) This rule shall not be deemed to oar uthorise the court to permit one of several plaintiffs to weduc ithdraw without the consent of the others. pro d e r e Limitation law 2. In any fresh suit institutedy obn permission granted under not affected by a fresh suit rule 1, the plaintiff shall bek bmo ound by the law of limitation in the same manner as if ths eb o i first suit had not been instituted. f th Compromise of 3. Where it is provaertd o to the satisfaction of the court that a suit suit p has been adjus tNeod wholly or in part by any lawful agreement . or compromrvei dse, or where the defendant satisfies the plaintiff in respec e rets of the whole or any part of the subject matter of the sughi tts, the court shall order such agreement, compromise l rior Alsatisfaction to be recorded, and shall pass a decree in naiac . cordance therewith so far as it relates to the suit. a an z Proceedin T gosf 4. This Order shall not apply to any proceedings in execution in execuntiton of decreees not of a decree or order. m avffee rcnted Go 5 ORDER XXIV 2 ©20 PAYMENT INTO COURT Deposit by 1. The defendant in any suit to recover a debt or damages may, defendant of amount in at any stage of the suit, deposit in court such sum of money as satisfaction of he considers a satisfaction in full of the claim. claim 172 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Notice of deposit 2. Notice of the deposit shall be given through the court by the defendant to the plaintiff, and the amount of the deposit shall, unless the court otherwise directs, be paid to the plaintiff on his application. . AG Interest on 3. Interest shall not be allowed to the plaintiff on any sum f O deposit not deposited by the defendant from the date of the receipt of suchio n o allowed to notice, whether the sum deposited is in full satisfaction of mti ss plaintiff after er he notice claim or falls short thereof. t p tho u i Procedure where 4.–(1) Where the plaintiff accepts such amount atesd swatisfaction plaintiff accepts deposit as in part only of his claim, he may prosecute ibu st rhis suit for the i satisfaction in full balance, and, if the court decides that otrh de deposit by the or in part defendant was a full satisfaction of th d ce plaintiff ’s claim, the plaintiff shall pay the costs of the suitr oidn ucurred after the deposit and the costs incurred previous tree hpereto, so far as they were caused by excess in the plaintiaffy ’ bs claim. (2) Where the plaintiff aokc c mepts such amount as satisfaction in full of his claim, he shbo is all present to the court a statement to that effect and such s otfa thtement shall be filed and the court shall pronounce judgmearp nt t accordingly and, in directing by whom the costs of ea.c Nh o party are to be paid, the court shall consider which of the epdrv arties is most to blame for the litigation. se ts re h ORDER XXV ll r ig . A SECURITY FOR COSTS nia za When securi tTya n 1.–(1) Where, at any stage of a suit, it appears to the court that for costs mt oa fy be requiredn from a sole plaintiff is, or, when there are more than one plaintiffs, e plairnntmiff that all the plaintiffs are residing out of Tanzania, and that e ov such plaintiff does not, or that no one of such plaintiffs does, G 25 possess any sufficient immovable property within Tanzania 0 ©2 other than the property in suit, the court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant. 173 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) Whoever leaves Tanzania under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of Tanzania within the meaning of subrule (1). AG. of O Effect of failure to 2.–(1) In the event of such security not being furnished within n io furnish security s the time fixed, the court shall make an order dismissminisr g the suit unless the plaintiff or plaintiffs are permi pe utt ed to withdraw therefrom. thoi (2) Where a suit is dismissed under this rulet,e dt whe plaintiff may apply for an order to set the dismissal atrsibi ude and, if it is proved to the satisfaction of the court thart dh ise was prevented by any sufficient cause from furnishing thd ce eo security within the time allowed, the court shall set asidreod t uhe dismissal upon such terms as to security, costs or other rwe pise as it thinks fit and shall appoint a day for proceeding wyi bth e the suit. (3) The dismissal shall nok tm b ae set aside unless notice of such application has been serv beod o on the defendant. s f th i rt o ORDER XXVI o p a . N COMMISSIONS d erv e re s Commissions to Examine Witnesses hts Cases in which 1. A g ll rni y court may in any suit issue a commission for the court may issue A commission to eiax. amination on interrogatories or otherwise of any person n examine witnesnsz a resident within the local limits of its jurisdiction who is f T a o exempted under this Code from attending the court or who is, en t from sickness or infirmity, unable to attend it. ern m GoOvrder for 2. An order for the issue of a commission for the examination 02 5 commission of a witness may be made by the court either of its own motion ©2 or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined. 174 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Where witness 3. A commission for the examination of a person who resides resides within court’s within the local limits of the jurisdiction of the court issuing jurisdiction the same may be issued to any person whom the court thinks fit to execute it. . AG Persons for whose 4.–(1) Any court may in any suit issue a commission for the of O examination on court may issue examination of- i ss commission (a) any person resident beyond the local limit i esr m of its jurisdiction; p ou t (b) any person who is about to leave such limits ith w before the date on which he is required to be examinueted d in court; or (c) any civil or military officer of the Gistor ibvernment who cannot, in the opinion of the coour d rt, attend without detriment to the public service. ed uc (2) Such commission may be issuperod d to any court, other than the High Court, within the locale rl eimits of whose jurisdiction such person resides, or to any ayd ba vocate or other person whom the court issuing the commki o smsion may appoint. (3) The court on issius bin o g any commission under this rule shall direct whether th otfhe commission shall be returned to itself or to any subordi npa rtte court. . N o Commission 5. Where anrvye d court to which application is made for the issue or request to se examine witness of a com remission for the examination of a person residing at not within any piglha tsce not within Tanzania is satisfied that the evidence of Tanzania suclhl r A person is necessary, the court may issue such commission oiar.an a letter of request. an z Court to exafm T o ine 6. Every court receiving a commission for the examination of witness pnute rsuant to co mmission any person shall examine him or cause him to be examined ve rn pursuant thereto. o G 25 20 Return of 7. Where a commission has been duly executed, it shall be © commission with depositions of returned, together with the evidence taken under it, to the witnesses court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order, and the 175 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] commission and the return thereto and the evidence taken under it shall subject to the provisions of rule 8 form part of the record of the suit. When depositions 8. Evidence taken under a commission shall not be read as G. may be read in A evidence evidence in the suit without the consent of the party against f O o whom the same is offered unless- sio n s (a) the person who gave the evidence is beyond mtier he jurisdiction of the court, or dead or unable from sitc pou kness or infirmity to attend to be personally examith w ined, or exempted from personal appearance inu tceo d urt, or is a civil or military officer of the Governmistre ibnt who cannot, in the opinion of the court, attend w d orithout detriment to the public service; or d uc e (b) the court in its discretion dpirsop denses with the proof of any of the circumstancesb em reentioned in paragraph (a), and authorises the evmiad ye nce of any person being read as evidence in th k oeo suit, notwithstanding proof that the cause for tahkisi nb g such evidence by commission has t ceased at thert ot fi me of reading the same. o p a Cd.o Nmmissions for Local Investigations e erv Commissions 9. In ans yr e ssuit in which the court deems a local investigation to make local ht investigation to berig requisite or proper for the purpose of elucidating any m ll . aAtter in dispute or of ascertaining the market value of any za npiaroperty or the amount of any mesne profits or damages or Tan annual net profits, the court may issue a commission to such ofnt person as it thinks fit directing him to make such investigation e rnm and to report thereon to the court. ov e 5 G2 Procedure of 10.–(1) The commissioner, after such local inspection as he 0 commissioner ©2 and evidential deems necessary and after reducing to writing the evidence status of report taken by him, shall return such evidence, together with his and deposition in suit report in writing signed by him, to court. (2) The report of the commissioner and the evidence taken by him, but not the evidence without the report, shall be 176 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] evidence in the suit and shall form part of the record, but the court or, with the permission of the court, any of the parties to the suit, may examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which . AG he has made the investigation. of O (3) Where the court is for any reason dissatisfied with thseio n proceedings of the commissioner, it may direct such furrtmh iser inquiry to be made as it shall think fit. t p e tho u wi Commissions to Examine Accounts ute d trib Commissions to 11. In any suit in which an examinationr do isr adjustment of examine or adjust d o accounts accounts is necessary, the court may issucee a commission to such person as it thinks fit directing him t u rood make such examination or adjustment. ep e r ay b Court to give 12.–(1) The court shall furkn mish the commissioner with such commissioner necessary part of the proceeding o sbo and such instructions as appear instructions and necessary, and the ins is ft trhuctions shall distinctly specify whether evidential status of proceedings the commissioner airst omerely to transmit the proceedings which and report he may hold on N ot hpe inquiry, or also to report his own opinion on the poinrtv er de.ferred for his examination. (2) Th e rees proceedings and report, if any, of the commissioner shall bhets evidence in the suit, but where the court has reason to be dll iris gsatisfied with them, it may direct such further inquiry as ni A iat. shall think fit. za an of T Commissions to Make Partitions en t Coemrnm mission to 13. Where a preliminary decree for partition has been passed, Gomvake partition of immovable the court may issue a commission to such person as it thinks 02 5 property fit to make the partition or separation according to the rights ©2 as declared in such decree. Procedure of 14.–(1) The commissioner shall, after such inquiry as may be commissioner necessary, divide the property into as many shares as may be directed by the order under which the commission was issued 177 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] and shall allot such shares to the parties and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalising the value of the shares. (2) The commissioner shall then prepare and sign a report or the commissioner, where the commission was issued to G. A more than one person and they cannot agree, shall prepare and of O sign separate reports appointing the share of each party andio nss distinguishing each share, if so directed by the said ordeerrm, iby metes and bounds and such report or reports shall be aunt n p exed to the commission and transmitted to the court, andw itthhoe court, after hearing any objections which the parties mayd m ake to the report or reports, shall confirm, vary or set asidibeu te str the same. (3) Where the court confirms or varies tohr dei report or reports it shall pass a decree in accordance withc tehd e same as confirmed or varied, but where the court sets as u riodde the report or reports it shall either issue a new commisseio r enp or make such other order as it shall think fit. b may ok Ge o s nberal Provisions f th i Expenses of 15. Before issuing aarnt oy commission under this Order, the court commission to be paid into court may order sucho sp N um, if any, as it thinks reasonable for the expenses of . vtehd e commission to be, within a time to be fixed, paid intore sc eor urt by the party at whose instance or for whose benefihtt st he commission is issued. ll r ig Powers of 1 A ia6. . Any commissioner appointed under this Order may, unless commissioners an nz otherwise directed by the order of appointment- Ta of (a) examine the parties themselves and any witness whom t en they or any of them may produce and any other person m ern whom the commissioner thinks proper to call upon to ov G give evidence in the matter referred to him; 02 5 2 (b) call for and examine documents and other things © relevant to the subject of inquiry; (c) at any reasonable time enter upon or into any land or building mentioned in the order. 178 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Attendance and 17.–(1) The provisions of this Code relating to the summoning, examination of witnesses before attendance and examination of witnesses, shall apply to persons commissioner required to give evidence or to produce documents under this order whether the commission in execution of which they . are so required has been issued by a court situate within, or G OA by a court situate beyond, the limits of Tanzania, and for the of n purposes of this rule the commissioner shall be deemed to ibsse io a civil court. rm pe (2) A  commissioner may apply to any court, oth t oeur than the High Court, within the local limits of whose juirth w isdiction a witness resides for the issue of any process wuteh dich he may find it necessary to issue to or against such rib iwst itness and such court may, in its discretion, issue such pr oorc dess as it considers reasonable and proper. ed du c ro Parties to 18.–(1) Where a commission is ei sr espued under this Order, the appear before commissioner court shall direct that the partiey sba to the suit shall appear before the commissioner in perso onk mor by their agents or advocates. (2) Where all or any bo is of the parties do not so appear, the commissioner may p orf othceed in their absence. pa rt . N o ORDER XXVII d SUITS sB e ervY OR AGAINST MILITARY PERSONNEL e ts r Officers or 1.–( 1rig) h Where any officer or soldier serving the Government in soldiers who All cannot obtain aa .m ilitary capacity is a party to a suit and cannot obtain leave i leave may za nof absence for the purpose of prosecuting or defending the suit authorise any an person to sufe T or in person, he may authorise any person to sue or defend in defend fonrt othem his stead. e rnm (2) The authority shall be in writing and shall be signed by ov e the officer or soldier in the presence of- G 25 (a) his commanding officer, or the next subordinate officer, ©20 if the party is himself the commanding officer; or (b) where the officer or soldier is serving in military staff employment, the head or other superior officer of the officer in which he is employed, such commanding 179 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] or other officer shall countersign the authority, which shall be filed in court. (3) When so filed, the countersignature shall be sufficient proof that the authority was duly executed and that the officer or soldier by whom it was granted could not obtain leave of . AG absence for the purpose of prosecuting or defending the suit of O in person. n sio Explanation: In this Order, the expression “comman is edrming officer” means the officer in actual commandu tf por the time being of any regiment, corps, detawcith homent or depot to which the officer or soldier beteldo ngs. ibur Person so 2. A person authorised by an officer or sold dieisr t r to prosecute or authorised may act personally or defend a suit in his stead may prosecute od roe defend it in person appoint advocate in the same manner as the officer or soo c dludier could do if present, or he may appoint an advocate to rpep rrosecute or defend the suit on behalf of such officer or sold ibeer. may Service on person 3. Processes served upon aonkbo y person authorised by an officer authorised, or on his advocate, to or soldier under rule th1 is or upon any advocate appointed as be good service aforesaid by such p f rt eorson shall be as effectual as if they had been served on toh pe a party in person. . Nd erv e ORDER XXVIII s r es ghStUITS BY OR AGAINST CORPORATIONS i ll r Subscription and n1.. Aia In suits by or against a corporation, any pleading may verification of a pleading nz be signed and verified on behalf of the corporation by the f T a o secretary or by any director or other principal officer of the nte corporation who is able to depose to the facts of the case. rnme GoSvervice on 2. Subject to any written law regulating service of process, 25 corporation 0 where the suit is against a corporation, the summons may ©2 be served- (a) on the secretary, or on any director, or other principal officer of the corporation; or (b) by leaving it or sending it by post addressed to the corporation at the registered office or, if there is no 180 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] registered office, then at the place where the corporation carries on business. Power to 3. The court may, at any stage of the suit, require the personal require personal attendance appearance of the secretary or of any director, or other principal AG. of officer of officer of the corporation who may be able to answer material of O corporation questions relating to the suit. ion ss erm i ORDER XXIX ut p ho SUITS BY OR AGAINST FIRMS AND PE it dR wSONS CARRYING ON BUSINESS IN NAMESut eOTHER THAN THEIR OWN str ib dir d o Suing of partners 1.–(1) Any two or more persons cladim ceu ing or being liable as in name of firm partners and carrying on businessre pin ro Tanzania may sue or be sued in the name of the firm,y ibf e any, of which such persons were partners at the time of t hm ae accruing of the cause of action, k and any party to a suit m a o byo in such case apply to the court for a statement of the nametsh isf and addresses of the person who were, at the time of the o aartccruing of the cause of action partners in such firm to beN ofu prnished and verified in such manner as the court may dirde. ve ct. (2) Wehsee rre persons sue or are sued as partners in the name of thehitrs rfirm under subrule (1), it shall, in the case of any plea g ll dri ing or other document required by or under this Code to biae. A signed, verified or certified by the plaintiff or the defendant, za n n suffice if such pleading or other document is signed, verified or Ta of certified by any one of such persons. en t Disrcnlomsure of 2.–(1) Where a suit is instituted by partners in the name of opva ertners’ names G their firm, the plaintiffs or their advocate shall, on demand in 5 02 writing by or on behalf of any defendant, forthwith declare in ©2 writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. 181 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) Where the plaintiffs or their advocate fail to comply with any demand made under subrule (1), all proceeding in the suit may, upon an application for that purpose, be stayed upon such terms as the court may direct. (3) Where the names of the partners are declared in the AG. manner referred to in subrule (1), the suit shall proceed in the f O o same manner, and the same consequences in all respects shaslilo n follow, as if they had been named as plaintiffs in the plaintr:m is Provided that, all the proceedings shall never e ut h p eless continue in the name of the firm. ith o d wte Service 3. Where persons are sued as partners in thterib uname of their firm, the summons shall be served either- disr (a) upon any one or more of the parcetdn oers; or (b) at the principal place at which u ro dthe partnership business is carried on, upon any p erer pson having, at the time of service, the control or my b e a anagement of the partnership business there, m ok as the court may direcst b, oand such service shall be deemed good service upon thfe tho fii rm so sued, whether all or any of the partners are withinar t p or outside of Tanzania: Provided th aNto, in the case of a partnership which has been dissolved to tehd . rv e knowledge of the plaintiff before the institution of the sureist e, the summons shall be served upon every person withinh tTs anzania whom it is sought to make liable. rigll Right of suit on 4 ia..– A(1) Notwithstanding anything contained in section 45 of death of partner an Cap. 345 nz the Law of Contract Act, where two or more persons may sue Ta of or be sued in the name of a firm under the foregoing provisions nt e and any of such persons dies, whether before the institution rnme or during the pendency of any suit, it shall not be necessary ov G to join the legal representative of the deceased as a party to 5 20 2 the suit. © (2) Subrule (1) shall not limit or otherwise affect any right which the legal representative of the deceased may have- (a) to apply to be made a party to the suit; or (b) to enforce any claim against the survivor or survivors. 182 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Notice, in what 5. Where a summons is issued to a firm and is served in the capacity served manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person . having the control or management of the partnership business, AG O or in both characters and, in default of such notice, the person n o f served shall be deemed to be served as a partner. io iss erm Appearance of 6. Where persons are sued as partners in the name oou tf p their partners firm, they shall appear individually in their own nwith ames, but all subsequent proceedings shall, nevertheless, cotendu tinue in the name of the firm. ib dis tr or No appearance 7. Where a summons is served in the ce dmanner provided by except by partners rule 3 upon a person having the contrdouro l or management of the partnership business, no appearaen p rcee by him shall be necessary unless he is a partner of the firmy ba  sued. ok m Appearance 8. Any person served wsi bt oh summons as a partner under rule under protest i 3 may appear underf thprotest, denying that he is a partner, but such appearaanrt o p c e shall not preclude the plaintiff from otherwise serv. Nin o g a summons on the firm and obtaining a decree agaeidrv nst the firm in default of appearance where no partner hase re s appeared. ts igh Suits between 9. r AThll is Order shall apply to suits between a firm and one or co-partners nmia . ore of the partners therein and to suits between firms having a an z one or more partners in common, but no execution shall be T t o f issued in such suits except by leave of the court, and, on an n me application for leave to issue such execution, all such accounts ernv and inquiries may be directed to be taken and made and 5 G o directions given as may be just. 2 ©20 Suit against 10. A  person carrying on business in a name or style other person carrying on business in than his own name, may be sued in such name or style as if name other than it were a firm name, and, so far as the nature of the case will his own permit, all rules under this Order shall apply. 183 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER XXX SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS G. Representation of 1. In all suits concerning property vested in a trustee, executor f O A beneficiaries in suits concerning or administrator, where the contention is between the personsio n o property vested in beneficially interested in such property and a third person, tihsse trustees, etc m trustee, executor or administrator shall represent the pte pr esrons so interested, and it shall not ordinarily be necessariyth ot uo make them parties to the suit, but the court may, if it thiend kws fit, order them or any of them to be made parties. ut str ib di Joinder of 2. Where there are several trustees, executdo or rs or administrators, trustees, executors and they shall all be made parties to a sduui cte against one or more o administrators of them: r rep Provided that, the executor sb e who have not proved their testator’s will, and trustees y m, a executors and administrators outside Tanzania, need nbo k oto be made parties. is f th rt o ORDER XXXI a SUITSN Bo pY OR AGAINST MINORS AND Ped . rv ERSONS OF UNSOUND MIND res e Minor to sue by 1. Ev ts gehry suit by a minor shall be instituted in his name by next friend a pAlel rrison who in such suit shall be called the next friend of tiah. n e minor. za Tan Where sui to ifs 2.–(1) Where a suit is instituted by or on behalf of a minor instituteend t without next friend, plaint without a next friend, the defendant may apply to have the m to rn v ebe taken off file plaint taken off the file with costs to be paid by the advocate or 5 G o other person by whom it was presented. 022 (2) Notice of such application shall be given to such person © and the court, after hearing his objections, if any, may make such order in the matter as it thinks fit. 184 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Guardian for suit 3.–(1) Where the defendant is a minor, the court, on being to be appointed by court for satisfied of the fact of his minority, shall appoint a proper minor defendant person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf . AG of the minor or by the plaintiff. of O (3) The application shall be supported by an affidav io sist n verifying the fact that the proposed guardian has no inteermrei st in the matters in controversy in the suit adverse to thautt pof the minor and that he is a fit person to be so appointedw. o ith (4) An order shall not be made on any applicda te tion under this rule except upon notice to the minor andst rt ibou any guardian of the minor appointed or declared by an aour dtihority competent in that behalf or, where there is no such gdu ce ardian, upon notice to the father or other natural guardiraond u of the minor or, where there is no father or other naturea rl e pguardian, to the person in whose care the minor is, and aaftye br hearing any objection which may be urged on behalf of ank ym person served with notice under this subrule. oo s b (5) A person appoifntht i ed under this rule to be a guardian for a suit shall, unless haisrt oappointment is terminated by retirement, removal or dea Ntho ,p continue as such for the purposes of all the proceedings d v ear. ising out of the suit including proceedings in execution r res oe f a decree. hts Who may act 4.–( g l 1ri) A  person who is of sound mind and has attained as next friend . A l or be appointed mia ajority may act as next friend of a minor or as his guardian n guardian for sui a ntz for the suit, provided that the interest of such person is not Ta of adverse to that of the minor and that he is not, in the case of t en a next friend, a defendant, or, in the case of a guardian for the ern m suit, a plaintiff. ov (2) Where a minor has a guardian appointed or declared 25 G 20 by a competent authority, no person other than such guardian © shall act as the next friend of the minor or be appointed his guardian for the suit unless the court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed. 185 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) A  person shall not without his consent be appointed guardian for the suit. (4) Where there is no other person fit and willing to act as guardian for the suit, the court may appoint any of its officers to be such guardian and may direct that the costs to G. A be incurred by such officer in the performance of his duties f O o as such guardian shall be borne either by the parties or by an n syio one or more of the parties to the suit, or out of any funrd ism in court in which the minor is interested, and may give diruet c petions for the repayment or allowance of such costs as justicitheo and the circumstances of the case may require. d w ute trib Representation 5.–(1) Every application to the court on bdeis half of a minor, of minor by r next friend or other than an application under rule 10e,d soubrule (2), shall be c guardian for suit made by his next friend or by his gua u rorddian for the suit. (2) Every order made in a suit orer p on any application before the court in or by which a myi bn eor is in any way concerned or affected, without such mk imn aor being represented by a next friend or guardian for th o beo suit, may be discharged and, where the advocate of the pf tahr isty at whose instance such order was obtained knew, ora rmt oight reasonably have known, the fact of such minority, wNoi pth costs to be paid by such advocate. d. rveReceipt by 6.–(1) A nsext friend or guardian for the suit shall not, without next friend or guardian for suit the leatvs er e of the court, receive any money or other movable h of property under propl reigrty on behalf of a minor either- decree for minor Al ia. (a) by way of compromise before decree or order; or an nz (b) under a decree or order in favour of the minor. f T a (2) Where the next friend or guardian for the suit has o en t not been appointed or declared by competent authority to m ern be guardian of the property of the minor or, having been so ov appointed or declared, is under any disability known to the 5 G 02 court to receive the money or other movable property, the ©2 court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application. 186 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Agreement or 7.–(1) A next friend or guardian for the suit shall not, without compromise by next friend or the leave of the court expressly recorded in the proceedings, guardian for suit enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend . or guardian. AG (2) Any such agreement or compromise entered into f O n o without the leave of the court so recorded shall be voidabislse io against all parties other than the minor. rm t p e 8.–(1) Unless otherwise ordered by the court, a nethxo u Retirement of i t friend next friend w shall not retire without first procuring a fit pers ute odn to be put in his place and giving security for the costs altribs eady incurred. (2) The application for the appointm di oer nt of a new next friend shall be supported by an affidavit d c esh owing the fitness of the person proposed, and also that h u roed has no interest adverse to that of the minor. ep be r y Removal of next 9.–(1) Where the interest ko a mf the next friend of a minor is friend adverse to that of the msi nb ooor or where he is so connected with a defendant whose inf the irest is adverse to that of the minor as o to make it unlikeplay r t that the minor’s interest will be properly protected by himo . N , or where he does not do his duty, or during the pendenrcvey d of the suit, ceases to reside within Tanzania or for any rotsee her sufficient cause, application may be made on behailgfh o tsf the minor or by a defendant for his removal, and the co r Aullrt, if satisfied of the sufficiency of the cause assigned, may ia. za norder the next friend to be removed accordingly and make an such other order as to costs as it thinks fit. T t o f (2) Where the next friend is not a guardian appointed enm or declared by an authority competent in this behalf and an rn ov e application is made by a guardian so appointed or declared, 5 G who desires to be himself appointed in the place of the 2 20 next friend, the court shall remove the next friend unless it © considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor, and shall thereupon appoint the applicant to be next friend in his 187 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] place upon such terms as to the costs already incurred in the suit as it thinks fit. Stay of 10.–(1) On the retirement, removal or death of the next proceedings on removal, etc., of friend of a minor, further proceedings shall be stayed until the G. A next friend appointment of a next friend in his place. O of (2) Where the advocate of such minor omits, withisnio n a reasonable time, to take steps to get a new next frienisrm d appointed, any person interested in the minor or in the pe u tm atter in issue may apply to the court for the appointment oifth oo ne, and the court may appoint such person as it thinks fit w ute .d trib Retirement, 11.–(1) Where the guardian for the suit rd de issires to retire or removal or death of guardian for does not do his duty, or for any other suffi o edcient cause, the court suit may permit such guardian to retire odru c o may remove him, and r may make such order as to costs arse p it thinks fit. (2) Where the guardian for thy eb e suit retires, dies or is removed by the court during the penk md aency of the suit, the court shall appoint a new guardian ibno ohis place. thi s f Course to be 12.–(1) A minor p o alrtaintiff or a minor not a party to a suit on followed by minor plaintiff whose behalf ano papplication is pending shall, on attaining N or applicant on majority, elec . edt whether he will proceed with the applicant suit attaining majority or applicateiorv re s n. (2) hWts here he elects to proceed with the suit or application, he sll hri gall apply for an order discharging the next friend and for liae.a Ave to proceed in his own name. an nz (3) The title of the suit or application shall in such case be Ta f corrected so as to read henceforth thus- t o en “A.B., late a minor, by C.D., his next friend, but now having ern m attained majority”. v G o (4) Where he elects to abandon the suit or application he 250 shall, if a sole plaintiff or sole applicant, apply for an order ©2 to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend. 188 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (5) An application under this rule may be made ex parte, but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend. G. A Where minor co- 13.–(1) Where a minor co-plaintiff on attaining majority f O plaintiff attaining o majority desires desires to repudiate the suit, he shall apply to have his nameio ns to repudiate suit struck out as co-plaintiff, and the court, if it finds that h s rme i is not a necessary party, shall dismiss him from the suit outn p esuch terms as to costs or otherwise as it thinks fit. o with (2) Notice of the application shall be served ond te the friend, on any co-plaintiff and on the defendant. u trib (3) The costs of all parties of such appli is orc dation and of all or any proceedings theretofore had in the ce dsuit, shall be paid by such persons as the court directs. u rod (4) Where the applicant is a ne rce pessary party to the suit the court may direct him to be ma be ady e a defendant. k m Unreasonable or 14.–(1) A minor on atta ibno oing majority may, if a sole plaintiff, improper suit apply that a suit instif ttuh isted in his name by his next friend be dismissed on the garrot ound that it was unreasonable or improper. (2) Notice o p Nfo the application shall be served on all the parties concveerdn . ed, and the court, upon being satisfied of such unreason er easbleness or impropriety, may grant the application and ohrtds er r the next friend to pay the costs of all parties in resp erigll ct of the application and of anything done in the suit, or m ia.a Ake such other order as it thinks fit. za n n Application o Tf af 15. The provisions contained in rules 1 to 14, so far as they are rules to pet rosons of uns n applicable, shall extend to persons adjudged to be of unsound rnm oeund mind mind and to person who though not so adjudged are found ve Go by the court on inquiry, by reason or unsoundness of mind or 02 5 mental infirmity, to be incapable of protecting their interests ©2 when suing or being sued. 189 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER XXXII SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY G. Parties to suits 1. Subject to the provisions of this Code, all persons having GN. No. f O A 256 of 2005 an interest either in the mortgage, security or in the right of n oio redemption shall be joined as parties to any suit relating issm to the mortgage: pe r t Provided that- u ith o (a) a mortgagee may sue without being joined da ws party to a e suit; and ut rib (b) a prior mortgagee need not be joinedr d i inst a suit to redeem as subsequent mortgage. d o uc e d Preliminary 2. In a suit for redemption, if the plairnept rioff succeeds, the court shall decree in redemption suit pass a decree, referred to in this Ce b ode as “preliminary decree”- GN. No. (a) ordering that an ac cmo auy nt be taken of what will be 256 of 2005 due to the defend ok baont for principal and interest on the mortgage, and thfo isr his costs of the suit, if any, awarded f to him on tahrte o day next hereinafter referred to; or (b) declarinNgo tphe amount so due at the date of such decree; and ed . v (c) direercting- s( ir es ht ) that if the plaintiff pays into court the amount so ig ll r due on a day within six months from the date of A ia. declaring in court the amount so due, to be fixed an nz by the court, the defendant shall deliver up to the Ta f plaintiff, or to such persons as he appoints, all t o en documents in his possession or power relating to rnme the mortgaged property, and shall, if so required, Gov retransfer the property to the plaintiff free from 25 0 the mortgage and from all incumbrances created ©2 by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall, if necessary, put the plaintiff in possession of the property; and 190 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (ii) that, if such payment is not made on or before the day to be fixed by the court, the plaintiff shall, on the passing of a final decree, be debarred from all right to redeem or that the mortgaged property be sold. G. OA of Final decree in 3.–(1) Where, on or before the day fixed, the plaintiff pays into io n redemption suit s and power to court the amount declared due as aforesaid, together with smuis r ch enlarge time subsequent costs as are mentioned in rule 5, the court tp e GN. No. ou shall h 256 of 2005 pass a decree- t wi (a) ordering the defendant to deliver up th ted documents which under the terms of the prelimintraib u s ry decree he is bound to deliver up; i or d (b) where so required, ordering heidc m to retransfer the mortgaged property as direct u reodd in the said decree; and p (c) where necessary orderinge r ehim to put the plaintiff in possession of the propeayr t by. (2) Where such paymeonkt m is not so made, the court shall, on application made in b is t ohat behalf by the defendant, pass a decree that the plain th otf iff and all persons claiming through or under him be deb paar rtred from all right to redeem the mortgaged property and a. lNs oo, if necessary, ordering the plaintiff to put the defendant irnve p d ossession of the property. (3) Ons e re the passing of a decree under subrule (2) the debt secur ts igehd by the mortgage shall be deemed to be discharged. A(ll4 r ) Where such payment is not so made, the court shall, on naiap . plication made in that behalf by the defendant, pass a decree za an that the mortgaged property or a sufficient part thereof be sold f T t o and that the proceeds for the sale, after defraying thereout the n me expenses of the sale, be paid into court and applied in payment ernv of what is found due to the defendant, and that the balance, if Go any, be paid to the plaintiff or other persons entitled to receive 25 20 the same. © (5) The court may, upon good cause shown and upon such terms, if any, as it thinks fit, postpone the day fixed for payment. 191 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Decree where 4. Notwithstanding anything hereinbefore contained, if it nothing is found due or where appears, upon taking the account referred to in rule 2, that, mortgagee has nothing is due to the defendant or that he has been overpaid, been overpaid GN. No. the court shall pass a decree directing the defendant, if so . 256 of 2005 required, to retransfer the property and to pay the plaintiff the OAG amount which may be found due to him, and the plaintiff shall, f n o if necessary, be put in possession of the mortgaged property io i.ss erm Costs of 5. In finally adjusting the amount to be paid to a mourto t pgagee mortgagee subsequent to in case of a redemption, the court shall, unless t hweith conduct decree of the mortgagee has been such as to disentitle thedim to costs, GN. No. u 256 of 2005 add to the mortgage-money such costs of sisutr iibt as have been properly incurred by him since the decre e d o r for redemption up to the time of actual payment. ce d u rod Right of mesne 6. Where property is mortgagee r edp for successive debts to mortgagee to redeem and successive mortgagees, any maye bsne mortgagee may institute foreclose a suit to redeem the intere m oskts of the prior mortgagees and to GN. No. 256 of 2005 foreclose the rights of t bo ihs ose that are posterior to himself and of the mortgagor. of th pa rt Sale of property 7. Where any o Nproperty the sale of which is directed under subject to prior . mortgage this Order ise drv subject to a prior mortgage, the court may, with GN. No. the consres e nt of the prior mortgagee, direct that the property 256 of 2005 be soiglhd ts free from the same, giving to such prior mortgagee the ll sr. A ame interest in the proceeds of the sale as he had in the ia anproperty sold. an z T Applicatio t no fof 8.–(1) The proceeds shall be brought into court and applied in proceedesn GN. Nmo. the following order of priority: rn2v5e6 of 2005 (a) in the payment of all expenses incidental to the sale or Go 5 expenses properly incurred in any attempted sale; 2 ©20 (b) in payment of whatever is due to the prior mortgagee on account of the prior mortgage, and of costs, properly incurred in connection therewith; (c) in payment of all interest due on account of the mortgage in consequence whereof the sale was directed, and of 192 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] the costs of the suit in which the decree directing the sale was made; (d) in payment of the principal money due on account of that mortgage; and . (e) the residue, if any, shall be paid to the person proving G OA himself to be interested in the property sold or, if there n o f are more than one such persons, then to such personssiois according to their respective interests therein or pue rpmon their joint receipt. ut o (2) This rule or rule 7 shall not be deemed to w i tahffect the Cap. 334 powers conferred by section 63 of the Land Registetdration Act. trib u is Suit for 9. In a suit for delivery of possession of o rm d ortgaged land to possession GN. No. the mortgagee by the mortgagor or byu caen dy other person in or 256 of 2005 alleged to be in possession of the prporop d erty, the court may, if it is satisfied that the plaintiff has et hr ee right to such possession, b pass a decree directing the deafye ndant to deliver possession of such property to the plainot m oikff. is b Interpretation 10. References in tohf itsh Order to re-transferring mortgaged GN. No. 256 of 2005 property shall, in p ar ret lation to land registered under the Land Cap. 334 Registration A.c Nt o or in relation to mortgages created otherwise than by trearvn esdfer of the property, be construed as meaning discharg rien sg the mortgage. htsig Mortgages by 11A. llA r ll the provisions contained in this Order which apply to a deposit of title ia. deeds and chargesanmortgage shall, so far as may be, apply to mortgages and liens GN. No. nza by deposit of title deeds and to statutory charges. 256 of 2005 of T t en ORDER XXXIII ern m ov INTERPLEADER 5 G 20 2 © Plaint in 1. In every suit of interpleader, the plaint shall, in addition to interpleader suits other statements necessary for plaints, state- (a) that the plaintiff claims no interest in the subject matter in dispute other than for charges or costs; 193 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) the claims made by the defendants severally; and (c) that there is no collusion between the plaintiff and any of the defendants. Payment of thing 2. Where the thing claimed is capable of being paid into court, G. claimed into A court or placed in the custody of the court, the plaintiff may be O of required to so pay or place it before he can be entitled to ansyios n order in the suit. i pe rm ut Procedure where 3. Where any of the defendants in an interplead o itehr suit is defendant is suing plaintiff actually suing the plaintiff in respect of the subjedc wte t matter of such suit, the court in which the suit againsttri bs tuhe plaintiff is pending shall, on being informed by the c doior urt in which the interpleader suit has been instituted to stda ce y the proceedings as against him, and his costs in the suit s u rod stayed may be provided for in such suit, but if, and in soe fr eapr as, they are provided for in that suit, they may be addaey d b to his costs incurred in the interpleader suit. k m oo is b Procedure at first 4.–(1) At the first heaofr tihng, the court may- hearing (a) declare thaatrp tt he plaintiff is discharged from all liability to the d o . eNfendants in respect of the thing claimed, award himr vhei ds costs, and dismiss him from the suit; or (b) w se rehere it thinks that justice or convenience so requires, htsretain all parties until the final disposal of the suit. ll r ig A(2) Where the court finds that the admissions of the parties ia anor. other evidence enable it to do so, it may adjudicate the title z an to the thing claimed. f T t o (3) Where the admission of the parties does not enable the n me court so to adjudicate, it may direct- ve rn (a) that an issue or issues between the parties be framed o 5 G and tried; and 02 ©2 (b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner. 194 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Agents and 5. This Order shall not be deemed to enable agents to sue their tenants may not institute principals, or tenants to sue their landlords, for the purpose interpleader suits of compelling them to interplead with any persons other than persons making claim through such principals or landlords. AG. Charge for 6. Where the suit is properly instituted the court may provide of O plaintiff ’s costs for the costs of the original plaintiff by giving him a charge ossni o n the thing claimed or in some other effectual way. mi r t p e tho u ORDER XXXIV i d w SPECIAL CASE uteib dis tr Power to state 1.–(1) Parties claiming to be interested, idn o rt he decision of any case for court’s opinion question of fact or law may enter intod au cne agreement in writing stating such question in the form eopf r oa case for the opinion of the court and providing that, upe r b on the finding of the court with respect to such question ay m- (a) a sum of money fix ok boed by the parties or to be determined by the court sh tha isl l be paid by one of the parties to the other of themrt o; f (b) some proop pe arty, movable or immovable, specified in the agreeemd . eNnt, shall be delivered by one of the parties to these or vther of them; or e (c) htso rne or more of the parties shall do, or refrain from doing rigll some other particular act specified in the agreement. ia. A(2) Every case stated under this rule shall be divided into an an z consecutively numbered paragraphs and shall concisely state f T such facts and specify such documents as may be necessary to nt o e enable the court to decide the question raised thereby. ern m oWvhere value of 2. Where the agreement is for the delivery of any property, or 5 Gsubject matter 02 must be stated for the doing, or the refraining from doing, any particular act, ©2 the estimated value of the property to be delivered, or to which the act specified has reference, shall be stated in the agreement. 195 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Agreement to 3.–(1) The agreement, if framed in accordance with the rules be filed and registered as suit hereinbefore contained, may be filed in the court which would have jurisdiction to entertain a suit the amount or value of the subject matter of which is the same as the amount or value of . the subject matter of the agreement. AG (2) The agreement, when so filed, shall be numbered and of O n registered as a suit between one or more of the parties claiminissg io to be interested as plaintiff or plaintiffs, and the other oerr mthe others of them as defendant or defendants and notice t p o suhall be given to all parties to the agreement other than th ith we party or parties by whom it was presented. ute d trib Parties to be 4. Where the agreement has been filed, theo rp daisrties to it shall be subject to court’s jurisdiction subject to the jurisdiction of the court ca end d shall be bound by the statement contained therein. u rod re p Hearing and 5.–(1) The case shall be set down b ey for hearing as a suit instituted disposal of case a in the ordinary manner, ankd m the provisions of this Code shall apply to such suit so far a o s bs o the same are applicable. (2) Where the couf trht i is satisfied, after examination of the parties, or after takairtn og such evidence as it thinks fit- p (a) that the o Nagreement was duly executed by them; . (b) that rtvhe dey have a bona fide interest in the question stated th e eesrein; and (c) hts r g that the case is fit to be decided, it Asllh riall proceed to pronounce judgment thereon in the ns iaa.me way as in an ordinary suit, and upon the judgment so nz a a pronounced a decree shall follow. T nt of me ORDER XXXV ve rn o SUMMARY PROCEDURE 5 G 02 ©2 Application of 1. This Order shall, where the plaintiff desires to proceed in Order GNs. Nos. accordance with the Order, apply to- 363 of 1968 (a) suits upon bills of exchange, including cheques, or 79 of 1970 256 of 2005 promissory notes; (b) suits for the recovery of income tax; and 196 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (c) suits arising out of mortgages, whether legal or equitable, for- (i) payment of monies secured by mortgage; (ii) delivery of possession of the mortgaged property to the mortgagee by the mortgagor or by any G. A other person in or alleged to be in possession of O of the mortgaged property; ion (iii) redemption; or iss erm (iv) retransfer or discharge; ut p (d) suits by the Tanzania Electric Supply Compa tho wniy Limited for the recovery of meter rents, charges uftoe dr the supply of electricity and other charges, in rib isctluding any tax, connected with or incidental to the o sr ud pply of electricity to any consumer; ed uc (e) suits for the recovery of repnrot d, interest or other debts due to the Republic, thee r eGovernment or any local b government authority; y a (f) suits for the recove m oor ky of possession of any immovable property includsi nbhi g any building or other premises where the rig t t oh f t of the person seeking to recover such possessio ar on p is not restricted by the provisions of the Cap. 113 Land N dA. ct, and suit for the recovery of rent, mesne profirvtee s or damages for unlawful occupation in respect es tso rf such immovable property, building or premises; and (lg ri)g h suits for the recovery of possession of any immovable Al a. property from a lessee under a financial lease agreement an i z where under such agreement the lessee has no right of n f T a ownership over the property leased to him. o nt Instrintmuteion of 2.–(1) Suits to which this Order applies shall be instituted by suvemmary suits oGNs. Nos. presenting a plaint in the usual form but endorsed “Order 5 G2 363 of 1968 XXXV: Summary Procedure” and the summons shall inform 20 79 of 1970 © 256 of 2005 the defendant that unless he obtains leave from the court to defend the suit, a decision may be given against him and shall also inform him of the manner in which application may be made for leave to defend. 197 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from the judge or magistrate as hereinafter provided so to appear and defend, and, in default of his obtaining such leave or of his appearance and defence in AG. pursuance thereof, the allegations in the plaint shall be deemed f O o to be admitted, and the plaintiff shall be entitled- ions (a) where the suit is a suit, referred to in paragraphe m(aisr ), (b) or (d) of rule 1 or a suit for the recovery ofu mt poney o under a mortgage and no other relief in write hspect of such mortgage is claimed, to a decreeu tef dor any sum not exceeding the sum mentioned iisntr ibthe summons, together with interest at the rate sopr d ecified, if any, and such sum for costs as may beu cpe drescribed, unless the plaintiff claims more than sruodp ch fixed sum, in which case the costs shall be asbcee rretained in the ordinary way, and such decree may bey a executed forthwith; m (b) where the suit ar oios kes out of a mortgage and is for delivery of pohis sbession, redemption, discharge or transfer to a td oe f tcree in a accordance with the provisions r of Order X pao XXII and other provisions of this Code and such dd.e Ncree may, subject to exercise by the court of suchrv ese powers as it may have, unless it is a preliminary tsd re ecree, be executed forthwith; ( gh lc ri) where the suit is for the recovery of possession of l a. A any immovable property, building or premises or for ni za payment of rent, mesne profits or damages for unlawful an f T occupation of such immovable property, building or o en t premises, rnm to a decree for possession and for payment of rent, mesne ve Go profits or damages as claimed. 5 2 ©20 Defendant 3.–(1) The court shall, upon application by the defendant, give showing defence on merits to have leave to appear and to defend the suit, upon affidavits which- leave to appear (a) disclose such facts as would make it incumbent on the Act No. 17 of 2008 s. 25 holder to prove consideration, where the suit is on a bill of exchange or promissory note; 198 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) disclose such facts as the court may deem sufficient to support the application; or (c) in suits arising out of mortgages, where the mortgagor demonstrates, that- . (i) loan or the portion of the loan claimed is indeed AG discharged; or of O (ii) loan was actually not taken. n ss io (2) Leave to defend may be given unconditionally or suebrmje i ct to such terms as to payment into court, giving security, ofur ta pming and recording issues or otherwise as the court think th wsi fit. (3) For the purpose of paragraph (c) of s uute dbrule (1), a mortgagor or an applicant acting on that behal ib sftr shall be deemed to have complied with or discharged his res pdior onsibility if upon a bank account through which loan wa d uc se given it is shown that loan is fully paid. rod re p e Possession 4.–(1) Where, in a possessioyn b suit against trespassers, the suit against a trespassers plaintiff does not know thek mname of a person in occupation GN. No. or possession of the lan o s bd o, the suit shall be brought against 256 of 2005 ‘persons unknown’ ionf thaiddition to any named defendants. (2) In a possepsas rti on suit against trespassers, the defendant shall be served N ow ith the plaint and any affidavits sworn in support therr . ve dof- (a) inre s ethe case of a dwelling house, not less than five ts gh d ays; and ri A(llb) in the case of other land, not less than two days, nbiae . fore the hearing date. za an (3) In all other possession suits- of T t (a) the hearing date shall be not less than twenty-one days enm from the date of issue of the plaint; and ve rn (b) the defendant shall be served with the plaint and 5 G o any affidavits sworn in support thereof not less than 20 2 © fourteen days before the hearing date. (4) Where, in a possession suit against trespassers, the suit has been issued against ‘persons unknown’ the plaint and any 199 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] affidavits sworn in support thereof shall be served on those persons by- (a) attaching copies of the plaint and any affidavits sworn in support thereof to the main door or some other part . of the land so that they are clearly visible; and AG (b) where practicable, inserting copies of those documents O n o f in a sealed envelope addressed to ‘the occupiersi’ois through the letter box; or ermp (c) placing stakes in the land in places where t t ohu e y are clearly visible and attaching to each stake co ith wpies of the plaint and any affidavits sworn in suppourteb t dthereof in a sealed envelop addressed to ‘the occuipstir iers’. d or Suit for 5.–(1) Subject to Part X of the Land Auc d cet, this rule shall apply possession of land consisting of where a mortgagee seeks possessionpr oo df land which consists of dwelling house or includes a dwelling house. e r e GN. No. b 256 of 2005 (2) Not less than fourteen ay days before the hearing, the Cap. 113 plaintiff shall send a notoikc m o e to the property addressed to the occupiers. is b (3) The notice refefr trh o ed to in paragraph (2) shall- t (a) state that a p ap r ossession suit for the property has started; (b) show dth No . e name and address of the plaintiff, the defernvee dant and the court which issued the plaint; and (c) s sg ri eve details of the place, date and time of the hearing. (4ri) t g h [Omitted]. . A ll Additional an6 ia.–(1) Where the suit is a possession suit by a mortgagee, the requirements fonrz possession suTita by plaint shall also set out- mortgagete o f (a) the state of the mortgage account by including- n me (i) the amount of- rn ov e (aa) the advance; 5 G (bb) any periodic repayment; and 02 ©2 (cc) any payment of interest required to be made; (ii) the amount which would have to be paid, after taking into account any adjustment for early settlement, in order to redeem at a stated date 200 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] not more than fourteen days after the suit started specifying the amount of advocate’s costs and administration charges which would be payable; (iii) the rate of interest payable- (aa) at the commencement of the mortgage; AG. (bb) immediately before any arrears referred to in of O subparagraph (b) accrued; n sio (cc) at the commencement of the proceedingrsm; is e (b) where the suit is brought because of failure to pt apu y the periodic payments when due- o with (i) in schedule form, the dates when the taedr rears arose, all amounts due, the dates ands tr iabumounts of all payments made and a runningr td i o otal of the arrears; (ii) details of- ce d (aa) any other paymentrso dr uequired to be made as a term of the moer rt egpage, such as for insurance premiums, alye bgal costs, default interest, penalties, ka mdministrative or other charges; (bb) any ost hb oeor sums claimed and stating the natu i f trhe and amount of each such charge; and (cc) warht oether any of these payments is in arrears o p N and whether or not it is included in the d. ve amount of any periodic payment; (c) dreest earils of any tenancy entered into between the tsm h ortgagor and mortgagee including any notices ll r ig A served; and ia. n (d) state any previous steps which the plaintiff has taken za an to recover the money secured by the mortgage or T t o f the mortgaged property and, in the case of court men proceedings, state- ernv (i) the dates when the suit started and concluded; and Go 5 (ii) the dates and terms of any orders or decrees made. 02 ©2 Possession 7. In a possession suit against trespassers, the plaint shall suit shall state plaintiff ’s state the plaintiff ’s interest in the land or basis of his right to interest, etc. delivery of possession and the circumstances in which it has GN. No. 256 of 2005 been occupied without licence or consent. 201 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Power to set aside 8. After decree the court may, in exceptional circumstances, set decree GN. No. a side the decree and if necessary, stay or set a side the decree 256 of 2005 and if necessary, stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such AG. O terms as the court thinks fit. n o f sios Power to order 9. In any proceeding under this Order, the court may oer i rmder bill, etc., to be deposited with the bill or note on which the suit is founded to be fo p our tt hwith officer of court deposited with an officer of the court and may fu it rwth her order GN. No. 256 of 2005 that all proceedings shall be stayed until the uptel daintiff gives security for the costs thereof. rib di st or Recovery of cost 10. The holder of every dishonouredce dbill of exchange or of noting non- acceptance of promissory note shall have the samer orde umedies for the recovery dishonoured bill of the expenses incurred in notinge tr ehpe same for non-acceptance or note GN. No. or non-payment, or otherwise b a, yby reason of such dishonour, as 256 of 2005 he has under this Order foro kt h me recovery of the amount of such bill or note. bos thi of Procedure in suits 11. Save as provid rt pead by this Order, the procedure in suits under GN. No. 256 of 2005 this order shal.l Nb oe the same as the procedure in suits instituted in the ordinrvaer dy manner. res e ts gh ORDER XXXVI All r i a. ARREST AND ATTACHMENT ni za BEFORE JUDGMENT an of T en t Arrest before Judgment W rnm vehere defendant 1. Where at any stage of a suit, other than a suit of the nature Gomay be called 5 upon to furnish referred to in paragraphs (a) to (d) of section 17, the court is 20 2 security for satisfied, by affidavit or otherwise- © appearance (a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the court or to obstruct or 202 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] delay the execution of any decree that may be passed against him- (i) has absconded or left the local limits of the jurisdiction of the court; (ii) is about to abscond or leave the local limits of the . AG jurisdiction of the court; or O of (iii) has disposed of or removed from the local limitssio n of the jurisdiction of the court his property oerr ma insy part thereof; or p ut (b) that the defendant is about to leave Tanzawnithioa under circumstances affording reasonable probuatbe di lity that the plaintiff will or may thereby be obstruicsttre ibd or delayed in the execution of any decree that m oary d be passed against the defendant in the suit, the couceu rdt may issue a warrant to arrest the defendant and brrodp ing him before the court to show cause why he sheo ru eld not furnish security for b his appearance: y a Provided that, the defoeon k mdant shall not be arrested if he pays to the officer entru b iss ted with the execution of the warrant any sum specified inof th the warrant as sufficient to satisfy the plaintiff ’s claim, anardt p such sum shall be held in deposit by the court until the. Ns ouit is disposed of or until the further order of the court. d erv e re s Request for arrest 2.–(1g)h A ts  court which has issued a warrant of arrest under rule by telegram i 1 olfl A r this Order may, by telegram, request any district court nwia .ithin the area of whose jurisdiction the defendant is believed nz a a to be, to arrest him and cause him to be taken under escort to of T t the court which issued the warrant. n me (2) A  telegram sent under the provisions of subrule (1) rn ve shall state- o 5 G (a) the number and title of the case; 02 ©2 (b) the full name of the defendant and the place where he is believed to be; (c) the amount of money upon payment of which the defendant may be released; 203 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (d) that the person applying for arrest has given security for the expenses of and the transport of the defendant and his escort to the court which issued the warrant; and (e) the date when the warrant of arrest was issued. . (3) On receipt of a telegram sent in accordance with the AG provisions of this rule, the court to which it is addressed shall of O issue a provisional warrant in accordance with the particulasrssi o n contained in the telegram and shall cause the sameerm ito be executed. ut p ith o Security 3.–(1) Where the defendant fails to show such cautesde w under rule 1 the court shall order him either to deposit instr icbou urt money or other property sufficient to answer the cloari dmi against him, or to furnish security for his appearance a d cte any time when called upon while the suit is pending and u ro duntil satisfaction of any decree that may be passed againsretp be him in the suit, or make such order as it thinks fit in reagyard to the sum which may have been paid by the defendant ku mo nder the proviso to rule 1. (2) Every surety foris tbh o e appearance of a defendant shall bind himself, in defa ouf ltht of such appearance, to pay any sum of money which the rt pdaefendant may be ordered to pay in the suit. o . N Procedure on 4.–(1) A su d rrvety for the appearance of a defendant may at any application by surety to be time apprleys e to the court in which he became such surety to be discharged dischahrtsged from his obligation. (ll2 ri g A ) On such application being made, the court shall summon . ntiahe defendant to appear or, if it thinks fit, may issue a warrant za an for his arrest in the first instance. T of (3) On the appearance of the defendant in pursuance of the nte summons or warrant, or on his voluntary surrender, the court rnm ve shall direct the surety to be discharged from his obligation and o G shall call upon the defendant to find fresh security. 250 ©2 Procedure where 5. Where the defendant fails to comply with any order under defendant fails to furnish security rule 3 or rule 4, the court may commit him as a civil prisoner or find fresh until the decision of the suit or, where a decree is passed against security the defendant, until the decree has been satisfied: 204 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Provided that, no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject matter of the suit does not exceed one hundred and fifty shillings: . OAG Provided further that, no person shall be detained in prison of under this rule after he has complied with such order. n iss io erm Attachment before Judgment ut p ith o w Where defendant 6.–(1) Where, at any stage of a suit, the court isd e satisfied by may be called bu t upon to furnish affidavit or otherwise, that the defendant, triwith intent to security for obstruct or delay the execution of any de dcisr ree that may be production of o property passed against him- ce d (a) is about to dispose of the wrodh uole or any part of his property; or re p e (b) is about to remove the wy hba ole or any part of his property from the local limitosk o mf the jurisdiction of the court, the court may direct ist hb oe defendant, within a time to be fixed by it, either to off u thrnish security, in such sum as may be specified in the or pad rter, to produce and place at the disposal of the court, whe.n N or equired, the said property or the value of the same, or survceh d portion thereof as may be sufficient to satisfy the decrreees e, or to appear and show cause why he should not furnigs i hhts security. A(ll2 r) The plaintiff shall, unless the court otherwise directs, nsiap . ecify the property required to be attached and the estimated za an value thereof. T of (3) The court may also in the order direct the conditional en t attachment of the whole or any portion of the property rnme so specified. v 5 G o 02 Attachment 7.–(1) Where the defendant fails to show cause why he should ©2 where cause not shown or security not furnish security, or fails to furnish the security required, not furnished within the time fixed by the court, the court may order that the property specified or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. 205 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) Where the defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached, the court shall order the attachment to be withdrawn, or make such other order as it thinks fit. AG. Mode of making 8. Save as otherwise expressly provided, the attachment shall O attachment of be made in the manner provided for the attachment of the sio n property in execution of a decree. mis er t p Investigation of 9. Where any claim is preferred to property attache u hdo before claim to property it attached before judgment, such claim shall be investigated in edt hwe manner judgment hereinbefore provided for the investigationrib utof claims to t property attached in execution of a decre is r ed for the payment of money. d oe du c Removal of 10. Where an order is made for at ro retpachment before judgment, attachment when security the court shall order the attacyh bm e ent to be withdrawn when furnished or suit the defendant furnishes thke msaecurity required, together with dismissed security for the costs o o bf othe attachment, or when the suit is dismissed. hisf t rt o Attachment 11. Attachment o bp aefore judgment shall not affect the rights, before judgment not to affect existing priord .t o N the attachment, of persons not parties to the e rights of strangers suit, nor baerrvs any person holding a decree against the defendant nor bar decree- re holder from from aptsp lying for the sale of the property under attachment in h applying for sale exelcl rui gtion of such decree. A ia. Property za n12. Where property is under attachment by virtue of the attached beforea n judgment no tT to provisions of this Order and a decree is subsequently passed be re-attnatc ofhed in favour of the plaintiff, it shall not be necessary upon an in exemcuetion of decrnee application for execution of such decree to apply for re- veo attachment of the property. 5 G 20 2 © Agricultural 13. This Order shall not be deemed to authorise the plaintiff produce not attachable before to apply for the attachment of any agricultural produce in the judgment possession of an agriculturist, or to empower the court to order the attachment or production of such produce. 206 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ORDER XXXVII TEMPORARY INJUNCTIONS, DECLARATORY OR- DERS AND INTERLOCUTORY ORDERS G. Temporary Injunctions OA of Cases in which 1. Where in any suit it is proved by affidavit or otherwise- sio n temporary injunction may (a) that any property in dispute in a suit is in dangeer isrm of be granted or being wasted, damaged, or alienated by any p p ou at rty to declaratory order made the suit of or suffering loss of value by reaisthw on of its GN. No. continued use by any party to the suit, ort ewdrongly sold 376 of 1968 u in execution of a decree; or tribis (b) that the defendant threatens, or oirn dtends to remove or dispose of his property wuicteh d a view to defraud his creditors, pro d the court may, by order, grante ra e temporary injunction to restrain such act or make sucyh ba other order for the purpose of staying and preventing tkh mo e wasting, damaging, alienation, sale, loss in value, rems ob o i val or disposition of the property as the court thinks ofif th t, until the disposal of the suit or until further orders: rt o p a Provided th. Nat, an order granting a temporary injunction shall not b d reve made against the Government, but the court may in l se ireu thereof make an order declaratory of the rights of the pahrttsies. ll r ig A Injunction to n2ia. .–(1) In any suit for restraining the defendant from restrain repetitiozna or continuancea n committing a breach of contract or other injury of any kind, of breach f T o whether compensation is claimed in the suit or not, the plaintiff GNs. Nons.t 376 omf 1e968 may, at any time after the commencement of the suit and either 50e8rv nof 1991 before or after judgment, apply to the court for a temporary Go 5 injunction to restrain the defendant from committing the 022 breach of contract or injury complained of, or any breach of © contract or injury of a like kind arising out of the same contract or relating to the same property or right: Provided that, no application shall be made for a temporary injunction where the defendant is the Attorney General but, 207 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] in such case, the plaintiff may apply to the court for an order declaratory of the rights of the parties. (2) In case of disobedience or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and AG. may also order such person to be detained as a civil prisoner f O o for a term not exceeding six months, unless in the meantimesi,o n the court directs his release. is rm (3) Attachment under this rule shall not remain in foutr pcee for more than one year, at the end of which time, if the disoithboedience or breach continues, the property attached may w tebd e sold, and out of the proceeds the court may award sucthrib ucompensation as it thinks fit, and shall pay the balance, ri df isany, to the party entitled thereto. ed o du c o Procedure where 3. In addition to such terms as there p r keeping of an account and no application is made on giving security, the court may by yb eorder grant injunction under suit adjourned rule 1 or rule 2 and such ormda k er shall be in force for a period generally GN. No. specified by the court, bu bto onot exceeding six months: i 508 of 1991 Provided that, the cf tohus rt granting the injunction may extend such period for a o afurt rther period which in the aggregate shall not exceed oneN oy epar, upon being satisfied, on the application of the holder . ve dof such court injunction that the applicant has diligently r e sbeeen taking steps to settle the matter complained of and suhctsh r extension sought is in the interest of justice, necessary or d erigll sirable. ia. A Before granting n za 4. The court shall in all cases, before granting an injunction, injunction couartn to direct notfi cTe to direct notice of application for the same to be given to the oppositen pt o e arty opposite party, except where it appears that the giving of such GN. nNmo. 50e8r of 1991 notice would cause undue delay and that the object of granting Gov the injunction, would thereby be defeated. 250 ©2 Order for 5. An order for an injunction may be discharged, varied or set injunction or declaratory aside by the court on application made thereto by any party order may be dissatisfied with such order. discharged, varied or set aside GN. No. 376 of 1968 208 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Injunction to 6. An injunction directed to a corporation is binding not only corporation binding on its on the corporation itself, but also on all members and officers officers of the corporation whose personal action it seeks to restrain. GN. No. 508 of 1991 . Interlocutory Orders OAG of Power to order 7. The court may, on the application of any party to a suisti,o n interim sale GN. No. order the sale, by any person named in such order, an is edrm in 508 of 1991 such manner and on such terms as it thinks fit, of any m p uto vable o property, being the subject matter of such suit owrit hattached before judgment in such suit, which is subject uttoe d speedy and natural decay or which for any other just andi sstur ibfficient cause it may be desirable to have sold at once. or d d ce Detention, 8.–(1) The court may, on the applicartoido un of any party to a suit, preservation, inspection, etc., and on such terms as it thinks fit- p e r e of subject matter (a) make an order for t b ahye detention, preservation or of suit GN. No. inspection of anyo k mproperty which is the subject 508 of 1991 matter of such sisu bi ot, or as to which any question may arise therein; f th o (b) for all or aanrt p y of the purposes aforesaid authorise any person. tNo o enter upon or into any land or building in the pos ed esrvession of any other party to such suit; and (c) sf or ers all or any of the purposes aforesaid authorise any ht ll r ig samples to be taken, or any observation to be made or . A experiment to be tried, which may seem necessary or nia za expedient for the purpose of obtaining full information an T or evidence. of nt (2) The provisions as to execution of process shall apply, me n mutatis mutandis, to persons authorised to enter under ve r o this rule. 5 G 02 ©2 Application for 9.–(1) An application by the plaintiff for an order under rule orders to be after notice 6 or rule 7 may be made after notice to the defendant at any GN. No. time after institution of the suit. 508 of 1991 (2) An application by the defendant for a like order may be made after notice to the plaintiff at any time after appearance. 209 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Deposits of 10. Where the subject matter of a suit is money or some other money, etc., in court thing capable of delivery, and any party thereto admits that GN. No. he holds such money or other thing as a trustee for another 508 of 1991 party, or that it belongs or is due to another party, the court . may order the same to be deposited in court or delivered to AG O such last-named party, with or without security subject to the f n o further direction of the court. sios rm i pe ORDER XXXVIII ut tho APPOINTMENT OF RECEIVERSd w i ute trib Appointment 1.–(1) Where it appears to the court to be judsits and convenient, of receivers the court may, by order, do any of the fo or edllowing: (a) appoint a receiver of any propdue crty, whether before or o after decree; pr re (b) remove any person fromy b ethe possession or custody of the property; a k m (c) commit the prop beo orty to the possession, custody or management of tfh itshe receiver; (d) confer uponr t toa he receiver all such powers, as to bringing and defeNnod p ing suits and for the realisation, management, protecdt.ve ion, preservation and improvement of the prreos epr erty, the collection of the rent and profits thereof, htsthe application and disposal of such rents and profits, rig All and the execution of documents as the owner himself . nia has, or such of those powers as the court thinks fit. za an (2) This rule shall not be construed as to authorise the court to of T remove from the possession or custody of property any person t en whom any party to the suit has no a present right so to remove. rnme Gov Remuneration of 2. The court may, by general or special order, fix the amount to 25 receiver 20 be paid as remuneration for the services of the receiver. © Duties of receiver 3. Every receiver so appointed shall- (a) furnish such security, if any, as the court thinks fit, duly to account for what he shall receive in respect of the property; 210 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (b) submit his accounts at such periods and in such form as the court directs; (c) pay the amount due from him as the court directs; and (d) be responsible for any loss occasioned to the property . by his willful default or gross negligence. OAG of Enforcement of 4. Where a receiver- sio n receiver’s duties s (a) fails to submit his accounts at such periods and in i esrmuch form as the court directs; ut p o (b) fails to pay the amount due from him as ith w the court directs; or ute d (c) occasions loss to the property by his iswtr ibillful default or gross negligence, d or the court may direct his property to buec ea dttached and may sell such property, and may apply the pprro dceeds to make good any amount found to be due from h e eim r or any loss occasioned by him, and shall pay the balanceay, bif any, to the receiver. k mo OisR b oDER XXXIX th APPEALSrt Fo f ROM ORIGINAL DECREES o p a Form of appeal, 1.–(1) Every . aNd ppeal shall be preferred in the form of a contents of rve memorandum memoransdeum signed by the appellant or his advocate and and attachments present e tse rd to the High Court hereinafter in this Order referred to alls h r ig“the Court” or to such officer as it appoints in this behalf aian. Ad the memorandum shall be accompanied by a copy of za n n the decree appealed from and unless, the Court dispenses Ta therewith, of the judgment on which it is founded. nt of e (2) The memorandum shall set forth, concisely and under rnm distinct heads, the grounds of objection to the decree appealed ov e G from without any argument or narrative, and such grounds 5 02 shall be numbered consecutively. ©2 Grounds which 2. The appellant shall not, except by leave of the Court, urge may be taken on appeal or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Court, in deciding the appeal, shall not be confined to the grounds of objection set 211 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] forth in the memorandum of appeal or taken by leave of the court under this rule: Provided that, the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on AG. that ground. O n o f sio Rejection or 3.–(1) Where the memorandum of appeal is not drawn u s rpm iin amendment of memorandum the manner hereinbefore prescribed, it may be rejected, p oeut r be returned to the appellant for the purpose of being t w i ahomended within a time to be fixed by the Court or be amde te nded there and then. u str ib (2) Where the Court rejects a memoranodr dui m, it shall record the reasons for such rejection. d ce (3) Where a memorandum of appreoda ul is amended, the judge, or such officer as he appoints in t p eh ri es behalf, shall sign or initial the amendment. b may One of several 4. Where there are more thoao k b n one plaintiffs or more defendants plaintiffs or defendants may in a suit, and the decref teh isappealed from proceeds on any ground obtain reversal common to all the prtl oa aintiffs or to all the defendants, any one of of whole decree o p where it proceeds the plaintiffs or N f the defendants may appeal from the whole on ground decree, andrv et dh. ereupon the Court may reverse or vary the common to all decree in fsaere vour of all the plaintiffs or defendants. hts ll r ig A Stay of Proceedings and of Execution nia . Stay by appellaten za 5.–(1) An appeal shall not operate as a stay of proceedings court or by coTuart which passoef d under a decree or order appealed from except so far as the t decree en Court may order, nor shall execution of a decree be stayed m ern by reason only of an appeal having been preferred from the v G o decree but the Court may, for sufficient cause, order the stay of 5 20 2 execution of such decree. © (2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the court which passed the decree may, on sufficient cause shown, order the execution to be stayed. 212 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) An order for stay of execution shall not be made under subrule (1) or subrule (2) unless the High Court or the court making it is satisfied that- (a) substantial loss may result to the party applying for stay of execution unless the order is made; G. A (b) the application has been made without unreasonable O n o f delay; and io iss (c) security has been given by the applicant for thee rmdue performance of such decree or order as may ult p oui tm ately be binding upon him. ith w (4) Notwithstanding anything contained inut e dsubrule (3), the court may make an ex parte order for isstra iby of execution pending the hearing of the application. d d o r ce Security in case 6.–(1) Where an order is made for tohd ue execution of a decree of order for r execution of from which an appeal is pending ep e, rthe Court which passed the decree appealed decree shall, on sufficient causey a bbeing shown by the appellant, from require security to be takenok f mor the restitution of any property which may be or has be o ise bn taken in execution of the decree or for the payment of t hofe th value of such property and for the due t performance of t r hpae decree or order of the court or the court may, for like ca o d. u Nse, direct the court which passed the decree to take such s e se ervcurity. (2) W rhes ere an order has been made for the sale of immovable propreigr htty in execution of a decree, and an appeal is pending fr.o Am ll such decree, the sale shall, on the application of the anj iaudgment debtor to the Court which made the order, be stayed nz Ta on such terms as to giving security or otherwise as the court t o f thinks fit until the appeal is disposed of. n me Nvoe rsnecurity to 7. Security as is mentioned in rules 5 and 6 shall not be obe required from 5 GGovernment or required from the Government or, where the Government 022 public officer in has undertaken the defence of the suit, from any public officer © certain cases sued in respect of an act alleged to be done by him in his official capacity. 213 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Exercise of 8. The powers conferred by rules 5 and 6 shall be exercisable powers in appeal from order made where an appeal may be or has been preferred not from the in execution of decree but from an order made in execution of such decree. decree Procedure on Admission of Appeal AG. O of Registration of 9. Where a memorandum of appeal is admitted, the Court osrio n memorandum of appeal and the proper officer of the Court shall endorse thereon the is e rdmate register of appeals of presentation and shall register the appeal in a book p ou t, to be known as the Register of Appeal, and kept for the puitrhpose. ted w u Appellate court 10.–(1) The Court may in its direction, eitrtihb er before the may require appellant to respondent is called upon to appear and aonr s dwis er or afterwards furnish security on the application of the respondencetd, demand from the for costs appellant security for the costs of thero da uppeal, or of the original suit, or of both: re p e Provided that, the Court syh ba all demand such security in all cases in which the app m oekllant is residing out of Tanzania, and is not possessed o bo isf any sufficient immovable property within Tanzania othoefr t hthan the property, if any, to which the appeal relates. art p (2) Where s o . uNch security is not furnished within such time as the Cour d rtv eorders, the Court shall reject the appeal. sere Power to dismiss 11.–(1h)ts The Court, after sending for the record if it thinks fit appeal without rig sending notice to so tllo do, and after fixing a day for hearing the appellant or his lower court aiad. A n vocate and hearing him accordingly if he appears on that nz a a day, may dismiss the appeal without sending notice to the f T o court from whose decree the appeal is preferred and without nte serving notice on the respondent or his advocate. rnm ve (2) Where on the day fixed or any other day to which the Go hearing may be adjourned the appellant does not appear when 5 20 2 the appeal is called on for hearing, the Court may make an © order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the court from whose decree the appeal is preferred. 214 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Day for hearing 12.–(1) Unless the Court dismisses the appeal under rule 11, it appeal shall fix a day for hearing the appeal. (2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary for the service of the notice of appeal, AG. so as to allow the respondent sufficient time to appear and O of answer the appeal on such day. sio n is rm High Court to 13.–(1) Where the appeal is not dismissed under rule 1t p1 e, the give notice to u court whose Court shall send notice of the appeal to the court froithmo whose decree is appealed decree the appeal is preferred. ted w from and other requirements (2) The court receiving such notice shatlrlib usend with all practicable dispatch all material papers in is r d the suit, or such papers as may be specially called for byc tehd eo Court. (3) Either party may apply in wrdiuro ting to the court from whose decree the appeal is prefe rre pred, specifying any of the papers in such court of whichy hb ee requires copies to be made and copies of such papers shk amlal be made at the expense of, and given to, the applicant. oo b f th is Publication and 14.–(1) Notice of o atrht e day fixed under rule 12 shall be fixed service of notice p of day for hearing in the Court, aNnod a like notice shall be sent by the Court to of appeal the court fro d. vem whose decree the appeal is preferred, and shall be servedes eo r n the respondent or on his advocate acting for him inht st rhe Court in the manner provided for the service on a dlel rfie gndant of a summons, and all the provisions applicable tiao. n Asummons and to proceedings with reference to the service a an z thereof shall apply to the service of such notice. of T (2) Instead of sending the notice to the court from whose t en decree the appeal is preferred, the Court may itself cause the m ern notice to be served on the respondent or his advocate, and the ov G provisions of subrule (1) shall apply to such service. 02 5 ©2 Contents of notice 15. The notice to the respondent shall declare that if he does not appear in the Court on the day so affixed, the appeal will be heard ex parte. 215 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Procedure on Hearing Right to begin 16.–(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. . AG (2) The Court shall then, if it does not dismiss the appeal at f O o once, hear the respondent against the appeal, and in such cas n iss eio the appellant shall be entitled to reply. rm t p e Dismissal of 17.–(1) Where on the day fixed or on any other day u it htoo which appeal for appellant’s default the hearing may be adjourned, the appellant doetesd wnot appear and hearing of when the appeal is called on for hearing, the Cribo uurt may make appeal ex parte t an order that the appeal be dismissed. disr (2) Where the appellant appears ancde dt ohe respondent does not appear, the appeal shall be heardr oedx u  parte. p re Dismissal of 18. Where on the day fixed, ory ob en any other day to which the appeal where notice not served hearing may be adjourned,k mit a is found that the notice to the in consequence of respondent has not been b so oerved in consequence of the failure appellant’s failure to deposit costs of the appellant to de i f tphos sit, within the period fixed, the sum required to defray atrht oe cost of serving the notice, the Court may make an order Ntho apt the appeal be dismissed: Providedv . etdhat, no such order shall be made although the notice ha er es not been served upon the respondent, if on any such dhatsy r the respondent appears when the appeal is called on for hl ril egaring. . A Re-admission of nia nz a 19. Where an appeal is dismissed under subrule (2), of rule 11 appeal dismissaed for default f T or rule 17 or rule 18, the appellant may apply to the Court for t o en the re-admission of the appeal; and, where it is proved that he ern m was prevented by any sufficient cause from appearing when ov G the appeal was called on for hearing or from depositing the 250 sum so required, the Court shall re-admit the appeal on such ©2 terms as to costs or otherwise as it thinks fit. 216 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Power to adjourn 20. Where it appears to the Court at the hearing that any hearing and direct persons person who was a party to the suit in the court from whose appearing decree the appeal is preferred, but who has not been made a interested to be made party to the appeal, is interested in the result of the appeal, the . respondents Court may adjourn the hearing to a future day to be fixed by G OA the Court and direct that such person be made a respondent. f ion o ss Re-hearing on 21. Where an appeal is heard ex parte and judgmeenrmt i is application of respondent pronounced against the respondent, he may apply t p o uto the against whom Court to re-hear the appeal, and, if he satisfies the Cithourt that ex parte decree w made the notice was not duly served or that he wasu tpe drevented by sufficient cause from appearing when the appetraibis l was called on for hearing, the Court shall re-hear the a p d orp eal on such terms as to costs or otherwise as it thinks fit tuoce dimpose upon him. rod Upon hearing, 22.–(1) A respondent, though he mrepe ay not have appealed from respondent may object to decree any part of the decree, may noaty o bnly support the decree on any as if he had of the grounds decided agaoink mst him in the court below, but take preferred separate appeal any cross-objection to tish be o decree which he could have taken by way of appeal, pr oof vthided he has filed such objection in the t Court within one r p amonth from the date of service on him or his advocate o No ed .f notice of the day fixed for hearing the appeal, or within seurvch further time as the Court may see fit to allow. (2) Th re s s e cross-objection shall be in the form of a memohrtrig andum and the provisions of rule 1, so far as they relate to. At lhl e form and contents of the memorandum of appeal, shall ana iapply thereto. z Tan (3) Unless the respondent files with the objection a written f t o acknowledgement from the party who may be affected by such men objection or his advocate, of having received a copy thereof, rn ov e the Court shall cause a copy to be served, as soon as may be 5 G after the filing of the objection, on such party or his advocate 2 ©20 at the expense of the respondent. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed 217 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. Remand of case 23. Where the court from whose decree an appeal is preferred by High Court has disposed of the suit upon a preliminary point and the G. A decree is reversed in appeal, the Court may if it thinks fit, by f O order, remand the case and may further direct what issue orio n o s issues shall be tried in the case so remanded, and shall is esremnd a copy of its judgment and order to the court fromu tw p hose o decree the appeal is preferred, with directions towi thre-admit the suit under its original number in the registeurt eo df civil suits, and proceed to determine the suit, and the rib i stevidence, if any, recorded during the original trial, shall ,o r sdubject to all just exceptions, be evidence during the tria e ulc a dfter remand. rod Where evidence 24. Where the evidence upon thee r eepcord is sufficient to enable on record sufficient, High the Court to pronounce judgmy ba ent, the Court may, after re- Court may finally settling the issues, if neceks mo sary, finally determine the suit, determine case notwithstanding that the b ois judgment of the court from whose decree the appeal is th o f preferred has proceeded wholly upon some ground oth epar r tthan that on which the Court proceeds. o . N Where High 25. Where trhvee d court from whose decree the appeal is preferred Court may frame se issues and refer has omi treted to frame or try any issue, or to determine any them for trial questigiho tsn of fact, which appears to the Court essential to the to court whose decree is appealed rig Ahl l tr decision of the suit upon the merits, the Court may, if niae.from an cessary, frame issues and refer the same for trial to the court z Tan from whose decree the appeal is preferred, and in such case t o f shall direct such court to take the additional evidence required, men n and such court shall proceed to try such issues and shall return ve r the evidence to the Court together with its findings thereon 5 G o 2 and the reasons therefor. ©20 Findings and 26.–(1) The evidence and findings shall form part of the record evidence to be put on record, in the suit, and either party may, within a time to be fixed by the objections to Court, present a memorandum of objections to any finding. finding and determination of appeal 218 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) After the expiration of the period so fixed for presenting such memorandum, the Court shall proceed to determine the appeal. Production 27.–(1) The parties to an appeal shall not be entitled to G. of additional A evidence in High produce additional evidence, whether oral or documentary, in O of Court the Court, but if- ions (a) the court from whose decree the appeal is preferredr mh isas e refused to admit evidence which ought to havuet p been admitted; or ith o w (b) the Court requires any document to be d u teproduced or any witness to be examined to enableis tri ibt to pronounce judgment, or for any other substan otri ad l cause, the Court may allow such evidencec edor document to be produced, or the witness to be examroidn ued. (2) Wherever additional evideen rc epe is allowed to be produced by the Court, the Court shall recyo ba rd the reason for its admission. k m Mode of taking 28. Wherever additionasl e oob vidence is allowed to be produced, additional evidence the Court may eithe th orf t iake such evidence or direct the court from whose decreret pa the appeal is preferred, or any other subordinate co o . uNrt, to take such evidence and to send it, when taken, to threv eC d ourt. e res Points to be 29. Whhtse re additional evidence is directed or allowed to be defined and takel nrigrecorded Al , the Court shall specify the points to which the evidence nias . to be confined, and record on its proceedings the points za an so specified. of T nt me Judgment in Appeal ern ov GJudgment, when 30. The Court, after hearing the parties or their advocates and 250 and where 2 pronounced referring to any part of the proceedings to which reference © may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their advocates. 219 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Contents, date 31. The judgment of the Court shall be in writing and and signature of judgment shall state- (a) the points for determination; (b) the decision thereon; . (c) the reasons for the decisions; and AG O (d) where the decree appealed from is reversed or varied, f n o the relief to which the appellant is entitled, io miss and shall, at the time that it is pronounced, be signede rand dated by the judge or by the judges concurring thereinu.t p ith o w What judgment 32. The judgment may be for confirming, varyinugte do r reversing may direct the decree from which the appeal is preferred ib ist ror, if the parties to the appeal agree as to the form which tohr de decree in appeal shall take or as to the order to be maudedc in appeal, the Court may pass a decree or make an orderp rao dccordingly. e e r Power of High 33. The Court shall have powaeyr b to pass any decree and make Court any order which ought to ohk mave been passed or made and to pass or make such furthise br o or other decree or order as the case may require, and th t oisf hpower may be exercised by the Court notwithstanding tpha ratt, the appeal is as to part only of the decree and may be exe. Nr ocised in favour of all or any of the respondents or parties, d earvlt ehough such respondents or parties may not have filed any r ea sppeal or objection. ts igh Dissent to be 34 A. l l Wr here the appeal is heard by more than one judge, any recorded njia . a udge dissenting from the judgment of the Court shall state in z an writing the decision or order which he thinks should be passed of T t on the appeal, and may state his reasons for the same. en ern m ov Decree in Appeal 5 G2 20 Date and contents 35.–(1) The decree of the Court shall bear the date of the day © of decree GN. Nos. on which the judgment was pronounced. 223 of 2010 (2) The decree shall contain the number of the appeal, the 136 of 2011 names and descriptions of the appellant and respondent and a clear specification of the relief granted or other adjudication made. 220 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (3) The decree shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportion such costs and the costs in the suit are to be paid. (4) The decree shall be signed and dated by the judge or G. A judges who passed it: of O Provided that, where there are more than one Judges ansdio n there is a difference of opinion among them, it shall notm ibsr e necessary for any judge dissenting from the judgmenut t o pef the Court to sign the decree. thoi (5) Where a judge has vacated office after tepdr wonouncing judgement without signing the decree the Rteribg uistrar, Deputy Registrar or the District Registrar of the Hi s rg dh i Court shall sign the decree. o ce d duo Copies of 36. Certified copies of the judgmenretp rand decree in appeal shall judgment and decree to be be furnished to the parties on e ya bpplication to the Court and at furnished to their expense. ma parties ok bo Certified copy of 37. A copy of the judfg tmh isent and of the decree, certified by the decree to be sent o to court whose Court or such officaertr as it appoints in this behalf, shall be sent decree appealed to the court whNioc hp passed the decree appealed from and shall from be filed withv etdh . e original proceedings in the suit, and an entry of the judgemres ent of the Court shall be made in the register of civil sutist rs. rig h All a. i ORDER XL n nz a a APPEALS FROM ORDERS of T t Appealse nfrom 1. An appeal shall lie from the following orders under the ord er enrms provisions of section 84: Gov (a) an order under rule 10 of Order VII returning a plaint 25 20 to be presented to the proper court; © (b) an order under rule 14 of Order VIII pronouncing judgment against a party; (c) an order under rule 5 of Order IX rejecting an application, in a case open to appeal, for an order to set aside the dismissal of a suit; 221 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (d) an order under rule 9 of Order IX rejection an application, in a case open to appeal, for an order to set aside a decree or judgment passed ex parte; (e) an order under rule 4 of Order X pronouncing . judgment against a party; AG O (f) an order under rule 18 of Order XI; of n (g) an order under rule 10 of Order XVI for the attachmeisnst io of property; pe rm (h) an order under rule 20 of Order XVI pronoouu t ncing judgment against a party; ith d w (i) an order under rule 34 of Order XXI on aunteb objection to the draft of a document or of an endoisrtd sriement; (j) an order under rule 74 or rule 94 o ofr d Order XXI setting aside or refusing to set aside a dsua cele; (k) an order under rule 9 of Oro eprder XXII refusing to set aside the abatement of d r ibsemissal of a suit; (l) an order under rule 1 0m aoyf Order XXII giving or refusing to give leave; ok bo (m) an order unde s thr i rule 3 of Order XXIII recording or refusing tor t or fecord an agreement, compromise or satisfactioo np a; (n) an ord.e e Nr under rule 2 of Order XXV rejecting an appelrivs cation for an order to set aside the dismissal of a suit; e (o) tsa rh n order under rule 3 or rule 8 of Order XXXII refusing ig ll r to extend the time for the payment of mortgage-money; ia. A(p) orders in interpleader-suits under rule 3, rule 4 or an nz rule 6 of Order XXXIII; f T a o (q) an order under rule 3, rule 4 or rule 7 of Order XXXVI; t en (r) an order under rule 1, rule 2, rule 4 or rule 9 of ern m Order XXXVII; ov G (s) an order under rule 1 or rule 4 of Order XXXVIII; 25 20 (t) an order of refusal under rule 19 of Order XXXIX to © re-admit, or under rule 21 of Order XXXIX to re-hear, an appeal; 222 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (u) an order under rule 23 of Order XXXIX remanding a case, where an appeal would lie from the decree of the High Court; (v) an order under rule 4 of Order XLII granting an . application for review. AG O of Procedure 2. The rules of Order XXXIX shall apply, so far as may be, tsoios n appeals from orders. i pe rm uto ORDER XLI ith d w REFERENCE ute rib dis t Reference of 1. Where, before or on the hearing of a sui to rd i n which the decree question to High Court is not subject to appeal or where, in thdue c eexecution of any such decree, any question of law or usaepg reo having the force of law arises, on which the court trying r btehe suit or appeal, or executing the decree, entertains reasonmaab y le doubt, the court may, either of its own motion or on ok btohe application of any of the parties, draw up a statement o thf i sthe facts of the case and the point on which doubt is entret rot f ained and refer such statement with its own opinion on ot hp ae point for the decision of the High Court. d. N Court may pass 2. The cousrrtv ee may either stay the proceedings or proceed in the decree contingent re upon decision of case notst withstanding such reference, and may pass a decree or h High Court mak g All r ei an order contingent upon the decision of the High Court o ian. the point referred, but no decree or order shall be executed za nin any case in which such reference is made until the receipt of n f T a a copy of the judgment of the High Court upon the reference. t o en Judrgnment of 3. The High Court, after hearing the parties if they appear and Hviegh Court to be Go transmitted, and desire to be heard, shall decide the point so referred and shall 250 case disposed of transmit a copy of its judgment under the signature of the ©2 accordingly Registrar to the court by which the reference was made and such court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court. 223 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Costs of reference 4. The costs, if any, consequent on a reference for the decision to High Court of the High Court shall be costs in the case. Power to alter, 5. Where a case is referred to the High Court under rule 1, the etc., decree of court making High Court may return the case for amendment and may alter, G. A reference cancel or set aside any decree or order which the court making of O the reference has passed or made in the case out of which thseio n s reference arose and make such order as it thinks fit. i pe rm ut Power to refer 6.–(1) Where at any time before judgment a court i o inth which a to High Court questions as to suit has been instituted doubts whether the suit w teids cognisable jurisdiction by that court or is not so cognisable, it may subibmustr it the record to the High Court with a statement of its reoar s doi ns for the doubts as to the nature of the suit. ed c (2) On receiving the record and srt u oadtement, the High Court may order the court either to proec er eepd with the suit or to return the plaint for presentation to asyu bch other court as it may in its order declare to be competoekn mt to take cognisance of the suit. is bo of thORDER XLII rt o p a REVIEW d. N Application 1.–(1) A peervs eon considering himself aggrieved- for review of es judgment (a) sb ry a decree or order from which an appeal is allowed, ht rig but from which no appeal has been preferred; or . A( llb) by a decree or order from which no appeal is allowed, n za aiand who, from the discovery of new and important matter Tan or evidence which, after the exercise of due diligence, was nt of not within his knowledge or could not be produced by him nm e at the time when the decree was passed or order made, or on r ve account of some mistake or error apparent on the face of the 5 G o 2 record, or for any other sufficient reason, desires to obtain a 20© review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency 224 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. G. A To whom 2. An application for review of a decree or order of a court, f O application for n o review may other than the High Court, upon some ground other than thseio be made discovery of such new and important matter or evidence arms i sis referred to in rule 1 or the existence of a clerical or arithum peet tical mistake or error apparent on the face of the decreeithw , oshall be made only to the magistrate who passed the detc erdee or made u the order sought to be reviewed, but any suchs tar ipb plication may, i if the magistrate who passed the decree or d o rm ade the order has ordered notice to issue under paragrap d che (b) of the proviso to u subrule (2) of rule 4. rod re p e Form of 3. The provisions as to the f b aoyrm of preferring appeal shall applications for review apply, mutatis mutandis, too ka mpplications for review. bo Application, 4.–(1) Where it appea is f rths to the court that there is not sufficient where rejected or granted ground for a reviewar,t oit shall reject the application. (2) Where t o p Nhe court is of opinion that the application for review shouvledd .be granted it shall grant the same: Providee r sed that- r (a) htsn o such application shall be granted without previous ll r ig A notice to the opposite party, to enable him to appear nia . and be heard in support of the decree or order, a review a an z of which is applied for; and T t o f (b) no such application shall be granted on the ground of men discovery of new matter or evidence which the applicant ve rn alleges was not within his knowledge, or could not be o 5 G adduced by him when the decree or order was passed 2 20 or made, without strict proof of such allegation. © Application for 5.–(1) Where the judge or judges, or any one of the judges, review in court consisting of two who passed the decree or made the order, a review of which is or more judges applied for, continues or continue attached to the court at the 225 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such judge or . judges or any of them shall hear the application, and no other OAG judge or judges of the court shall hear the same. of n (2) For the purposes of this rule and rule 6, “judge” includ io isess a magistrate. rm ut pe Decision where 6.–(1) Where the application for a review is heardt hboi y more application heard w by more than one than one judge and the Court is equally divided, thteedu application judge shall be rejected. rib ist (2) Where there is a majority, the decisioonr d shall be according to the opinion of the majority. ce d u rod Order of rejection 7.–(1) An order of the Court re p jrecting the application shall not appealable and objections not be appealable, but an ordeary g breanting an application may be to order granting objected to on the ground tkh mat the application was- application o (a) in contravention bo is of the provisions of rule 2; (b) in contraventoifo thn of the provisions of rule 4; (c) after the pae rtx piration of the period of limitation prescrib o . Ned therefor and without sufficient cause, and such orbveje dction may be taken at once by an appeal from the orde rre sgeranting the application or in any appeal from the final idghe tscree or order passed or made in the suit. ll r A(2) Where the application has been rejected in consequence . an oiaf the failure of the applicant to appear, he may apply for an an z order to have the rejected application restored to the file and T t o f where it is proved to the satisfaction of the court that he was enm prevented by any sufficient cause from appearing when such ernv application was called on for hearing, the court shall order o G it to be restored to the file upon such terms as to costs or 5 20 2 otherwise as it thinks fit and shall appoint a day for hearing © the same. (3) An order shall not be made under subrule (2) unless notice of the application has been served on the opposite party. 226 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Registration 8. When an application for review is granted, a note thereof of application granted, and shall be made in the register and the court may at once re-hear order for the case or make such order in regard to the re-hearing as it re-hearing thinks fit. G. A Bar of certain 9. No application to review an order made on an application of O applications for a review or a decree or order passed or made on a reviewio nss shall be entertained. erm i p ou t ORDER XLIII ith w MISCELLANEOUS PROVISIONuteS d trib Powers of 1. Subject to any general or special direc s or dtiion of the Chief Registrars GN. Nos. Justice, the following powers may be exe cerdcised by the Registrar 223 of 2010 or any Deputy or District Registrar roodf u the High Court in any 136 of 2011 proceeding before the High Cour ep et r- (a) to appoint and extenda yt bhe time for filing the written statement of defencoek, mto give leave to file a reply thereto and to appoint ans bd o i extend the time for filing such reply under Order th oVf III, rule 1, 11, and 13; (b) to order tpha rat t a suit be dismissed under Order IX, rules 2 o ., N3 and 5; (c) to emrv eadke an order or give judgment on admissions urnes der order XII, rule 4; hts(drig) to sign decrees under Order XX, rule 9; . A( lle ) to admit, reject or allow the amendment of an an ia application for execution of a decree under Order XXI, nza rule 16; of T nt (f) to issue notice under Order XXI, rule 22; e rnm (g) to order that a decree be executed under Order XXI, veo rule 23; 5 G2 (h) to issue process for execution of a decree under Order ©20 XXI, rule 24; (i) to stay execution, restore property, discharge judgment- debtors and require and take security under Order XXI, rule 26; 227 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (j) if there is no judge at the place of registry, to issue a notice to show cause and to issue a warrant of arrest under Order XXI, rule 37; (k) if there is no judge at the place of registry, to order . attendance, examination and production under Order AG O XXI, rule 42; of n (l) to order that an agreement, compromise or satisfactio io issn be recorded under Order XXIII, rule 3; and rm pe (m) to exercise the powers and duties of a judgeo uo t r of a magistrate and may pronounce judgement wsi thand sign d decrees and make orders and transact te btuhe business of the High Court or the court of a magiistrd tirate. r d o Applications to 2. Every application to the Court madeuc eunder this Code shall, be by chamber summons unless otherwise provided, be madpero dby a chamber summons supported by supported by affidavit: e r e affidavit b Provided that, the Court aym ay where it considers fit to do so, entertain an applicoao kt imon made orally or, where all the parties to a suit consenits bto the order applied for being made, by a memorandum ti no f twh riting signed by all the parties or their advocates, or in su pca rh other mode as may be appropriate having regard to all t.h Ne o circumstances under which the application is made. edrv res e Process to be 3.–(1)h tEsvery process issued under this code shall be served at served at expense ig ll r of party issuing th eA expense of the party on whose behalf it is issued, unless the . and costs of anc iaourt otherwise directs. service an z (2) The court fee chargeable for such service shall be paid T t o f within a time to be fixed before the process is issued. men Ovred renrs and 4. All orders, notices and other documents required by this Gonotices, how served Code to be given to or served on any person shall be served in 5 20 2 the manner provided for the service of summons. © Directions of 5.–(1) The Registrar of the High Court may by telegram, notify High Court may be notified by any officer of the court of any order made by the High Court telegram and direct him to take such steps as may be necessary to give effect to the order. 228 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) A  telegram sent under the provisions of subrule (1) shall state- (a) the number and title of the proceeding; (b) the substance of the order; and . (c) the action required to be taken. AG (3) On receipt of a telegram sent in accordance with the O of provisions of this rule the officer to whom it is addressed shasslil o n act in accordance with the directions given to him. erm i p ut ith o SECOND SCHEDULE w ute d (Made under section 90) ib dis tr THE CIVIL PROCEDURE (ARBITRdA oT r ION) RULES ce Citation and 1.–(1) These Rules may be cited oda us the Civil Procedure application r GN. No. (Arbitration) Rules. ep e r 376 of 1968 (2) In addition to their appl b aicyation to any other proceedings, Cap. 5 these Rules shall also ap opkl my to proceedings to which the Government Proceedings sb o Act applies. thif A rt o pRa BITRATION IN SUITS No . Order of reference 1.–(1) Wherrve d in any suit all the parties interested agree that to arbitration se GN. No. any ma trteer in difference between them shall be referred 422 of 1994 to ar ts rig bhitration they may, at any time before judgment is pr oAlnl ounced, apply to the court for an order of reference. ia. za n (2) Every such application shall be in writing and shall state an the matter sought to be referred. f T t o Appoinetmn ent 2. The arbitrator shall be appointed in such manner as may be of arrnbmitrator e agreed upon between the parties. Gov 02 5 2 Order of reference 3.–(1) The court shall, by order, refer to the arbitrator the © matter in difference which he is required to determine, and shall fix such time as it thinks reasonable for the making of the award, and shall specify such time in the order. 229 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] (2) Where a matter is referred to arbitration the court shall not, save in the manner and to the extent provided in these Rules, deal with such matter in the same suit. Where reference 4.–(1) Where the reference is made to two or more arbitrators, G. is made to two or A more arbitrators, provisions shall be made in the order for a difference of opinion of O order to provide among the arbitrators- sio n for difference of opinion (a) by the appointment of an umpire; is erm (b) by declaring that if the majority of the arbitratorust pagree, the decision of the majority shall prevail; tho wi (c) by empowering the arbitrators to appointu tand e umpire; or (d) otherwise as may be agreed betweenis ttrh ibe parties or, if they cannot agree, as the court ma yor  ddetermine. (2) Where an umpire is appointed, t d che e court shall fix such time as it thinks reasonable for the mroadk uing of his award in case he is required to act. p e r e y ba Power of court to 5.–(1) In any of the followink gm cases: appoint arbitrator o in certain cases (a) where the partie sbos cannot agree within a reasonable i time with resopf tehct to the appointment of an arbitrator, or the perpsao rtn appointed refuses to accept the office of arbitrat . oNro; or (b) wheredrv an arbitrator or umpire- ( ir)e s e dies; htsig (ii) refuses or neglects to act or becomes incapable of All r acting; or . nia (iii) leaves Tanzania in circumstances showing that he a an z will probably not return at an early date; or T t o f (c) where the arbitrators are empowered by the order of men reference to appoint an umpire and fail to do so, rn ve any party may serve the other party or the arbitrators with a 5 G o written notice to appoint an arbitrator or umpire. 022 (2) Where within seven clear days after such notice has © been served or such further time as the court may in each case allow, no arbitrator or no umpire is appointed, the court may, on application by the party who gave the notice and after giving the other party an opportunity of being heard, appoint 230 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] an arbitrator or umpire or make an order superseding the arbitration, and in such case shall proceed with the suit. Powers of 6. Every arbitrator or umpire appointed under rule 4 or rule 5 arbitrator or umpire appointed shall have the like powers as if his name had been inserted in AG. under rule the order of reference. f O 4 or 5 n o sio Summoning 7.–(1) The court shall issue the same processes to the parrmti ises witnesses and default and witnesses whom the arbitrator or umpire des pe uitr es to examine, as the court may issue in suits tried before iithto. (2) Persons not attending in accordance with s w teud ch process, or making any other default, or refusing to givte u rib their evidence, or guilty of any contempt to the arbitrator s r do i r umpire during the investigation of the matters referred,e sd hoall be subject to the like disadvantages, penalties and punoids uhcments, by order of the court on the representation of the raer pbr itrator or umpire, as they would incur for the like offenceys b i en suits tried before the court. m a Extension of time 8. Where the arbitrators k bo oor the umpire cannot deliver the for making award award within the perif othd is specified in the order, the court may, if it thinks fit, eithaertr o allow further time either before or after the expiration ofo tpN he period fixed for the making of the award, enlarge suchve dp . eriod or may make an order superseding the arbitratioense, r and in such case shall proceed with the suit. hts r Where umpire 9. W rihgll ere an umpire has been appointed, he may enter on the may arbitrate in re. fAlieu of arbitrators ia erence in the place of the arbitrators- an nz (a) where they have allowed the appointed time to expire a f T without making an award; or t o en (b) where they have delivered to the court or to the umpire ern m a notice in writing stating that they cannot agree. ov 25 G 0 Award to be 10. Where an award in a suit has been made, the persons who ©2 signed and filed made it shall sign it and cause it to be filed in court, together with any depositions and documents which have been taken and proved before them, and notice of the filing shall be given to the parties. 231 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Statement of 11. Upon any reference by an order of the court, the arbitrator special case by arbitrators or or umpire may, with the leave of the court, state the award as to umpire the whole or any part thereof in the form of a special case for the opinion of the court, and the court shall deliver its opinion . thereon, and shall order such opinion to be added to and to G OA form part of the award. of n ss io Power to modify 12. The court may, by order, modify or correct an award- mi r or correct award e (a) where it appears that a part of the award iso uu t pp on a matter not referred to arbitration and such p th w iart can be separated from the other part and does tnedu ot affect the decision on the matter referred; str ib i (b) where the award is imperfect in fo d or m or contains any obvious error which can be amuecne dded without affecting such decision; or rodp (c) where the award containbse a re clerical mistake or an error arising from an accidmen aytal slip or omission. ok Order as to costs 13. The court may alisso b o make such order as it thinks fit of arbitration respecting the costs o th off the arbitration where any question arises respecting such caor t p sts and the award contains no sufficient provision conc. eNd roning them. rve Where award or 14. The rceos e urt may remit the award or any matter referred to matter referred to arbitration may arbitrahttsig ion to the reconsideration of the same arbitrator or be remitted umll r . Apire, upon such terms as it thinks fit- niaa (a) where the award has left undetermined any of the nz Ta matters referred to arbitration, where it determines any t o f matter not referred to arbitration, unless such matter en nm can be separated without affecting the determination er ov of the matters referred; 5 G2 (b) where the award is so indefinite as to be incapable of ©20 execution; or (c) where an objection to the legality of the award is apparent upon the face of it. 232 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] Grounds for 15.–(1) An award remitted under rule 14 becomes void on setting aside award failure of the arbitrator or umpire to reconsider it, but no award shall be set aside except on one of the following grounds: (a) corruption or misconduct of the arbitrator or umpire; . (b) either party having been guilty of fraudulent OAG concealment of any matter which he ought to have n o f disclosed or of willfully misleading or deceiving tihsse io arbitrator or umpire; pe rm (c) the award having been made after the issueu t o of an order by the court superseding the arbit ith wration and d proceeding with the suit or after the ex t bpuieration of the period allowed by the court or beingd o i isttrherwise invalid. (2) Where an award becomes void oro r d is set aside under subrule (1), the court shall make anu coerder superseding the arbitration and in such case shall prporoc deed with the suit. e e r Judgment to 16.–(1) Where the court seesa ny bo cause to remit the award or be according to award any of the matters referred kt moo o arbitration for re-consideration in the manner aforesaidis, band no application has been made to h set aside the award to or f t the court has refused such application, the court shall, a pfta rer the time for making such application o has expired, dp. r Noceed to pronounce judgment according to the award. e se rv (2) U pres on the judgment so pronounced a decree shall follow and nigoh t r appeal shall lie from such decree except in so far as the de. Ac lrl ee is in excess of, or not in accordance with, the award. ia za n n Ta ORDER OF REFERENCE ON AGREEMENTS f nt o TO REFER TO ARBITRATION me Avpe rn o plication 17.–(1) Where any persons agree in writing that any difference 5 Gto file in court 2 agreement between them shall be referred to arbitration, the parties to 0 ©2 to refer to the agreement or any of them may apply to any court having arbitration jurisdiction in the matter to which the agreement relates, that the agreement be filed in court. (2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties 233 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] interested or claiming to be interested as plaintiff or plaintiffs, and the others or other of them as defendants or defendant if the application has been presented by all the parties or, if otherwise, between the applicant as plaintiff and the other parties as defendants. . OAG (3) On such application being made, the court shall direct of notice thereof to be given to all the parties to the agreemensti,o n other than the applicants, requiring such parties to show ca is rumse, within the time specified in the notice, why the agre epmeut ent should not be filed. ith o (4) Where no sufficient cause is shown, the couterdt w shall order the agreement to be filed, and shall make an ortrdib uer of reference to the arbitrator appointed in accordance w s r di ith the provisions of the agreement or, if there is no such prcodv oe ision and the parties cannot agree, the court may appointr oadn u  arbitrator. p re Stay of suit 18. Where any party to any agreye bm e ent to refer to arbitration, or where there is agreement any person claiming under kh mim a , institutes any suit against any to refer to other party to the agree o mboent, or any person claiming under arbitration him, in respect of any hmisf t atter agreed to be referred, any party to such suit may, aatr tt ohe earliest possible opportunity and in all cases where issuNeo s p are settled at or before such settlement, apply to the courtr vteo d .stay the suit, and the court, if satisfied that there is no suffiresc eient reason why the matter should not be referred in accgho tsr dance with the agreement to refer to arbitration, and thatll rA tihe applicant was, at the time when the suit was instituted naian . d still remains, ready and willing to do all things necessary za an to the proper conduct of the arbitration, may make an order T t o f staying the suit. en rnmPvreovisions 19. The provisions of rules 17 and 18, so far as they are Goapplicable to proceedings consistent with any agreement filed under rule 17, shall be 5 20 2 under rule 17 applicable to all proceedings under the order of reference © made by the court under that rule and to the award and to the decree following thereon. 234 THE CIVIL PROCEDURE CODE ACT [CAP. 33 R.E. 2023] ARBITRATION WITHOUT THE INTERVENTION OF A COURT Filing award in 20.–(1) Where any matter has been referred to arbitration matter referred . to arbitration without the intervention of a court, and an award has been AG O without made thereon, any person interested in the award may apply n o f intervention of court to any court having jurisdiction over the subject matter of th io isse award that the award be filed in court. rm pe (2) The application shall be in writing and shall be nuomu t bered and registered as a suit between the applicant as p lwai tihntiff and the other parties as defendants. d ute (3) The court shall direct notice to be giv rib iset n to the parties to the arbitration, other than the applican otr, drequiring them to show cause within a time specified, wh ed uyc the award should not be filed. rod re p e Filing and 21.–(1) Where the court is saatyi s bfied that the matter has been enforcement of such award referred to arbitration andk mo that an award has been made thereon and where no grso bi uo nd such as is mentioned or referred to in rule 14 or rul eof t1h5 is proved, the court shall order the award to be filed p a rnt d shall proceed to pronounce judgment according to th o d. Ne award. (2) Upo e enrv the judgment so pronounced a decree shall follow, and no arpes peal shall lie from such decree except in so far as the decreeh tig iss in excess of or not in accordance with the award. All r ia. an an z T t o f men ern Gov 25 0 ©2 235 G. A of O sio n is rm t p e ou ith ted w u str ib i or d ce d u rod re p e ay b k m oo his b f t art o No p ed . rv se ts re igh All r nia . nz a a f T nt o me ve rn 5 G o 2 ©20