Mayende Civil 2012 - COUNCIL OF LEGAL EDUCATION KENYA...

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Mayende N. Syphurine Page 1 COUNCIL OF LEGAL EDUCATION KENYA SCHOOL OF LAW THE ADVOCATES TRAINING PROGRAMME CIVIL LITIGATION ATP 100
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CIVIL PROCEDURE PROCEDURE AND RULES THAT GOVERN PROCEEDING Assuming the defendant has been served and opted not to defend the plaintiff may apply for judgment in default of defence. One has to find out whether they are entitled to final or interlocutory judgment both of which have diferent procedures. Assuming Defendant chooses to defend the action and as such has filed a defence. If the defence is filed and served one has to decide whether to make an application. Decision depends on cause of action if it is in the sphere of Order 36 one can apply for summary judgment which applies in only some cases. This is a short cut and the court has right to make orders. If not under Order 36 if one thinks what is filed does not constitute a defence one may want to terminate the proceedings under Order 2 Rule 15 in favor of their client i.e. if the suit is frivolous . These are two ways of bringing to an end the proceedings without a trial. When one wants to demand for information to help them make their mind, or wants matters clarified to determine the next step to take. To preserve the subject matter of litigation pending trial, you don’t want judgment or to strike out the defence, for this purpose one requires an injunction to preserve the subject matter. 1 At this stage one has to make their minds which application to make these interlocutory proceedings. Fixing your suit for trial has another series of steps i.e. summoning witnesses, knowing whether there is a procedure in adjournment of suits. What happens if a suit is fixed for trial and only the plaintiff turns up? After these and the suit eventually come to trial, one must know who has the right to begin. Under Civil Procedure Rules there are times when the Defendant must begin; usually it is the Plaintiff who is entitled. It depends on the kind of pleadings, if the defence admits the facts as stated by the Plaintif. Evidence is conducted in a particular order. The sequence of calling evidence: It is important to make a statement to establish ones case. Examination in chief begins and then cross examination by the other side. Where a witness turns hostile, the rules allow one to examine the hostile witness to show that they are unreliable. Sometimes witnesses can choose to forget. Ensure you have an understanding with your witnesses to streamline their memory and to anticipate anything. Once this is done the court delivers judgment. The next question we should ask ourselves then is what is a judgment? Once judgment is written, there is a procedure of extracting the decree. Trials of civil proceedings do not end in judgment there is a subsequent step which is important. This distinguishes whether your client has won theoretically. One applies for execution of the judgment, enforcement of a right that has been acquired. One
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must apply for the decree to be executed. What mode of execution does 1 Order 39 or 40 of the Civil Procedure Rules 2010
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