CIVIL PROCEDURE LECTURE 10 7TH July 2006.doc

The action of referring the dispute to informal

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The action of referring the dispute to informal arbitration cannot be said to be a step taken with a view of proceeding with the suit. Only a step taken on the record such as interlocutory application would amount to a step taken as envisaged by Rule 6”. There is a window that if the suit is dismissed under Rule 6 … but under Rule 2 where parties have been asked to show cause, if the suit is dismissed then the Plaintif cannot bring on a fresh suit. Courts discretion under Rule 6 The court will consider the following That hearing of suit can proceed without further delay Defendant will sufer no hardship There has been no frequent inactivity on the part of the Plaintif.
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Order XVI Rule 5 – if the plaintif does not set the suit for trial the defendant may apply for suit to dismiss for want of trial. If the judge is unable to complete case because of death or transfer, the successor may deal with the suit as if he had taken the evidence himself and continue to hear the suit as if he had taken the evidence himself. If a suit is transferred from one Once evidence has been taken and submissions have been made the court should pronounce judgment Order XX – judgment must pronounce reason for every issue – ratio decidendi Rule 2 empowers the judge to pronounce and signed a judgment which has been written, signed but not pronounced by predecessor can be read and signed by the subsequent judge or magistrate. It should be dated and signed by him in open court at the time of pronouncing it. Where the judgment is read by a diferent judge who did not write the judgement the one who wrote should countersign. Once a judgement has been read, the court becomes functus officio. Under provisions of Section 39 the court may add for purposes of correcting clerical or arithmetical errors. An error on the face. Decree nisi – The date on decree should be the date on which judgment was deliver but should be in agreement with the judgment. Rule 6 Order XX – number of the suit, names and particulars of parties, reliefs granted and other determination granted, by who the costs are to be paid. Rule 7 – any party to a suit may prepare a decree and give it to other party for approval, if they don’t ask the court to accept the draft and if the court approves they sign and seal and it becomes the official decree. If the parties disagree as to the format,, the party can make the decision on how it is to be settled and the decree is signed and sealed and remains part of the courts records. Rules 11 – where a decree for payment of money – this application is by way of chamber summons for the court to agree whether to allow payments by instalments or not.
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Procedure under Order XXXVIII does not provide for secrecy and therefore in terms of efficiency a Mareva is better placed to protect the interests of a party. A practical advocate will go the way of Ochieng J. in Barclays v Christian, and under provisions of Order XXXVIII to show order why security should be furnished. EXECUTION PROCEEDINGS
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