Order 10 of the Civil Procedure Rules (CPR), 2010 of Kenya deals with the consequences of non-appearance, default of defence, and failure to serve a statement of defence in civil proceedings. This order is critical in regulating the litigation process as it deals with the processes that come right at the onset of the case. Order 10 ensures cases proceed smoothly, fairly and expeditiously, and that litigants are held accountable for their actions or inactions towards court proceedings.
The first aspect of Order 10 deals with the consequences of non-appearance of the defendant/Respondent. Where a defendant fails to appear in court on the date set for the hearing of the suit, the court may proceed to hear and determine the suit in the defendant’s absence. This means that the plaintiff may be granted a default judgment in their favour if the evidence presented suffices and convinces the court. The rationale behind this provision is to prevent the defendant from frustrating the plaintiff’s case by deliberately failing to attend court.
The second aspect of Order 10 pertains the consequences of default of defence. If a defendant has been served with a summons to appear in court and fails to file a statement of defence within the prescribed time, the plaintiff is at liberty to apply for judgment in default. This means that the plaintiff can ask the court to enter judgment in their favour without a trial because the defendant has not responded to the claim against them. The plaintiff must however provide proof of service of the summons on the defendant and show that the defendant has not filed a statement of defence. The court will then consider the evidence presented and grant judgment if it is satisfied that the plaintiff’s claim is valid.
Failure to Serve
The third limb of Order 10 deals with the consequences of failure to serve a statement of defence. If a defendant has filed an appearance in court but fails to serve a statement of defence on the plaintiff within the prescribed time, the plaintiff may apply to the court for judgment in default of defence. This means that the plaintiff can ask the court to enter judgment in their favour because the defendant has not responded to the plaintiff’s claim against them. The plaintiff must show that the defendant has not served a statement of defence on them and must provide proof of service of the summons on the defendant. The court will then consider the evidence presented and grant judgment if it is satisfied that the plaintiff’s claim is valid.
Order 10(4) provides that where judgment is entered in default of defence or service, the defendant may apply to the court to set aside the judgment. This means that the defendant can ask the court to revisit the judgment and set it aside if they have a valid reason for their failure to file a defence or serve the claimant with a defence. This sub rule aligns with the principles of natural justice (right to fair hearing and trial) and seeks to ensure that defendant’s are not unfairly prejudiced by the Plaintiff’s failure to effect proper service.
Importance of Order 10
Order 10 is essential in the Kenyan civil justice system as it ensures that litigants comply with the set legal criteria for defending their case in court. This order helps to ensure that cases are resolved quickly and efficiently, as it provides mechanisms for the court to grant judgment in default where a defendant has failed to defend the claim against them. This helps to prevent undue and unjustified delays in the court process and ensures that justice is delivered in a timely manner.
Order 10 also ensures that the court process is fair to both parties. If a defendant fails to appear or file a statement of defence, the court can still hear evidence from the plaintiff before making a decision. This means that despite non appearance or failure to file a defence, the court still has an obligation to put to test the evidence presented by the Plaintiff and consider the relevant legal principles. This ensures that the court process is fair and that judgments are based on the merits of each case.
Another importance of Order 10 is that it promotes the rule of law by ensuring that litigants comply with the legal requirements for defending their case in court. By providing consequences for non-appearance, default of defence, and failure to serve, the order encourages litigants to take their legal obligations seriously and to comply with the rules of the court. This helps to promote respect for the legal system and the rule of law in Kenya.
By Castro Owino; c.owino@mnwlaw.co.ke
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