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DISTRICT COURT (CIVIL PROCEDURE) RULES, 2004

 

      Rule        

 


 

ORDER 27

DELAY AND DISCONTINUANCE

 

Duty to avoid delay

1. It is the duty of the parties, their lawyers and the Court to avoid unnecessary adjournments and other delays and ensure that causes or matters are disposed of as speedily as the justice of the case permits.

Proceedings after delay

 Notice of intention to proceed

2. Where six months have elapsed since the last step was taken in any cause or matter, the party who wishes to proceed shall give to every other party not less than twenty eight days notice of the intention to proceed.

Striking out for delays

3. (1) Where in a cause or matter a step has not been taken for twelve months from the date of the last proceedings and a notice under rule 2 has not been given, the Registrar shall or any party to the cause or matter may apply to the Court for an order that the cause or matter be struck out for want" of prosecution.

- (2) Notice of the application shall be served on all the parties con­cerned at least fourteen days before the day stated in the notice or hearing of the application.                                       

         (3) On the hearing of the application, and on proof of service of the notice on all parties concerned, the Court shall strike out the cause or matter If none of the parties shows cause to the satisfaction of the Court why the cause or matter should not be struck out.

(4) If a party shows cause to the satisfaction of the Court why the cause or matter should not be struck out for want of prosecution, the Court shall order the proceedings to continue on terms that the Court thinks fit.

Withdrawal or discontinuance

4. (l) A party may withdraw or discontinue a case or action by either writing to the Registrar of the Court or by making an oral application to the magistrate when the case is being heard.

(2) The Court on receipt of a notice of discontinuance shall strike out the action as discontinued, subject to the award of costs.

Discontinuance does not abate Counterclaim

5. Where there is a counterclaim, the Magistrate shall explain to the plaintiff that the defendant's counterclaim shall not abate by reason only of the plaintiff's discontinuance.

Effect of discontinuance                   ~

6. Discontinuance or withdrawal shall not be a defence to any subsequent action by either party.

Stay of subsequent action

7. Where a subsequent action is brought for the same or substantially the same cause of action before the costs of the discontinued action are paid, the Court may on the application of the party affected order a stay of the subsequent action until the costs are paid.

Meaning of withdrawal and discontinuance

8. In this rule the term withdrawal means the termination of only part of the claim whereas discontinuance means that the entire claim is abandoned.

 

 

 

 

 

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