ANTI-GENDER-BASED VIOLENCE ACT: SUBSIDIARY LEGISLATION
INDEX TO
SUBSIDIARY LEGISLATION
Anti-Gender-Based Violence (Court) Rules
ANTI-GENDER-BASED VIOLENCE (COURT) RULES
[Section 40]
Arrangement of Rules
Rule
PART I
PRELIMINARY
PART II
FORM AND COMMENCEMENT OF APPLICATION OR ACTION
4. Commencement of application
PART III
SERVICE OF PROCESS AND PARTIES
7. Extension or abridgement of time
8. Joinder, misjoinder and non-joinder and substitution of parties
PART IV
PROTECTION ORDERS
9. Application for protection order
10. Application for leave of court to issue protection order without consent of victim
12. Application for modification or revocation of protection order
13. Application for extension of protection order to other persons
14. Issue of protection order by court's own motion
15. Conditions of protection order
17. Duration of occupation order
18. Application to discharge order
PART V
PROCEEDINGS OF THE COURT
21. Consolidation of applications
26. Interlocutory applications
PART VI
JUDGMENT, REVIEW AND APPEAL
30. Application for review to be made within seven days
32. Review not to operate as stay of execution
SI 8 of 2016.
PART I
PRELIMINARY
These Rules may be cited as the Anti-Gender-Based Violence (Court) Rules, 2016.
(1) These Rules apply to the civil procedure under the Anti-Gender-Based Violence Act, 2011, in the Subordinate Court.
(2) The Subordinate Courts (Civil Jurisdiction) Rules apply in the absence of a specific rule regarding any matter to be determined under the Act.
(1) In these Rules, unless the context otherwise requires—
"applicant" has the meaning assigned to it in the Act;
"court" has the meaning assigned to it in the Act;
"gender-based violence" has the meaning assigned to it in the Act;
"gender" has the meaning assigned to it in the Act;
"interim protection order" has the meaning assigned to it in the Act;
"occupation order" means an order made by the court pursuant to section 20 of the Act;
"place of safety" has the meaning assigned to it in the Act;
"protection order" has the meaning assigned to it in the Act; and
"respondent" has the meaning assigned to it in the Act.
PART II
FORM AND COMMENCEMENT OF APPLICATION OR ACTION
4. Commencement of application
(1) An application or action shall be commenced in Form I set out in the Schedule.
(2) An application shall be completed by the applicant or the applicant's representative.
(3) Where the applicant is—
(a) illiterate or for some other good reason unable to complete the application; and
(b) unable from lack of means or other good cause to instruct a legal representative;
the Clerk of court, a police officer, labour inspector, social worker, counsellor, medical practitioner, legal practitioner, nurse, religious leader, traditional leader, teacher, employer or other person or institution with information concerning the commission of an act of gender-based violence may complete the application on behalf of the applicant.
(4) The application shall be signed by the applicant or the applicant's representative and sworn in the presence of a Commissioner for Oaths.
(5) Where the applicant is unable to sign the applicant's name, it shall be sufficient if the applicant affixes the applicant's mark to the Complaint and Application Form in the presence of a Commissioner for Oaths or other duly authorised person who shall thereupon certify the said mark as being that of the applicant made in the Commissioner for Oath's presence.
PART III
SERVICE OF PROCESS AND PARTIES
Subject to these Rules, the Subordinate Courts (Civil Jurisdiction) Rules apply with respect to service of process or any document issued pursuant to these Rules and for which service is required.
The court shall issue a notice of the date, time and place for the hearing of the application to the applicant and the respondent within 14 days from the date of filing of the application.
7. Extension or abridgement of time
(1) The court may on application by a party to the proceedings, extend or abridge the time fixed for filing of documents, giving a notice or taking any other step in the proceedings.
(2) An application to extend or abridge the period referred to in sub-rule (1) must—
(a) be in writing;
(b) state the ground for applying for extension or abridgement; and
(c) be made before the expiration of the period fixed or allowed for extension of time.
8. Joinder, misjoinder and non-joinder and substitution of parties
(1) Subject to this rule, Order VIII of the Subordinate Court (Civil Jurisdiction) Rules applies to the joinder, misjoinder and non-joinder of parties.
(2) Where a party to proceedings has been incorrectly cited, the court may on application by the party concerned correct the error.
(3) Where in any proceedings it becomes necessary to substitute a party, that party may apply to the court for an order to substitute that party and the court may make an order or give directions as to the further conduct of the matter.
(4) A joinder, non-joinder, misjoinder, or substitution made pursuant to this rule shall not affect any prior steps taken in the proceedings.
(5) An application under this rule may be made in writing or orally.
PART IV
PROTECTION ORDERS
9. Application for protection order
(1) An application for a protection order shall be in Form II set out in the Schedule.
(2) Where an applicant is for any reason unable to apply for a protection order personally, any other person with information about the gender-based violence may apply for a protection order on behalf of the victim.
(3) Where gender-based violence involves a child or a person with a mental disability, the application shall be made by a next friend.
(4) A person who makes an application under subrule (2) shall obtain the victim's consent in writing, except where the victim—
(a) is a child;
(b) has a mental disability;
(c) is unconscious; or
(d) is a person whom the court is satisfied is for any other reason unable to provide consent.
(5) The application form for a protection order shall be issued by the Clerk of court who shall sign the application form and endorse the date of issue on it.
10. Application for leave of court to issue protection order without consent of victim
(1) A person may seek the leave of court to apply for a protection order without the consent of a victim.
(2) An application for leave under sub-rule (1) shall be in Form III set out in the Schedule.
(1) The court shall, where an application is made to the court for a protection order, issue an interim protection order if it considers the order to be in the best interest of the applicant.
(2) Where a person makes an application for a protection order ex parte, the application shall be in Form IV set out in the Schedule.
12. Application for modification or revocation of protection order
(1) An applicant or respondent may apply for the modification or revocation of a protection order.
(2) An application under sub-rule (1) shall be in Form V set out in the Schedule.
13. Application for extension of protection order to other persons
A person may apply for extension of a protection order to a person other than the applicant in Form VI set out in the Schedule.
14. Issue of protection order by court's own motion
A court before which criminal proceedings in relation to gender-based violence are pending may, on its own motion, considering the circumstances of the case, issue a protection order in respect of the victim.
15. Conditions of protection order
A protection order may include any of the conditions specified in section 15 of the Act.
Where the court, in granting a protection order, considers it expedient to issue an occupation order, the court may order a respondent to vacate the matrimonial home or other home which the respondent shares with the applicant and to continue to make rental, mortgage or other payments that the respondent was paying before the grant of the order and provide reasonable maintenance to the applicant.
17. Duration of occupation order
An occupation order shall not exceed three months in the first instance but may, for good cause shown, be extended, modified or rescinded on application by the applicant or respondent.
18. Application to discharge order
An applicant, respondent or person authorised under rule 4, may apply to discharge an order granted under these Rules in Form VII set out in the Schedule.
PART V
PROCEEDINGS OF THE COURT
(1) Subject to sub-rule (2), Order XXXI of the Subordinate Court (Civil Jurisdiction) Rules applies to non-attendance of parties at a hearing of an application under these Rules.
(2) An application for leave to restore a cause that has been struck out under this rule may be made within 14 days from the date the cause was struck out.
(1) An applicant may withdraw an application at any stage of the proceedings but before judgment.
(2) An applicant who intends to withdraw the application shall file a notice of withdrawal in writing to the court.
(3) The court shall serve a copy of the notice of withdrawal referred to in sub-rule (2) on the respondent.
21. Consolidation of applications
(1) Where more than one application is filed in court with respect to the same facts, an application to the court for an order that the applications be consolidated may be made.
(2) The court may consolidate the complaints under sub-rule (1) where the court considers it just to do so.
Where during the hearing of an application for a protection order or any application under the Act, the court is of the opinion that the presence of the respondent is likely to have a serious adverse effect on a victim or a witness, the court may take the following special measures—
(a) mount a movable screen in the chambers where the matter is being heard so as to separate the respondent from the victim or a witness;
(b) where practicable, provide video link facilities; or
(c) any other special measure it considers necessary to separate the parties.
(1) Evidence before the court may be given orally or by affidavit.
(2) Without restriction on the general powers of the court to provide special measures under rule 22, the court may give directions relating to—
(a) issues on which it requires evidence or submissions; and
(b) the nature of the evidence or submissions it requires.
(1) A party may call an expert to provide expert evidence.
(2) The expert shall, unless the court directs otherwise, at least seven days before the hearing, provide in writing or by witness statement a written report to the court which the expert intends to rely upon as the expert's evidence.
(3) The Clerk of the court shall serve a witness statement on the other party or parties.
(4) The court may request a report on a party and the report shall be prepared and submitted by a social worker, probation officer or other person appointed by the court.
(1) A party to proceedings may apply orally or in writing for an order to amend any document filed into court.
(2) The court shall, where it allows a party to amend the document, allow any other party affected by the amendment to file additional documents, consequential to the amendment, within a time period stipulated by the court.
26. Interlocutory applications
(1) Except where these rules otherwise provide, an application for directions of an interlocutory nature in connection with any proceedings shall be made by summons and accompanied by an affidavit in support.
(2) An application under this rule may be made ex parte or inter partes.
(3) An application granted ex parte shall be heard inter partes within seven days from the date of the grant of the application ex parte.
(4) Unless the court gives special leave to the contrary, there shall be at least two clear days between the service of summons and the day named in the notice for hearing the summons.
(5) A party who objects to an interlocutory application may within two days after the service, send written notice of the objection to the court.
(6) Where an application under this rule is made ex parte, the court may—
(a) grant the application pending an inter partes hearing;
(b) not grant the application but order that the application be heard inter partes; or
(c) refuse to grant the application.
(7) A party affected by an ex parte order may, within seven days after service of the order, or within such further time as the court may allow, apply by inter partes summons to the court to vary or discharge the order.
(1) Where the parties agree upon the terms of an order to be made by the court, the particulars of the terms agreed upon shall be in writing and signed by the parties, their legal representatives or their agents.
(2) The parties shall file the terms agreed upon in the consent order to the court and the court may make an order in accordance with the terms in the absence of the parties.
PART VI
JUDGMENT, REVIEW AND APPEAL
(1) The decision of the court in any matter before the court shall be given in writing and availed to the parties within seven days from the date of the decision.
(2) The court may at any time correct any clerical mistake or other accidental slip or omission in a decision or record.
(3) The judgment of the court shall be made by the court within 28 days of the conclusion of the hearing of the matter or application.
(1) The court may, upon such grounds as it considers sufficient, either on application by a party or of its own motion, review any judgment or decision given by the court except where an appeal shall have been entered by any party, and such appeal is not withdrawn.
(2) A court may on review open and rehear the cause or matter wholly or in part and take fresh evidence and reverse, vary or confirm its previous judgment or decision.
(3) The court shall not rehear any evidence or take any fresh evidence unless the court has reason to believe that there has been a miscarriage of justice.
30. Application for review to be made within seven days
(1) Any application by a party for review of a judgment or decision shall be made not later than seven days after such judgment or decision.
(2) After the expiration of 14 days, an application for review shall not be admitted except by special leave of the court and on such terms as to the court seem just.
(1) The court shall not proceed of its own motion to review any judgment or decision under this rule until it has served notice of its intention to do so on all parties and until all such parties have had an opportunity to appear before it and be heard.
(2) A notice to review shall be served on all the parties concerned within 14 days after the judgment or decision which the court has decided to review.
32. Review not to operate as stay of execution
The application of any party or the decision of the Court to review of its own motion shall not of itself operate as a stay of execution, unless the court so orders, and such order may be made upon such terms as the court may consider necessary.
(1) A person aggrieved by the decision of the court may appeal to the High Court within 30 days from the date on which the decision was made.
(2) A notice of appeal shall be in Form VIII set out in the Schedule.
(3) An application to appeal out of time shall be made with the leave of court in accordance with the Subordinate Courts Act.
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