Wakilii

African Mercantile Co. Ltd v Patel (Civil Appeal No. 14 of 1927)

East African Court of Appeal · [1927] EACA 14 · 1927 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Resident Magistrate's ruling on preliminary objection to jurisdiction
Decision
Matter remitted to the Resident Magistrate at Mombasa for trial on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that an action lies in the Courts of Kenya under section 17 of the Civil Procedure Code against an absent defendant residing in Uganda, provided the defendant was duly served and the cause of action arose in Kenya. The defendant could have applied under section 20 to stay proceedings by giving written notice, but failed to do so.

Outcome

Matter remitted to the Resident Magistrate at Mombasa for trial on the merits

Facts

The plaintiff company, registered in London and carrying on business in Kenya, employed the defendant as branch manager at its Mbale branch. In August 1926, the defendant requested leave to go to India for four months. On 25 August 1926 at Mombasa, the defendant entered into a contract agreeing to return to the plaintiff's employment after his leave in consideration of the leave being granted. The plaintiff granted the leave and paid sums of money to the defendant. The defendant never returned to service and on 30 November 1926, before his leave expired, gave notice terminating his employment. The plaintiff sued for Sh. 1,379.88 in the Mombasa Court. The defendant, then residing and trading in Kampala, Uganda, objected to the jurisdiction of the Mombasa Court. The Resident Magistrate upheld the objection and dismissed the suit.

Issues

  1. Whether the Mombasa Court had jurisdiction to entertain a suit against a defendant resident in Uganda where the contract was made in Mombasa and the cause of action arose there.
  2. Whether the defendant's failure to give written notice under section 20 of the Civil Procedure Code to stay proceedings constituted acquiescence in the jurisdiction of the Mombasa Court.

Orders

  • Appeal allowed.
  • Case remitted to the Magistrate for trial.
  • Costs awarded to the appellant.

Rules and key headnotes

Civil Procedure — Jurisdiction — Territorial Jurisdiction — Suits Against Absent Defendants
Under section 17 of the Civil Procedure Code (1882), a Court has jurisdiction to entertain a suit against a defendant not resident within its territorial jurisdiction where the cause of action arose within that jurisdiction and the defendant was duly served with process.
Civil Procedure — Jurisdiction — Stay of Proceedings — Section 20 Civil Procedure Code
A defendant not resident within the jurisdiction who wishes to apply for a stay of proceedings under section 20 of the Civil Procedure Code must give notice in writing to the other parties of his intention to apply to the Court to stay proceedings. Failure to give such notice means the defendant cannot avail himself of section 20.
Contract Law — Jurisdiction — Place Where Cause of Action Arises
In suits arising out of contract, the cause of action arises at the place where the contract was made, or where it was to be performed, or where money to which the suit relates was expressly or impliedly payable, as provided by Explanation III to section 17 of the Civil Procedure Code.
Civil Procedure — Enforcement of Foreign Judgments — Judgments Extension Ordinance
The Judgments Extension Ordinance enables decrees obtained in the Courts of Kenya to be transferred to Uganda Courts for execution, but does not confer jurisdiction on Kenya Courts over defendants resident in Uganda. The Ordinance is concerned with enforcement of decrees after judgment, not with the conferral of jurisdiction.
Civil Procedure — Jurisdiction — Proviso to Section 17 — Multiple Defendants
The proviso in section 17 of the Civil Procedure Code requiring leave of the Court or acquiescence applies only where some defendants reside within the jurisdiction and others do not. It does not apply to cases where a single defendant or all defendants reside outside the jurisdiction but the cause of action arose within it.

Legislation cited (4)

  • Civil Procedure Code (1882) s.17
  • Civil Procedure Code (1882) s.20
  • Judgments Extension Ordinance (Uganda) Cap. 6 s.2
  • Civil Procedure Code (1908) s.20

Cases cited (11)

  • Gurdyal Singh v Raja of Faridkot (1895) 22 Cal 222
  • Emanuel v Symon [1908] 1 KB 302
  • Copin v Adamson (1874) LR 9 Ex 345
  • Feyerick v Hubbard (1902) 86 LT 829
  • Roussillon v Roussillon (1880) 14 Ch D 351
  • Jeannot v Fuerot (1909) 100 LT 816
  • Ashbury v Ellis [1893] AC 339
  • Turnbull v Walker (1882) 67 LT 763
  • Carrick v Hancock (1895) 12 TLR 55
  • Luckmee Chund v Zorathur Mull (1860) 8 Moo IA 291
  • Mahomedali Mulla Esmailji v. Alibhoi Jivanji Mamuji (VII E.A.L.R. p. 89)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

African Mercantile Co. Ltd v Patel (Civil Appeal No. 14 of 1927) [1927] EACA 14 (1 January 1927)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.