Wakilii

Boero and Co. (E.A.) Ltd v Mohamed (Civil Suit No. 1742 of 1953)

East African Court of Appeal · [1954] EACA 25 · 1954 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Oral application for execution order under section 94 of the Civil Procedure Ordinance after judgment but before decree
Decision
Oral application dismissed as incompetent, though court indicated it would have succeeded on merits if properly made

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An oral application for execution of a decree under section 94 of the Civil Procedure Ordinance, made after judgment but before decree, is incompetent. Section 94 contemplates an application after decree has been passed, not after judgment but before decree. An application for execution of the principal sum before ascertainment of costs must be made in writing in accordance with Order 21, rule 7(2), not orally in open court.

Outcome

Oral application dismissed as incompetent, though court indicated it would have succeeded on merits if properly made

Facts

The plaintiff company obtained judgment against the defendant under Order 35, rule 2. After judgment was entered but before any decree was drawn up and signed, the plaintiff's advocate applied orally in open court for an order under section 94 of the Civil Procedure Ordinance that the decree be executed forthwith before costs were ascertained by taxation, with costs to be executable once ascertained. The grounds were that delays of eight weeks in taxing costs were unavoidable due to pressure of work in the Supreme Court Registry. The court reserved its ruling on whether an oral application was competent.

Issues

  1. Whether an oral application for execution of a decree under section 94 of the Civil Procedure Ordinance is competent when made after judgment but before decree is passed.
  2. Whether an application for execution of the principal sum before ascertainment of costs should be made in writing in terms of Order 21, rule 7(2).

Orders

  • Oral application dismissed.
  • No order as to costs of the oral application.

Rules and key headnotes

Civil Procedure — Execution — Timing of Application under Section 94
Section 94 of the Civil Procedure Ordinance contemplates an application to the court for an order for execution in an exceptional manner after decree has been passed, not after judgment but before decree.
Civil Procedure — Execution — Form of Application
An application for execution forthwith of the principal sum in a decree before ascertainment of costs must be made in writing in terms of Order 21, rule 7(2), not orally in open court.
Civil Procedure — Judgment and Decree — Distinction
There is a wide distinction in Kenyan procedural law between a judgment and a decree, with the decree following upon the judgment in terms of the judgment and including costs as awarded.
Civil Procedure — Applications to Court — Written Form Required
Unless oral application is specifically allowed by the rules, all applications to the court must be by motion and after notice in accordance with Order 50, rule 1, save where otherwise expressly provided.

Legislation cited (9)

Cases cited (2)

  • Forster v Baker [1910] 2 KB 636 (CA)
  • Rothschild v Fisher [1920] 2 KB 243 (CA)

Full judgment

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

Boero and Co. (E.A.) Ltd v Mohamed (Civil Suit No. 1742 of 1953) [1954] EACA 25 (1 January 1954)
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.