Wakilii

Gihir v Batten (Civil Suit No. 1810 of 1953)

East African Court of Appeal · [1954] EACA 77 · 1954 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside default judgment
Decision
Application allowed to proceed under correct rule for consideration on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court held that although the applicant moved under the wrong rule (Order 9, rule 24 instead of Order 9, rule 10), there is no rule of law or practice forbidding recourse to the proper rule at the hearing. A party asking for an order from the court is not bound to state under which rule or order they propose to move, although it is good practice to do so. The application was allowed to proceed on its merits under the correct rule.

Outcome

Application allowed to proceed under correct rule for consideration on merits

Facts

The applicant applied to have what he termed an ex parte judgment set aside, but the judgment on record was actually a default judgment entered for non-appearance. The notice of motion was headed Order 9, rule 24. At the hearing, the applicant submitted he could have recourse to Order 9, rule 10 as the appropriate rule. The respondent objected that no such recourse was open to the applicant, arguing the application had been brought under the wrong rule and could not be amended at the hearing.

Issues

  1. Whether an applicant who has applied under the wrong rule may have recourse at the hearing to the right rule.
  2. Whether a notice of motion must contain reference to a specific rule or order.

Orders

  • Application allowed to proceed under the correct rule (Order 9, rule 10) despite having been brought under the wrong rule (Order 9, rule 24).
  • Application to be considered on its merits.

Rules and key headnotes

Civil Procedure — Notice of Motion — Amendment of Rule Reference at Hearing
Where an applicant has moved under the wrong rule, there is no rule of law or practice forbidding recourse to the proper rule at the hearing and having the application considered on its merits.
Civil Procedure — Notice of Motion — Contents and Form Requirements
In asking for an order from the court, a party is not bound to state under which rule or order they propose to move, although it is good practice to do so. Neither the Civil Procedure Rules nor the Civil Procedure Ordinance makes such reference mandatory.

Legislation cited (5)

  • Civil Procedure (Revised) Rules 1948 Order 9 rule 24
  • Civil Procedure (Revised) Rules 1948 Order 9 rule 10
  • Civil Procedure (Revised) Rules 1948 Order 50 rule 1
  • Civil Procedure (Revised) Rules 1948 Order 50 rule 3
  • Civil Procedure (Revised) Rules 1948 Order 47 rule 3

Cases cited (1)

  • In re Barker's Estate (1879) 10 Ch D 162

Full judgment

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

Gihir v Batten (Civil Suit No. 1810 of 1953) [1954] EACA 77 (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.