Wakilii

Markus v Czeczowiczka (C.A. 36-1933.)

East African Court of Appeal · [1937] EACA 17 · 1937 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from a receiving order made under section 99 of the Bankruptcy Ordinance, 1930, following an application for execution by arrest and imprisonment for non-payment of a judgment debt
Decision
Receiving order set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that Order XIX, Rule 37(1) must be construed to relate to the whole amount of the decree where no instalment order has been made. To ground a committal, there must first be an order to pay the amount the debtor is capable of paying, coupled with refusal or neglect to pay that sum after means have been established. In the circumstances, there was no power to commit and therefore no power to make a receiving order under section 99 of the Bankruptcy Ordinance, 1930. Appeal allowed.

Outcome

Receiving order set aside

Facts

The respondent obtained a judgment decree against the appellant in Civil Case No. 132 of 1929 on 20 June 1933 for 236,205 shillings 52 cents. On 17 October 1933, the judgment creditor applied for execution by arrest and imprisonment. A notice to show cause was issued on 2 November 1933. At the hearing, the judgment creditor sought committal for six months or alternatively a receiving order under section 99 of the Bankruptcy Ordinance, 1930. The judgment debtor admitted receiving a salary of £750 per annum and possessing a judgment from the German Czechoslovak Mixed Tribunal against the German Reich, which the judgment creditor had attached in Germany. The trial judge, satisfied that the debtor had means to pay part of the debt, made a receiving order on 8 November 1933. The appellant appealed on the ground that there was no evidence he had means to pay any part of the decretal amount.

Issues

  1. Whether Order XIX, Rule 37(1) of the Kenya Civil Procedure Rules must be construed to relate to the whole amount of the decree where no order to pay instalments has been made.
  2. Whether a committal order can be made where a judgment debtor has means to pay only part of the decretal amount.
  3. Whether the Court had power to make a receiving order under section 99 of the Bankruptcy Ordinance, 1930, in the absence of power to commit.

Orders

  • Appeal allowed.
  • Receiving order set aside.
  • Costs awarded to the appellant in this Court and the Court below.

Rules and key headnotes

Civil Procedure — Execution — Committal for Non-Payment — Interpretation of Order XIX Rule 37(1)
Order XIX, Rule 37(1) of the Kenya Civil Procedure Rules must be construed to relate to the whole amount of the decree where no order to pay instalments has been made.
Civil Procedure — Execution — Committal for Non-Payment — Conditions Precedent
To ground a committal order, there must first be an order to pay the amount which the debtor is shown to be capable of paying, coupled with a refusal or neglect to pay the sum so ordered after means to pay have been established.
Civil Procedure — Execution — Committal — Nature of Power
A committal order under Order XIX, Rule 37 is a punitive order, a punishment for contempt, and not merely a means of enforcing payment. There must be something in the nature of delinquency shown before the order should issue.
Commercial Law — Bankruptcy — Receiving Order — Jurisdiction
Where the Court has no power to commit a judgment debtor for non-payment of a decree, it has no power to make a receiving order under section 99 of the Bankruptcy Ordinance, 1930.
Civil Procedure — Execution — Inability to Pay — Interpretation
The inability to pay under Order XIX, Rule 37(1) is in respect of the decretal amount as a whole. There is no contempt if the debtor has neglected to pay only a part, where the order is to pay the whole.

Legislation cited (8)

  • Kenya Civil Procedure Rules Order XIX Rule 37
  • Kenya Civil Procedure Rules Order XIX Rule 34(1)
  • Kenya Civil Procedure Rules Order XVIII Rule 11(1)
  • Kenya Bankruptcy Ordinance 1930 s.99
  • Civil Procedure Ordinance s.38
  • Civil Procedure Ordinance s.42(1)
  • Debtors Act 1869 s.5
  • Debtors Act 1869 s.5(2)

Cases cited (4)

  • In re Fryer (1886) 17 Q.B.D. 718
  • In re Fryer (1886) 17 Q.B.D. 718
  • In re Edgcome (1902) 2 K.B. 403
  • Linton v. Linton

Full judgment

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Markus v Czeczowiczka (C.A. 36-1933.) [1937] EACA 17 (1 January 1937)
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.