Wakilii

Marwaha v Nath and Another (Civil Case No. 599 of .1952)

East African Court of Appeal · [1952] EACA 286 · 1952 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by second defendant to strike out his name under Order 1, rule 10(2) Civil Procedure Rules before filing defence
Decision
Application to strike out second defendant dismissed; matter to proceed with both defendants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application under Order 1 rule 10(2) to strike out a defendant on the ground of Crown immunity from tort is misconceived. Where the ground for striking out amounts to a defence on a point of law, the proper procedure is to file a defence pleading that point under Order 6 rule 27. The court will not decide questions of right on applications under Order 1 rule 10(2). Application dismissed with costs.

Outcome

Application to strike out second defendant dismissed; matter to proceed with both defendants

Facts

The plaintiff sued the first defendant as a contractor and the second defendant (Postmaster General, Nairobi) for injuries sustained when he fell into a ditch dug on land used as a public footpath. The works were executed by the first defendant as contractor employed by the second defendant. The plaintiff alleged both defendants failed in their duty to keep the ditch safe by covering it or providing warning lights. The second defendant entered conditional appearance and applied under Order 1 rule 10(2) to be struck out before filing defence, arguing he was an emanation of the Crown at the time of the incident in May 1951 and thus not liable in tort, as the East African Posts and Telecommunications Act 1951 which made him a corporation sole with statutory liability in tort only came into force in October 1951.

Issues

  1. Whether an application under Order 1, rule 10(2) Civil Procedure Rules is the proper procedure to raise a defence based on Crown immunity from tortious liability.
  2. Whether the Postmaster General could be struck out as a defendant on the ground that he was not liable in tort at the time the cause of action arose.

Orders

  • Application dismissed.
  • Costs awarded to both respondents.

Rules and key headnotes

Civil Procedure — Striking Out Parties — Order 1 rule 10(2) — Improper Use for Raising Defence on Point of Law
An application under Order 1 rule 10(2) to strike out a defendant is misconceived where the ground for striking out amounts in substance to a defence on a point of law rather than improper joinder of parties.
Civil Procedure — Defence on Point of Law — Proper Procedure under Order 6 rule 27
Where a defendant seeks to raise non-liability on a point of law, the proper procedure is to file a defence pleading that point under Order 6 rule 27, which provides for any party to raise any point of law by pleading and for such point to be set down for hearing before trial by consent or court order.
Civil Procedure — Order 1 rule 10(2) — Scope and Limitations — Questions of Right
The court will not decide questions of right on applications under Order 1 rule 10(2), including the question whether a plaintiff has a right to sue the Crown in tort.

Legislation cited (3)

Cases cited (2)

  • (1875) W.N. 203
  • Proctor v Cheshire County Council (1891) W.N. 43

Full judgment

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

Marwaha v Nath and Another (Civil Case No. 599 of .1952) [1952] EACA 286 (1 January 1952)
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.