Wakilii

Miyaji v Gulamhusein (C.A. 25-1929.)

East African Court of Appeal · [1929] EACA 20 · 1929 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from order dismissing objection proceedings on attachment before judgment
Decision
Appeal dismissed for want of leave to appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An order made in objection proceedings under Order 36, Rule 8 concerning attachment before judgment is not a decree as defined in the Civil Procedure Ordinance and is not included in the list of appealable orders under Order 40, Rule 1. Consequently, no appeal lies from such an order without leave of the court that made the order or the appellate court. Appeal dismissed for want of leave.

Outcome

Appeal dismissed for want of leave to appeal

Facts

The respondent obtained an attachment before judgment in a suit. The appellant, who was the wife of the defendant in the underlying suit, together with her two infant sons, brought objection proceedings claiming that the attached property had been transferred to them. The Supreme Court of Kenya dismissed the objection application with costs. The objectors appealed to the Court of Appeal for Eastern Africa without obtaining leave to appeal. The respondent raised a preliminary objection that the appeal did not lie without leave and no leave had been obtained.

Issues

  1. Whether an order made in objection proceedings under Order 36, Rule 8 is appealable without leave of court.
  2. Whether such an order constitutes a decree as defined in Section 2(4) of the Civil Procedure Ordinance.

Orders

  • Appeal dismissed on the ground that it does not lie without leave.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Orders in Objection Proceedings
An order made in objection proceedings taken under Order 36, Rule 8 concerning attachment before judgment is not a decree as defined in Section 2(4) of the Civil Procedure Ordinance, nor is it included in the list of appealable orders in Order 40, Rule 1, and consequently no appeal lies from such an order save with leave of the court making the order or of the appellate court.
Civil Procedure — Decrees — Definition — Objection Proceedings
Objection proceedings do not constitute a suit, and where the parties to the objection proceedings are not the parties to the underlying suit and the matter decided is not a matter in controversy in the suit, an order in such proceedings does not fall within the definition of a decree.
Civil Procedure — Attachment Before Judgment — Objection Proceedings — Remedy
Objection proceedings on attachment before judgment provide a speedy and summary remedy but do not deprive a claimant of the remedy by suit under Order 19, Rule 60.

Legislation cited (6)

  • Civil Procedure Ordinance No. 3 of 1924 s.2(4)
  • Kenya Civil Procedure Rules 1927 Order 36 Rule 8
  • Kenya Civil Procedure Rules 1927 Order 40 Rule 1
  • Kenya Civil Procedure Rules 1927 Order 40 Rule 2
  • Kenya Civil Procedure Rules 1927 Order 19 Rule 58
  • Kenya Civil Procedure Rules 1927 Order 19 Rule 60

Full judgment

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

Miyaji v Gulamhusein (C.A. 25-1929.) [1929] EACA 20 (1 January 1929)
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.