Wakilii

Mohamedbhai and Co. Ltd v Ghani (Civil Appeal No. 67 of 1951, consolidated with Civil Appeal No. 70 of. 1951)

East African Court of Appeal · [1952] EACA 38 · 1952 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated appeals from orders of the Supreme Court of Kenya, with preliminary objection raised as to competency of appeals
Decision
Appeals dismissed as incompetent for failure to appeal against a formal order as required by the Kenya Civil Procedure Ordinance

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that an appeal against an order of the Supreme Court of Kenya cannot be entertained unless it appeals against a formal order as defined by section 2 of the Kenya Civil Procedure Ordinance. An order means the formal expression of any decision of a civil court which is not a decree. Where no formal order has been drawn up and the appeal is against the Judge's reasons only, the appeal is incompetent. The 1935 amendment extending appealability to judgments not formally drawn up as decrees did not extend to orders. Both appeals were dismissed with costs.

Outcome

Appeals dismissed as incompetent for failure to appeal against a formal order as required by the Kenya Civil Procedure Ordinance

Facts

The appellants in two consolidated appeals appealed against orders of the Supreme Court of Kenya. In neither case did the appellants draw up a final formal order as defined by section 2 of the Kenya Civil Procedure Ordinance. Instead, the memoranda of appeal were filed against the reasons given by the Judge for his decision. The respondents in both appeals raised a preliminary objection that the appeals were incompetent because they did not appeal against a formal order. In Civil Appeal 67 of 1951, after the preliminary objection was upheld in the companion appeal, counsel for the appellant obtained a formal expression of the order and sought permission to file it, but the Court refused on the ground that the defect existed at the time the memorandum of appeal was filed.

Issues

  1. Whether an appeal can be entertained by the Court of Appeal for Eastern Africa when it is entered against reasons given by a Judge rather than against a formal order as defined by section 2 of the Kenya Civil Procedure Ordinance.
  2. Whether the subsequent obtainment of a formal order after filing a memorandum of appeal can cure a defect existing at the time of filing.

Orders

  • Preliminary objection upheld.
  • Appeals dismissed with costs.

Rules and key headnotes

Civil Procedure — Appeals — Competency — Requirement of Formal Order
An appeal to the Court of Appeal for Eastern Africa from an order of the Supreme Court of Kenya is not competent unless it appeals against a formal order as defined by section 2 of the Kenya Civil Procedure Ordinance, which requires the formal expression of any decision of a civil court which is not a decree.
Civil Procedure — Appeals — Distinction Between Judgment, Decree, and Order
The term 'order' as defined in section 2 of the Kenya Civil Procedure Ordinance means the formal expression of any decision of a civil court which is not a decree. The 1935 amendment extending appealability to judgments not formally drawn up as decrees applies only to decrees and does not extend to orders.
Civil Procedure — Appeals — Jurisdiction of Appellate Court
The Court of Appeal for Eastern Africa can only entertain an appeal in civil matters by reason of a provision in the municipal law of the Territory from which the appeal emanates under which the appellant can show a right to prefer an appeal to the Court.
Civil Procedure — Appeals — Curing Defects — Subsequent Obtainment of Formal Order
The subsequent obtainment of a formal order after filing a memorandum of appeal does not cure a defect that existed at the time the memorandum was filed, where the appeal did not disclose on its face a matter concerning which an appeal could lie under municipal law.

Legislation cited (4)

  • Kenya Civil Procedure Ordinance s.2
  • Kenya Civil Procedure Ordinance s.66
  • East African Court of Appeal Order in Council, 1950 s.16(1)
  • Civil Procedure (Amendment No. 2) Ordinance, 1935 (Ordinance 29 of 1935) s.2

Cases cited (6)

  • Munshiram & Co v Star Soda Water Factory (16 K.L.R. (1934) 5)
  • Jivanji v Jivanji (12 K.L.R. 41)
  • Ribiero v S. E. Facko [1936] A.C. 300
  • Aluminium Union Ltd v Narandas (1937) 4 E.A.C.A. 20
  • Ribiero v Sequiera (1 E.A.C.A. 1)
  • Mrs. Friedericke Kropach v Reginald Falkner and another (Civil Appeal No. 28 of 1951)

Full judgment

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

Mohamedbhai and Co. Ltd v Ghani (Civil Appeal No. 67 of 1951, consolidated with Civil Appeal No. 70 of. 1951) [1952] EACA 38 (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.