Wakilii

Mohamerbhai v Hon. Commissioner of Lands for the Colony and Protectorate of Kenya (C.C. No - 14-1936 (Mombasa))

East African Court of Appeal · [1936] EACA 148 · 1936 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Motion to strike out demurrer in a petition of right claim against the Government
Decision
Demurrer struck out; defendant ordered to enter appearance and file defence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that once the Governor's fiat is obtained under Cap. 17 of the Laws of Kenya, a petition of right proceeds as an ordinary civil action governed by the Civil Procedure Ordinance and Rules of Court. Since Kenya's civil procedure does not recognize demurrer, the Attorney General cannot enter a demurrer in such proceedings. The demurrer was struck out with costs.

Outcome

Demurrer struck out; defendant ordered to enter appearance and file defence

Facts

The plaintiff, as trustee of the Bohra Community of Lamu, instituted a plaint against the defendant claiming ownership of certain lands in Kenya and damages of Sh. 200 for a door allegedly removed by a district commissioner. The plaint was endorsed with the Governor's fiat under Cap. 17 s.5 of the Laws of Kenya. The Attorney General, on behalf of the Government, entered a demurrer to the plaint. The plaintiff moved to strike out the demurrer and for an order that the defendant file a defence.

Issues

  1. Whether the Attorney General can enter a demurrer in a petition of right claim against the Government of Kenya under Cap. 17 of the Laws of Kenya.

Orders

  • Motion allowed with costs.
  • Demurrer struck out.
  • Defendant at liberty to enter an appearance within ten days.
  • Defendant to file a defence within ten days of entering appearance.

Rules and key headnotes

Civil Procedure — Petition of Right — Demurrer — Availability under Kenya Law
In a claim in the nature of a petition of right against the Government of Kenya or any servant thereof, the Attorney General cannot enter a demurrer where the claim is governed by Cap. 17 of the Laws of Kenya and the Civil Procedure Ordinance.
Civil Procedure — Petition of Right — Procedure after Governor's Fiat
Once the Governor's fiat is obtained under Cap. 17 s.5 of the Laws of Kenya, a petition of right proceeds as an ordinary civil action in the Supreme Court, governed by the Civil Procedure Ordinance and Rules of Court.
Civil Procedure — Demurrer — Non-Recognition in Kenya
The civil procedure in Kenya does not recognize demurrer as a procedural step; the proper course of an action is plaint, entry of appearance, and defence.

Legislation cited (5)

  • Laws of Kenya Cap. 17 s.3
  • Laws of Kenya Cap. 17 s.4
  • Laws of Kenya Cap. 17 s.5
  • Laws of Kenya Cap. 17 s.8
  • Civil Procedure Ordinance 1924

Cases cited (1)

  • Rainey v The General Manager, Uganda Railway (9 E.A.L.R. 58)

Full judgment

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

Mohamerbhai v Hon. Commissioner of Lands for the Colony and Protectorate of Kenya (C.C. No - 14-1936 (Mombasa)) [1936] EACA 148 (1 January 1936)
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.