Wakilii

Ngumi v Muthui (Civil Appeal No. 16 of 1953)

East African Court of Appeal · [1955] EACA 43 · 1955 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya decision reinstating a suit after dismissal for failure to furnish security
Decision
Dismissal of the suit for failure to furnish security upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application to reinstate a suit under Order XXV, rule 2(2) after dismissal for failure to furnish security is not an application for review under Order XLIV and need not be made to the judge who dismissed the suit. Mere lack of funds does not constitute 'sufficient cause' for failure to furnish security within the time allowed. Appeal allowed; order reinstating the suit set aside.

Outcome

Dismissal of the suit for failure to furnish security upheld

Facts

The plaintiff's suit was dismissed when he failed to appear at hearing. The suit was reinstated on terms including furnishing security of Sh. 1,000 by 25th April 1952. The plaintiff tendered a bond instead of cash, which the Registrar refused. The plaintiff later lodged cash on 28th April, three days late. On the defendant's motion, Harley J. dismissed the action under Order XXV, rule 2(1) for non-compliance. The plaintiff applied to Mayers J. to reinstate under Order XXV, rule 2(2), which was granted. The defendant appealed, arguing the application should have been made to Harley J. and that lack of funds was not sufficient cause for the delay.

Issues

  1. Whether an application to reinstate a suit under Order XXV, rule 2(2) is governed by the procedure for a review of judgment under Order XLIV.
  2. Whether lack of funds constitutes 'sufficient cause' for failure to furnish security within the time allowed under Order XXV, rule 2(2).

Orders

  • Appeal allowed.
  • Order of Mayers, J., dated 14th January 1953 set aside, save in so far as it orders that the plaintiff should pay the defendant's costs of the application.
  • Order of Harley, J. to stand.
  • Costs of the appeal to the appellant.

Rules and key headnotes

Civil Procedure — Security for Costs — Application to Reinstate After Dismissal — Jurisdiction
An application to reinstate a suit under Order XXV, rule 2(2) after dismissal for failure to furnish security is not an application for review under Order XLIV and may be heard by a judge other than the one who dismissed the suit.
Civil Procedure — Security for Costs — Dismissal Under Order XXV Rule 2(1) — Nature of Order
Where a suit is dismissed under Order XXV, rule 2(1) for failure to furnish security, the dismissal is automatic and does not require the exercise of judicial discretion, distinguishing it from orders subject to review under Order XLIV.
Civil Procedure — Security for Costs — Sufficient Cause — Lack of Funds
Mere lack of funds does not constitute 'sufficient cause' for failure to furnish security within the time allowed under Order XXV, rule 2(2).
Civil Procedure — Security for Costs — Compliance with Order — Cash Lodgment Distinguished from Bond
Where a court orders lodgment of a specific sum in cash as security, tender of a bond does not constitute compliance with the order, even if tendered within the time allowed.

Legislation cited (8)

  • Civil Procedure (Revised) Rules Order XXV rule 2(1)
  • Civil Procedure (Revised) Rules Order XXV rule 2(2)
  • Civil Procedure (Revised) Rules Order XLIV rule 1
  • Civil Procedure (Revised) Rules Order XLIV rule 2
  • Civil Procedure (Revised) Rules Order XLIV rule 3
  • Civil Procedure (Revised) Rules Order XLIV rule 6
  • Civil Procedure (Revised) Rules Order IX rule 20
  • Civil Procedure (Revised) Rules Order IX rule 24

Cases cited (2)

  • Ratngopal Sahu v Barsati Singh (1908/9) 36 IA 27
  • Shahir Din v. Ram Parkash Anand post, page 48

Full judgment

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

Ngumi v Muthui (Civil Appeal No. 16 of 1953) [1955] EACA 43 (1 January 1955)
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.