Wakilii

O'dell v Thompson and Others (Civil Appeal No. 38 of 1954)

East African Court of Appeal · [1955] EACA 177 · 1955 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya decision on originating summons concerning construction of will
Decision
Appeal dismissed for incompetence due to absence of formal order at time of filing

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

An adjudication upon an originating summons under Order 36 of the Civil Procedure Rules is an order and not a decree. Where no formal order has been drawn up at the date of filing a memorandum of appeal, the appeal is incompetent. Order 42 rule 1(1)(o) expressly provides for appeals from orders made on originating summonses and is not ultra vires the Civil Procedure Ordinance. The definitions of decree and order in the Civil Procedure Ordinance are mutually exclusive, and exception (a) in the definition of decree excludes adjudications from which an appeal lies as from an order.

Outcome

Appeal dismissed for incompetence due to absence of formal order at time of filing

Facts

The executors and trustees of the will of Harry Edward Watts deceased filed an originating summons in the Supreme Court of Kenya. The respondent was Violet O'Dell, a legatee under the will. The question was whether the will bequeathed to O'Dell one or two legacies of £1,000 each. The trial judge delivered a reasoned judgment on 10 March 1954 construing the will as bequeathing one legacy only. He made no immediate order as to costs. On 31 August 1954 the parties agreed costs, and on 20 September 1954 the judge ordered costs as agreed. The appeal was filed on 7 June 1954, before any formal order had been extracted. The memorandum of appeal described it as an appeal from the declaration dated 10 March 1954 and attached a certified copy of the judgment. The residuary legatees, Eric Simmons and William James Simmons, had been served with the originating summons and appeared by advocate but were not added as parties in the title of the suit.

Issues

  1. Whether the appeal was competent where no formal order had been extracted at the date of filing the memorandum of appeal.
  2. Whether an adjudication on an originating summons under Order 36 of the Civil Procedure Rules constitutes a decree or an order.
  3. Whether Order 42 rule 1(1)(o) of the Civil Procedure Rules is ultra vires the Civil Procedure Ordinance.

Orders

  • Appeal dismissed as incompetent.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Appeals — Competency — Requirement for Formal Order
An appeal from an adjudication on an originating summons is incompetent if no formal order has been drawn up and extracted at the date of filing the memorandum of appeal.
Civil Procedure — Originating Summons — Nature of Adjudication — Decree versus Order
An adjudication upon an originating summons under Order 36 of the Civil Procedure Rules is an order and not a decree, notwithstanding that it may conclusively determine the rights of the parties.
Statutory Interpretation — Civil Procedure Rules — Definitions of Decree and Order — Mutual Exclusivity
The definitions of decree and order in section 2 of the Civil Procedure Ordinance are mutually exclusive. Exception (a) in the definition of decree excludes any adjudication from which an appeal lies as an appeal from an order.
Civil Procedure — Appeals — Order 42 Rule 1(1)(o) — Validity
Order 42 rule 1(1)(o) of the Civil Procedure Rules, which provides for an appeal as of right from an order made upon the hearing of an originating summons under Order 36, is not ultra vires the Civil Procedure Ordinance. The Ordinance itself contemplates the making of rules regulating the right of appeal from orders.
Civil Procedure — Parties — Service and Addition to Title
Persons upon whom an originating summons is served and who appear by advocate and are heard on the merits should be formally added as parties in the title of the suit to avoid confusion.
Civil Procedure — Decrees — Dating
It is more convenient that a decree should bear both the date of the adjudication of which it is the formal expression and the date on which it was extracted.

Legislation cited (7)

  • Civil Procedure Ordinance s.66
  • Civil Procedure Ordinance s.2
  • Civil Procedure Ordinance s.75
  • Civil Procedure (Revised) Rules Order 20 rule 7
  • Civil Procedure (Revised) Rules Order 36 rules 1, 5 and 7
  • Civil Procedure (Revised) Rules Order 42 rule 1(1)(o)
  • East African Court of Appeal Rules 1925 rule 6(2)

Cases cited (5)

  • Apollo Kalibala Sewava v E M Kawalya Kagwa and Others (Civil Appeal No. 30 of 1954)
  • Alamanzane Sebuliba v Abdul S Jaffer (Civil Appeal No. 25 of 1953)
  • Mohamedbhai & Co Ltd v Yusuf Abdul Ghani (1952) 19 EACA 38
  • Mansion House Ltd v Wilkinson (21 EACA 98)
  • Saint Benoist Plantations Ltd v Felix (21 EACA 105)

Full judgment

↓ Download PDF

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

O'dell v Thompson and Others (Civil Appeal No. 38 of 1954) [1955] EACA 177 (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.