Wakilii

Walji and Others v Shankerdass (C.A. 35-1932.)

East African Court of Appeal · [1933] EACA 3 · 1933 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya garnishee proceedings following discharge of garnishee order nisi
Decision
Garnishee proceedings dismissed; prohibitory order declared invalid

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that a prohibitory order issued under Order XXXVI before judgment is invalid in garnishee proceedings. Order XXXVI deals with attachment before judgment of property in the possession of the defendant and is inapt to deal with garnishee proceedings under Order XX. Since the prohibitory order was invalid, there could be no attachment in the hands of a third party until a valid garnishee order was obtained, and by that time no debt was owing.

Outcome

Garnishee proceedings dismissed; prohibitory order declared invalid

Facts

The respondent obtained judgment against Wali Mohamed and Miran Bux for Sh. 8,297/41 on 1 September 1931. Before judgment, on 13 June 1931, a prohibitory order was issued under Order XXXVI restraining the appellants from paying Sh. 3,500 to the judgment debtors. On 17 November 1931, a garnishee order nisi issued under Order XX against the appellants. The garnishee order nisi was discharged on 26 January 1932 on the ground that the garnishees had no money belonging to the judgment debtors at the time of the garnishee order. On appeal, the Court of Appeal remitted the matter to determine whether the garnishees had money at the time of the prohibitory order and whether that constituted present indebtedness under Order XX. The Supreme Court found the garnishees had Sh. 1,493/47 at the time of the prohibitory order and that this constituted present indebtedness. The appellants appealed, challenging the validity of the prohibitory order.

Issues

  1. Whether a prohibitory order issued under Order XXXVI before judgment is valid in garnishee proceedings.
  2. Whether the garnishees had money belonging to the judgment debtors in their hands at the time of service of the prohibitory order.
  3. Whether money held at the time of a prohibitory order constitutes present indebtedness within the meaning of Order XX.

Orders

  • Appeal allowed.
  • Costs awarded to the appellants in the Court of Appeal and in the Supreme Court.

Rules and key headnotes

Civil Procedure — Garnishee Proceedings — Prohibitory Orders — Validity of Order XXXVI Before Judgment
A prohibitory order issued under Order XXXVI before judgment is invalid in garnishee proceedings because Order XXXVI deals with attachment before judgment of property in the possession of the defendant and is inapt to deal with matters that come within garnishee proceedings under Order XX.
Civil Procedure — Garnishee Proceedings — Present Indebtedness — Timing of Attachment
There can be no question of attaching anything in the hands of a third party until a valid garnishee order has been obtained under Order XX; an invalid prohibitory order cannot create present indebtedness for the purposes of garnishee proceedings.

Legislation cited (3)

  • Civil Procedure Ordinance s.47
  • Kenya Civil Procedure Rules Order XX
  • Kenya Civil Procedure Rules Order XXXVI Rule 11

Cases cited (2)

  • 4 Born. 826
  • 19 Bom. 544

Full judgment

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

Walji and Others v Shankerdass (C.A. 35-1932.) [1933] EACA 3 (1 January 1933)
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.