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CONTENTS

Preface
Introduction
The comparative table and digest
(i) the codes
(ii) the rules
Table of cases included in the digest
Index to the codes, rules and digest

The law reports to which reference is made are as follows:

The East African Law Reports, 1897-1923, cited as E.A.L.R.


The Kenya Law Reports, 1924-1956, cited as K.l.R.;
The Tanganyika Law Reports,
Revised Edition 1921-1957, cited as T.L.R. (R):
The Uganda Law Reports, 1904-1956, cited as U.L.R.;
The Eastern African Court of
Appeal Reports 1934-1956, cited as E.A.C.A.; and
The East Africa Law Reports, 1957-1968, cited as E.A.

The Tanganyika also published law reports as supplements to the Gazette, and these
are cited as L.R.S. No. ... of 19.....

The abbreviation CA stands for the Court of Appeal for East Africa (formerly
the Court of Appeal for Eastern Africa) and the abbreviations A.K.T.U and Z for
Aden, Kenya, Tanganyika, Uganda and Zanzibar respectively.

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PREFACE

This digest does not purport to include all reported cases dealing with civil
procedure but only those arising out of or of value in the interpretation of the three
codes and the orders and rules made under them. It does not aim at a fully summary
of the cases cited except in the simplest cases. Some cross-references to other
legislation have been included; in this connection, it may be added that certain rules of
Tanganyika and Uganda which appear impliedly to have been repealed have been
omitted.

The corresponding sections and rules of the three countries appear in lien
horizontally, and under them are shown the relevant cases. Where a section or rule of
one country is materially different from that of the others, it appears on a separate line.
It should not, however, be assumed that sections or rules shown as corresponding are
identical or even wholly to the same effects.

The sections, orders and rules of each country appear in order vertically and
where any section, order or rule appears also out of order, as corresponding with a
provision of another country, it is shown in parentheses.

Decisions which appear to be obsolete or to have been over-ruled have been


omitted.

Where any section or rule has been renumbered, the current number only is
shown.

Cases generally appear in chronological order, except where there seemed


some good reason to arrange them otherwise.

Some cases decided in the High Courts of Aden and Zanzibar and on appeal
from those courts have also been included, as being of persuasive value.

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It will be noted that reference is made throughout to Tanganyika; this is


because civil procedure is not yet a Union matter of the United Sovereign Republic of
Tanzania, although the High Court of the territory of Tanganyika is the High Court of
Tanzania and civil procedure of the courts of the United Republic and of Zanzibar may
be served and executed anywhere in Tanzania (Interim Constitution of Tanzania, 1965,
s. 66).

The Civil Procedure Act (Cap. 5) of Kenya


The Civil Procedure Code, 1966, No. 49 of
1966) of Tanganyika
The Civil Procedure Act (CP. 65) of Uganda
The Civil Procedure (Revised) Rules, 1948, of Kenya
The First and Second Schedules to the Civil Procedure
Code, 1966, of Tanganyika
The Civil Procedure Rules of Uganda

INTRODUCTION

In Kenya, the Civil Procedure Act applies to the High Court and to all
magistrates’ courts1 and so far as no other provision has been made by rules, to
Kadhi’s courts.2

In Tanganyika, the Civil Procedure Act applies to the High Court and to courts
of resident magistrates and to district courts.3 It has no application to proceedings in
primary courts, which have their own rules of civil procedure.4

1
Civil Procedure act (Cap. 5), S. 1(2); Magistrate’s Courts Act 1967 (No. 17 of 1967), S. 16.
2
Kadhi’s Courts Act 1967 (No. 14 of 1967), S. 8
3
Civil Procedure Code, 1966, (No. 49 of 1966), S.2
4
Primary Courts Civil Procedure Rules (G.N. No. 310 of 1964)

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In Uganda, the Civil Procedure Act applies to the High Court and to courts of
chief magistrates and magistrates grade I. Courts of magistrates grades II and III have
their own rules of civil procedure.5

The rules contained in the First and Second Schedules to the Civil Procedure
Code, 1966, of Tanganyika, have effect as if enacted in the body of the Code,6 but it is
expressly provided that rules, made by the Chief Justice with the consent of the
Minister, annulling, altering or adding to those rules shall not be inconsistent with the
body of the Code;7 the rules of Kenya and Uganda are not deemed to be part of the
principal legislation, they are made by committees under powers which specifically
provide that such rules are not to be inconsistent with the principal legislation8. In this
connection, see:

Central District Maize Millers Assn., Mbale v. Maciel & Co. Ltd. (1944) 6
U.L.R. 130 (U)

Gupta v. Bhamra [1965] E.A. 439 (U)

The codes and rules do not purport to be exhaustive, save on the matters specifically
dealt with by them; see:-

In re Keshavlal Punja Parbat Shah (1955) 22 E.A.C.A. 381 (CA-K)

Abdallah Mohammed v. Ahmed bin Salem Makharran (1956) 23 E.A.C.A. 260


(CA-T)

When a matter is dealt with in the rules, the courts will normally regard this as
excluding their inherent powers, but there are exceptions even to this: see:

5
Civil Procedure Act (Cap. 65) S. 1(2); Magistrates’ Courts Act (Cap. 36), S. 28; Magistrates Courts
(Grades II and III) Civil Procedure Rules, 1965 (S. 1. 1965 No. 93)
6
Civil Procedure Code, 1966, SS. 80, 81
7
Civil Procedure Code, 1966,S. 82
8
Kenya: Civil Procedure Act, S. 81; Uganda: Judicature Act, 1967, S. 18

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Ahmed H. Mulji v. Shirinbai Jadavji [1963] E.A. 217 (T)

Bank of India Ltd. v. Manibhai M. Patel Ltd. [1965] E.A. 638 (U)

Saldanha v. Bhailal & Co. [1968] E.A. 28 (K)

Rawal v. Mombassa Hardware Ltd. [1968] E.A. (CA-K)

The codes and rules, particularly those of Kenya, contain a number of provisions
regarding proceedings by and against the Government, but in addition reference should
be made, in the case of Kenya to the government Proceedings Act;9 in the case of
Tanganyika, to the Government Suits Ordinance10 which has not yet been brought into
operation, and to the Government Proceedings (Procedure) Rules, 196811; and in the
case of Uganda to the Government Proceedings Act12 and the Civil Procedure
(Government Proceedings) Rules.13

“The rules of procedure are designed to formulate the issues which the court has to
determine and to give fair notice thereof to the parties.”

Bhag Bhari v. Mehdi Khan [1965] E.A. 94 (CA-K) at p. 104

“Procedural rules are intended to serve as the hand-maidens of justice, not to defeat it
...”

Iron & Steelwares Ltd. v. C.W. Martyr & Co. (1956) 23 E.A.C.A. 175 (CA-U)
at p. 177

9
Cap. 40
10
Cap. 5
11
G.N. No. 376 of 1968
12
Cap. 69
13
S. 1. 69-1

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THE CODES

Kenya Tanganyika Uganda


Civil Procedure Act (Cap. The Civil Procedure Code, The Civil Procedure Act
5) 1966 (no. 49 of 1966) (Cap. 65)
PRELIMINARY
Section 1 Section 1 Section 1
(c.f. Section 1) Section 2 (c.f. section 1)
Section 2 Section 3 Section 2

Decrees and Orders

In deciding whether a decision is a decree for the purposes of appeal, the court will
look at the substance rather than the form.

Collector v. Kassam Shivji Bhimji [1959] E.A. 1063 (CA-K)

Mansion House Ltd. v. Wilkinson (1954) 21 E.A.C.A. 98 (CA-K)

Definition of decree; historical development; the grant of an injunction under the


Companies Ordinance is not a judgment but an order.

Mansion House Ltd. v. Wilkinson (1954) 21 E.A.C.A. 98 (CA-K)

A decision rejecting a preliminary objection as to misjoinder, limitation, jurisdiction or


res judicata is not a preliminary decree.

Tzamburakis v. Rodoussakis [1958] E.A. 400 (JC-T)

Mandavia v. Rattan Singh [1965] E.A. 118 (CA-K)

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A decision on liability, decided preliminary to the issue of quantum, is a preliminary


decree.

Commissioner of Transport v. Kenya Co-op. Creameries Ltd. (1954) 21


E.A.C.A. 70 (CA-K)

Baker v. Rush [1964] E.A. 602 (CA-K)

An order for costs delivered subsequent to judgment is to be regarded as a part of the


judgment and consequently of the decree.

Ali v. Sheth (1950) 17 E.A.C.A. 88 (CA-K)

A decision of the High Court in proceedings brought by originating motion for an


order for investigation under the Companies Ordinance results in a judgment and
decree.

Where there is an appeal to the High Curt from an order made under a special or local
law within S.79(b) of the Civil Procedure Act (Kenya), the Court’s final determination
of the appeal is a judgment and gives rise to a decree.

Bhagat Singh v. Chauhan (1956) 23 E.A.C.A. 178 (CA-K)

Janmohamed Alibhai v. Ramji A. Raichura (1953) 20 E.A.C.A. 24 (CA-U)

A decision dismissing a motion for an order to transfer proceedings is an interlocutory


order.

Kabaka v. Prince George Mawanda [1964] E.A. 718 (CA-U)

A formal adjudication upon an originating summons is an order, not a decree.

O’Dell v. Thompson (1955) 22 E.A.C.A. 177 (CA-K)

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Dhillon v. Sham Kaur [1960] E.A. 795 (CA-K)

Bhag Bhari v. Mehdi Khan [1965] E.A. 94 (CA-K)

In order in objection proceedings under O.XXXVIII, r.8 (Kenya) is not a decree.

Ratanbai Miyaji v. Essufali Gulamhusein (1929-30) 12 K.L.R. 20 (CA-K)

Every decision in winding up is an order.

Rene Dol v. Official Receiver (1954) 21 E.A.C.A. 116 (CA-U)

A decision by the High Court on an appeal from a decision of a provisional Liquidator


is an order, not a decree.

Farrab NC. v. Official Receiver [1959] E.A. 5 (CA-K)

A decision of the High Court on an appeal from an award of compensation made by


the collector for land compulsorily acquired, not being made in a suit, is not a decree.

Musa M. Luwala v. Collector for Western Uganda Rly. Extn. [1959] E.A. 848
(CA-U)

A decision by a magistrate on an appeal under the Public Health Ordinance (Uganda)


against requirements of the medical officer of health is an order and not a decree.

Mityana Gunneries Ltd. v. Public Health Officer, Kampala [1958] E.A. 339
(CA-U)

An opinion on a case stated under the Arbitration Act (Kenya) is not a judgment or
order.

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Commissioner of Lands v. Concrete Works Ltd. [1958] E.A. 254 (CA-K)

The dismissal of a suit on failure of the plaintiff to appear at an adjourned hearing is an


order, not a judgment.

Camille v. Merali [1968] E.A. 314 (CA-K)

Judgment

A decision under Order XLV, rule 12, 14 or 15 (Kenya) is not a judgment.

Bhagwanji Raja v. Swaran Singh [1962] E.A. 288 (CA-K)

When a plaint is struck out under O.VI, r. 29 (Kenya), the decision is a judgment, not
an order.

Rono v. Dhanjal [1966] E.A. 194 (K)

An order granting leave to withdraw a matrimonial petition is a judgment.

Matemba v. Matemba [1968] E.A. 646 (T)

Mesne Profits

Meaning of “mesne profits”

Heptulla Bros. Ltd. v. Thakore [1957] E.A. 358 (CA-K)

Suit

Meaning of “suit”.

Bhagat Singh v. Chauhan (1956) 23 E.A.C.A. 178 (CA-K)

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Mityana Ginners Ltd. v. Public Health Officer, Kampala [1958] E.A. 339 (CA-
U)

Mandavia v. Rattan Singh [1968] E.A. 146 (CA-K)

Proceedings instituted under S.149 of the Registration of Titles Act (Uganda) are not a
suit, and the determination is an order, not a decree.

Hussein Esmail Bros. v. Gordhan Bogha (1935) 2 E.A.C.A. 98 (CA-U)

Section 4
Section 3 Section 5 Section 3
Section 3 Section 6 Section 4
And see Magistrate’s (And see Magistrates’ (And see Magistrate’s
Courts Act 1967 (No. 17 Courts Act, 1963 (No. 55 Courts Act (Cap. 36))
of 1967)) of 1963))

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SUITS IN GENERAL

JURISDICTION OF THE COURTS AND RES JUDICATA

Section 5 (c.f. section 7 Section 5

Where a party seeks to impeach a judgment on the ground that it was obtained by
fraud, the settled practice is that he should bring an action in the court which gave the
judgment; it cannot be pleaded in a superior court that an attachment order granted by
an inferior court was improperly obtained unless that order has been set aside by the
court that made it.

Jeraj Shariff & Co. v. Chotai Fancy Stores [1960] E.A. 374 (CA-U)

c.f. Section 5 and O.II, r.7) Section 7 (c.f. section 5 and O.II,
r.7)
Section 6 Section 8 Section 6

“Matter in issue” doe not mean any mater in issue but the entire subject in controversy.

Jadva Karsan v. Harnam Singh Bhogal (1953) 20 E.A.C.A. 74 (CA-K)

“Litigating under the same title” means, in the case of a trustee, in the same
representative capacity.

Saleh bin Kombo v. Administrator-General [1957] E.A. 191 (Z)

Section 7 Section 9 Section 7

Where a suit has been dismissed on a preliminary point, the plaintiff has not had an
opportunity of being heard on the merits and the matter is not res judicata.

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Keharchand v. Jan Mohamed (1919-21) 8 E.A.L.R. 64 (CA-K)

A suit for damages for assault is not res judicata because compensation has been
awarded in criminal proceedings.

Sultanali Kurji Meghji v. Absolum Odhiambo (1951) 24 K.L.R. 84 (K)

A fresh suit is not precluded where evidence of fraud has become available which was
not known to the plaintiff at the time of the first suit, even though it “might” have been
discovered, and which raises an issue which was not determined in the first suit.

Rashid Allarakhia Janmohamed & Co. v. Jethalala Valabhdas & Co. (1956) 23
E.A.C.A. 255 (CA-Z)

A judgment by default does not constitute res judicata, but a fresh may be barred under
Order IX.

Musa bin Khamis v. Kaporo bin Kasibu [1957] E.A. 189 (Z)

A fresh suit may be instituted to set aside a judgment obtained by fraud, but not one
obtained by perjured evidence.

Malik v. Callow [1958] E.A. 99 (T)

“Litigating under the same title” means in the case of a trustee, in the same
representative capacity.

Saleh bin Kombo v. Administrator-General [1957] E.A. 191 (Z)

Inconsistent or mutually destructive pleas cannot be said to be such as ought to have


been raised in a former suit.

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Gurbachana Singh Kalsi v. Yowani Ekori [1958] E.A. 450 (CA-U)

Where a suit is dismissed on failure to produce evidence, that is a decision on the


merits and gives rise to res judicata.

Salem A.H. Zaidi v. Fud H. Humeidan [1960] E.A. 92 (CA-A)

Explanation (4) is not directed solely against defendants.

Shah v. Mohamed Haji Abdulla [1962] E.A. 769 (K)

Res judicata is a mater of pleadings and can be raised only at the trial.

Mandavia v. Rattan Singh [1965] E.A. 118 (CA-K)

A suit to damages is not res judicata because the claim could have been raised by way
of counter-claim in a previous suit, although the issue of negligence may be.

Karshe v. Uganda Transport Co. Ltd. [1967] E.A. 774 (U)

Section 8 Section 10 Section 8


Section 9 Section 11 Section 9

A foreign judgment has not been given on the merits of the case if it was given in
default of appearance.

Nagina Singh v. Tarlochan Singh (1937) 17 K.L.R. 82 (K)

(And see the Foreign (And see the Foreign (And see the Foreign
Judgments Enforcement Judgment (Reciprocal Judgments (Reciprocal
Act (Cap. 43), S.20) Enforcement) Ordinance Enforcement) Act (Cap.

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(Cap. 8), S.10) 48), S.10)


Section 10 was repealed by Section 12 Section 10
the Evidence Act (Cap.
80))

PLACE OF SUING

Section 11 (c.f. Section 13) (c.f. section 11)


(and see Magistrate’s
Courts Act 1967 (No. 17
of 1967))

In a suit brought by a landlord, the value of the subject in dispute, for the purpose of
jurisdiction, is what the landlord seeks to recover, not what the tenant may lose.

Lewis Fernandes v. Joseph & Son (1919-21) 8 E.A.L.R. 99 (CA-K)

(affirmed in Jaffers Ltd. v. Caltex (Africa) Ltd. [1961] E.A. 140 (CA-T) now
obsolete as regards Tanganyika)

(c.f. section 11) Section 13 (c.f. Section 11)


(and see Magistrates’
Courts Act, 1963 (Cap.
537))
(c.f. Section 11) (c.f. Section 13) Section 11
(and see Magistrates’
Courts Act (Cap. 36))

Subsection (7): When costs on the High Court scale will be allowed.

Purshottam Kurji v. Opa Laboratories Ltd. [1957] E.A. 299 (U)

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Section 12 Section 15 Section 13


Applies only to subordinate
courts

Riddlesbarger v. Robson [1958] E.A. 375 (CA-K)

Section 16

Section 14 Section 17 Section 14


Applies only to subordinate
courts

Riddlesbarger v. Robson [1958] E.A. 375 (CA-K)

Section 15 Section 18 Section 15


Applies only to subordinate
courts

Riddlesbarger v. Robson [1958] E.A. 375 (CA-K)

(Semble: the references to section 15 in Ruby General Insurance Co. Ltd v.


General land and Insurance Agencies Ltd. [1963] E.A. 154 (U) would appear to have
been made per incuriam.)

Section 16 Section 19 Section 16


Relates only to suits.

Ali Mohdi v. Abdulla Mohamed [1961] E.A.456 (CA-T)

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Section 17 (c.f. section 20) Section 17


(c.f. section 17) Section 20 (c.f. section 17)
Section 18 Section 21 Section 18

The factors to be considered are balance of convenience, questions of expense,


interests of justice and possibilities of undue hardship; the applicant must make out a
reasonably strong case.

Matayo K. Kaboha v. Abibu bin Abdulla (1942) 6 U.L.R. 121 (U)

To justify a transfer, there must be a stronger reason than mere balance of


convenience.

Yolamu Kaluba v. Kerementi Kajaya [1957] E.A. 312 (U)

A suit instituted in a court which lacks jurisdiction cannot be transferred.

Kagenyi v. Murisamo [1968] E.A. 43 (U).

INSTITUTION OF SUITS

Section 19 Section 22 Section 19

PROCEDURE IN SUITS AND DISCOVERY

SUMMONS AND DISCOVERY

Section 20 Section 23 Section 20


Section 21 Section 24 Section 21
Section 22 Section 25 Section 22

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Permits the court call a witness of its own motion, but the trial judge must not descend
into the arena.

Patel v. Joshi (1952) 18 E.A.C.A. 42 (CA-K)

Section 23 Section 26 Section 23


Section 24 Section 27 Section 24

JUDGEMENT AND DECREE

Section 25 Section 28 Section 25

Judgment given without reasons; reasons later read in open court treated as part of the
judgement; the procedure was irregular but curable.

Ramjibhai v. Rattan Singh (1953) 20 E.A.C.A. 71 (CA-K)

Reasons prepared subsequent to judgement and not delivered in open court held not to
be part of the judgment.

Saint v. Hogan (1953) 20 E.A.C.A. 85 (CA-K)

Decision delivered orally; written “judgment” prepared and signed in chambers


immediately after but not delivered in open court held to be no judgment in law.

Gillani’s Modern Bakery v. Kuntner (1954) 21 E.A.C.A. 123 (CA-K)

(But, as to whether an appeal lies from a decree based on an invalid judgment, see
also-

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Patel v. Universal Timber Co. Ltd. (1952) 19 E.A.C.A. 29 (CA-K))

INTEREST

Section 26 (c.f. section 29) (c.f. section 26

Does not apply to interest on costs.

Shadi Ram Mohindra v. B.C. Mohindra [1957] E.A. 708 (K)

The section has no application to interest prior to the date of the suit, which is a matter
of substantive law.

Yousuf Abdulla Gulamhusein v. French Somaliland Shipping Co. Ltd [1959]


E.A. 25 (CA-A)

In a suit for damages for personal injuries, interest should not normally be awarded for
the period between filing suit and judgement in the general damages but should be
awarded on special damages, if the amount claimed has been actually expended.

Lata v. Mbiyu [1965] E.A. 592 (CA-K)

Empowers a court, when passing judgment on an arbitrator’s award, to allow interest,


even though not provided for the award.

Shahi v. Sethi [1964] E.A. 246 (K)

(c.f. section 26) Section 29 (c.f. section 26)

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Interest from the date of suit to judgement, being in the discretion of the court, may or
may not be at the contractual rate; where in an undefended suit the rate of interest is
prima facie excessive, the burden of proving that it is not ins on the claimant.

Mohamed s/o Mohamedi v. Athmani Shamte [1960] E.A. 1062 (T)

(c.f. section 26 (c.f. section 29) Section 26

Sub-section (1): the court may reduce the rate of interest on the ground that it is harsh
and unconscionable even though it is not satisfied that there has been any inequitable
or unscrupulous behaviour on the part of the plaintiff.

Ndugwa v. Baganda Butchers Ltd. (1947) 6 U.L.R. 150 (U)

Sub-section (1): what is harsh and unconscionable is in the discretion of the court,
which is not fettered by local practice.

Lobo v. Baganda Butchers Ltd. (1947) 14 E.A.C.A.12 (CA-U)

Cannot be invoked for the purpose of claiming interest in a suit by summary


procedure, except where interest was expressly provided for.

E.M. Cornwell & Co. Ltd. v. Desai (1941) 6 U.L.R. 103 (U)

Kasule v. Kawesa [1957] E.A. 611 (U)

COSTS

Section 27 Section 30 Section 27

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“Of and incident to”; proceedings before board which were essential prerequisite to
filing suit.

Amir bin Abdulla v. Adamji Abdulhusein (1945) 12 E.A.C.A. 11 (CA-K)

Meaning of “issue” (Kenya and Uganda).

Bhagwanji Raja v. Swaran Singh [1962] E.A. 288 (CA-K)

Meaning of “the event”.

Shankerdass Mayer v. Trustees of the Rahimtulla Lalji Hirji Charitable Trust


(1955) 22 E.A.C.A. 18 (CA-K)

A distributive order for costs should not normally be made where one party has total
success in the action.

Jiwan Singh v. Rugnath Jeram (1945) 12 E.A.C.A. 21 (CA-K)

Dembeniotis v. Central Africa Co. Ltd [1967] E.A. 310 (T)

Costs in test case, the parties being the same in all suits.

Nazerally v. Income Tax Commissioner [1964] E.A. 52 (K)

Apportionment of costs where suits consolidated.

Suleman v. Igembe Farmers Co-operative Society Ltd. [1966] E.A. 351 (K)

Costs where set-off allowed exceeds claim.

Kiska Ltd. v. De Angelis Civil Appeal No. 9 of 1968 (unreported) (CA-K)

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Separate instruction fees may be allowed for claim and counter-claim.

Musoke v. Dol [1963] E.A. 526 (U)

A counterclaim is not to be regarded as a plaint for the purpose o taxing costs; a


defendant given costs of a counterclaim should only receive the additional costs that
arose by reason of the counterclaim, not the costs he would have received in a separate
action.

D’Silva v. Rahimtulla [1968] E.A. 335 (CA-K)

and see Pioneer Investment Trust v. Amarchand [1968] E.A. 386 (CA-K) Bullock
orders.

D.T. Dobie & Co. (U) Ltd. v. United India Fire & General Insurance Co. Ltd.
[1964] E.A. 16 (U)

Costs given to the estate of a deceased defendant, the suit having abated.

Vamos & Partners v. Hassan [1964] E.A. 644 (K)

Costs may be awarded against the estate of a deceased appellant where the cause of
action has abated.

Basant Kaur v. Rattan Singh Civil Appeal No. 95 of 1952 (unreported) (CA-K)

When a tribunal is properly made a party to an appeal against its decision, costs may be
awarded against it, notwithstanding that it is not a corporation.

Transport Licensing Board v. Mamuji (1947) 14 E.A.C.A. 6 (CA-K)

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When allowing amendment of a plaint the original claim not being abandoned, held
wrong to allow the defendant all costs to date; proper order for costs thrown away,
which cannot be ascertained until the action has been determined.

Rodway Motors Ltd. v. Ram Chand Ahluwalia (1940) 7 E.A.C.A. 30 (CA-K)

and see Sirley v. Tanganyika Tegry Plastics Ltd. [1968] E.A. 529 (CA-T)

But see Harji Karsan v. Monjee Raghavjee (1943) 10 E.A.C.A. 10 (CA-K)


where immediate payment was ordered.

When setting aside an ex parte judgment, an order as to costs should be limited to


those thrown away.

Patel v. Star Mineral Water and Ice Factory (Uganda) Ltd. [1961] E.A. 45
(CA-U)

Costs of unopposed application by decree-holder for leave to bid.

Unga Ltd. v. Kalidas B. Patel (1937) 1 T.l.R. (R) 511 (T)

Where an application is not made at the proper time, there is no rule that the
respondent is entitled to costs.

Raniga v. Jivraj [1965] E.A. 700 (CA-K)

There is no obligation to give reasons when awarding costs to a successful party.

Sheikh Jama v. Dubat Farah [1959] E.A. 789 (CA-T)

Successful plaintiff deprived of costs.

Kassamba v. Banafa (1955) 7 U.L.R. 142 (U)

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Shallo v. Maryam [1967] E.A. 409 (K)

Portgagee deprived of costs of redemption action on ground of misconduct.

Pioneer Investment Trust Ltd. v. Amarchand [1967] E.A. 498 (CA-K)

A successful defendant can only be deprived of his costs where his conduct has led to
litigation which might have been averted.

Devram Nanji Dattani v. Dawda (1949) 16 E.A.C.A. 35 (CA-U)

Kiska Ltd. v. de Angelis Civil Appeal No. 9 of 1968 (unreported) (CA-K)

Successful defendant refused costs where rent restriction proceedings arose out of
defendant’s default.

Fazal Dhirani v. Abdulmohamed Ismail Ganji (1946) 13 E.A.C.A. 69 (CA-K)

Defendant succeeding on appeal deprived of costs where agreement tainted with fraud.

Somaiya & Co. Ltd. v. Govindji Popatlal [1957] E.A. 30 (CA-K)

Where discovery of documents and preparation of an agreed bundle should have been
carried out but has not, there should be a deduction from the instructions fee and the
hearing fees.

Taj Deen v. Dobrosklonsky [1957] E.A. 379 (CA-K)

An appellate court will not interfere with the exercise of its discretion by the trial
court, except where that discretion has been exercised unjudicially.

Sheikh Juma v. Dubat Farah [1959] E.A. 789 (CA-T)

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Arthur v. Nyeri Electricity Undertaking [1961] E.A. 492 (CA-K)

Hussein Janmohamed & Sons v. Twentsche Overseas Trading Co. Ltd. [1967]
E.A. 287 (T)

Kiska Ltd. de Angelis Civil Appeal No. 9 of 1968 (unreported) CA-K)

When holding that a wrong principle has been applied, the usual practice is to remit to
the taxing master for assessment, although the judge may deal with the matter himself.

D’Souza v. Ferrao [1960] E.A. 602 (CA-K)

Arthur v. Nyeri Electricity Undertaking [1961] E.A. 492 (CA-K)

Where a magistrate has made no order as to costs, it is not open to the High Court to
make one on revision.

Quick Service Stores v. Thakrar [1958] E.A.357 (T)

Where a certificate is given for two counsel, each is entitled to an instruction fee.

Puran Singh v. Bishen Singh Chadah [1957] E.A. 610(CA-K)

It is not open to the taxing master to require whether the junior counsel as ready and
able to argue the case.

Pal Singh v. E.A. Diesel Mart Ltd. [1958] E.A. 152 (CA-K)

Junior counsel with only a “noting brief”, not in a position to argue the case, should
receive a nominal fee only.

N.A.S. Airport Services Ltd. v. A.G. Kenya [1959] E.A. 349 (CA-K)

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It is not an error of principle for a taxing officer to refuse separate instruction fees in
relation to defendants represented by the same advocate, here the same issue were
involved.

Patel v. Barclays Bank D.C.O. [1959] E.A. 994 (U)

Objection proceedings against attachment of land; instruction fee based on amount in


issue, not value of the land.

Ambalal N. Patel Ltd. v. Marietti [1967] E.A. 194 (K)

Successful defendant represented by state counsel awarded costs; how quantum to be


ascertained.

Lamberito Kafuzi v. Yozefu Ntaama [1960] E.A. 14 (U)

Unless the court directs the immediate taxation and payment of costs in an
interlocutory application, there should be only one taxation of costs in an action.

Adrinallav. Hogan [1966] E.A. 290 (T)

Section 27 Section 30 Section 27


(See also the advocates (See also the Rules of (See also the Advocates
Remuneration) Order Court (Advocates’ Remuneration and
(Cap. 16 (Sub. Leg. P. 58)) Remuneration and Taxation of costs) Rules
Taxation of Costs) rules (S.I. 258-5)
(A.L.[9] p. 3)

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EXECUTION

GENERAL

Section 28 Section 31 Section 28


Section 29 Section 32 Section 29
Section 30 Section 33 Section 30
Section 31 Section 34 Section 31
Section 32 Section 35 Section 32
Section 33 Section 36 Section 33
Section 37
Section 34

Question to be Determined by Court Executing Decree

Section 34 Section 38 Section 35

Does not apply to actions for damages arising from the wrongful issue of execution
proceedings.

Narshidas M. Mehta & Co. Ltd. v. Baron Verheyen (1956) 2 T.L.R. (R) 300
(T)

Limit of Time for Execution

Section 35 was repealed by Section 38 Section 35


the Limitation of Actions
Act 1968 (No. V of 1968

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Note: The following are decisions on the repealed Kenya Section 35 -

Goverdale & Stanley v. Saleh Mohammed (1931) 13K.L.R. 43 (K)

Maria B.S. de Souza v. Campbell Clause (1932) 14 K.L.R. 56 (CA-K)

Transferees and Legal Representatives

Section 36 Section 40 Section 37


Section 37 Section 41 Section 38

Procedure in Execution

Section 38 Section 42 Section 39

The hirer’s interest under a hire-purchase agreement is not capable of being seized and
sold in execution.

Fatin v. Darbar [1964] E.A. 662 (K)

Darbar v. Fatin [1967] E.A. 526 (K)

Section 39 Section 43 Section 40

Arrest and Detention

Section 40 (c.f. section 44) (c.f. section 41)


(c.f. section 40) Section 44) Section 41

Subsection (3) (Tanganyika): a security which is realized, though immediately payable

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to the court, ensures for the benefit of the decree holder, except so far as it may exceed
the amount payable under the decree.

Karsan & Co. V. Akberali Jaffer [1964] E.A. 21 (T)

Attachment

Section 44 Section 48 Section 45

An attachment order cannot prevail over an earlier notice issued by the Commissioner
of Income Tax under S. 121 of the E.A. Income Tax (Management) Act, 1958.

Shah Jivraj Hira & Sons v. Gohil [1960] E.A. 922 (K)

Meaning of “agriculturist”; not restricted to persons who till personally.

Meaning of “implements”; may include tractors.

Voi Posho Mill v. Kenya Sisal Estate [1962] E.A. 647 (K)

Section 45 Section 49 Section 46


Section 46 Section 50 Section 47
Section 47 Section 51 Section 48

A private transfer of property under attachment is not absolutely void but only void
against claims enforceable under the attachment.

Lobo v. Modhoram (1951) 23(2) K.L.R.28 (K)

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Sale

Section 49
Section 50
Section 48 Section 52
Section 49 Section 53 Section 51

Distribution of Assets

Section 50 (c.f. section54) Section 52


(c.f. section 50) Section 54 (c.f. section 52)

Does not exclude a claim based on an agreement for satisfaction of a decree.

Janmohamed Ladha, Re {1961] E.A. 175 (T0

Resistance to Execution

Section 51 Section 55 Section53

INCIDENTAL PROCEEDINGS

Commissions

Section 52 Section 56 Section 54


(and see the Judicature
Act, 1967 (No. 11 of
1967), SS. 25-32)
Section 53 Section 57 Section 55

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Section 54 Section 58 Section 56


Section 55 (c.f. section 59) Section 57
(c.f. section 55) Section 59 (c.f. section 57)

Note: In relation to the taking of evidence on behalf of foreign tribunals, see

Rules of court (G.N. Foreign Tribunals (Taking Foreign Tribunals Evidence


No.1356 of 1952) Part VII of Evidence) Rules, 1964 Act (Cap. 45)
(R.L. Cap. 453 Supp 64 p.
27)
SUITS IN PARTICULAR CASES

Suits against Public Officers

Note: The Public Officers Protection Section 60


Act (Cap. 186)deals with different
considerations and is not comparable

Suits by Aliens and by or against Foreign Rulers

Suits by Aliens and Foreign States

Section 56 Section 61 Section 58


Section 57 Section 62 Section 59

Interpleader

Section 58 Section 63 Section 60

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Then claims are adverse; when applicant should be discharged from suit

Sargent v. Gautama [1968] E.A. 338 (CA-K)

SPECIAL PROCEEDINGS

Arbitration

Section 59 (c.f. section 64) Section 61


(c.f. section 59) Section 64 (c.f. section 61)

Special Case

Section 60 Section 65 Section 62

Suits relating to Public Matters

Section 61 Section 66 Section 63

Subsection (2) invoked.

Makumbi v. Puran Singh Ghana [1962] E.A. 331 (U)

Section 62 Section 67 Section 64

Meaning of “public”

Kermali v. Dhalla [1957] E.A. 168 (Z)

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The consent of the Attorney-General is required, even though only a declarator


judgement is sought.

Abdoo v. Saleh [1964] E.A.115 (CA-A)

SUPPLEMENTAL PROCEEDINGS

Section 63 Section 68 Section 65


There is no obligation on a judge to give reasons for an order made on an interlocutory
application, although it is desirable except in the simplest cases.

(And see the Judicature


Act, 1967 (No. 11 of 196
S. 36)

Hogan v. Adrianwalla [1965] E.A.594 (CA-T)

Section 64 Section 69 Section 66


(and see the Judicature
Act, 1967 (No. 11 of
1967), S. 36)

Provides an alternative remedy to bringing a suit.

Jeraj Shariff & Co. V. Chotai Fancy Stores [1960] E.A. 374 (CA-U)

APPEALS

Appeals from Decrees

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Section 65 (c.f. section 70) (c.f. Magistrates’ Courts


Act (Cap.36), S. 32)

In order for costs, although made subsequently to the judgement, is part of the decree
and consequently appealable.

Ali v. Sheth (1950) 17 E.A.C.A. 88 (CA-K)

Once a matter has arrived at an established court by way of appeal, the ordinary
legislation dealing with further appeals from that court must be held to apply, unless
excluded.

Sheikh Noordin Gulmohamed v. Sheikh Bros. Ltd. (1951) 18 E.A.C.A 42


(CA-K)

Charan Kaur v. Mistry Makanji Vanmali (1956) 23 E.A.C.A. 5 (CA-K)

When and how applicants may bring a joint appeal.

Bhagwanji Premchand v. Gomes (1956) 23 E.A.C.A. 95 (CA-K)

Subsection (3): requirements for certificate.

Hasham Lalji v. Kotecha 91940) 19 K.L.R.20 (K)

Shaw v. Olivier (1943-3) 20(2) K.l.R.25

An appeal direct to the High Court from a third class magistrate is incompetent.

Taparu v. Roitei [1968] E.A. 618 (K)

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Section 65A
Section 70

Refusal of leave to appear and defend is appealable.

Bombay Flour Mill v. Patel [1962] E.A. 803 (T)

A decision on an application under ).XXI, r. 2(2) (Tanganyika) is appealable.

Paryani v. Choitram [1963] E.A. 464 (T)

Section 66 (c.f. Appellate Jurisdiction Section 68


Ordinance, 1961 (Cap. 451 S.7)

An appeal lies from a decree or order made on an application for habeas corpus or one
of the prerogative writs made to a superior court on its civil side.

In re Kashavlala Punja Parbat Shah (1955) 22 E.A.C.A. 381 (CA-K)

Ibingira v. Uganda [1966] E.A. 445 (CA-U)

When and how appellants may bring a joint appeal.

Bhagwanji Premji v. Gomes (1956) 23 E.A.C.A. 95 (CA-K)

When a point of law which was not argued in the lower court may be taken on appeal.

Alwi A. Saggaf v. Abed A. Algeredi [1961] E.A. 767 (CA-T)

An order setting aside an award made by an arbitrator is not appealable as of right.

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Bilimoria v. Bilimoria [1962] E.A. 198 (CA-U)

Section 67 (Section 70) Section 69


Section 68 Section 71 Section 70

After a final decree has been passed, leave cannot be given to appeal out of time
against a preliminary decree in those proceedings.

Kamau v. Gocharu (1953) 20 E.A.C.A. 59 (CA-K)

Does not apply to decisions rejecting preliminary objections based on misjoinder,


limitation jurisdiction or res judicata.

Tzamburakis v. Rodoussakis [1958] E.A.400 (JC-T)

Mandavia v. Rattan Singh [1965] E.A. 118 (CA-K)

Precludes an appellant attacking a final decree on any ground which would necessarily
carry with it a finding that a preliminary decree should also not have been made.

Odendaal v. Gray [1960] E.A.263 (CA-K)

As to what is a preliminary decree, see cases cited under section 2, Kenya and Uganda,
section3 Tanganyika.

Section 69 Section 72 Section 71


Section 70 Section 73 Section 72
Section 71 Section 73

Applied where form of judgment irregular.

Appeals from Appellate Decrees

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Section 72 (c.f. Appellate Jurisdiction Section 74


Ordinance, 1961 (Cap. 451
S.7)

Once a matter has arrived at an established court by way of appeal, the ordinary
legislation dealing with further appeals from that court must be held to apply, unless
excluded.

Sheikh Noordin Gulmohamed v. Sheikh Bros. Ltd. (1951) E.A.C.A. 42 (CA-


K)

Charana Kaur v. Mistry Makanji Vanmali (1956) 23 E.A.C.A. 5 (CA-K)

When and ho appellants may bring a joint appeal.

Bhagwanji Premchand v. Gomes (1956) 23 E.A.C.A. 95 (CA-K)

Section 73 Section 75
Section 74 Section 76

Appeals from Orders

Section 75 Section 74 Section 77

Once a matter has arrived at an established court by way of appeal, the ordinary
legislation dealing with further appeals from that court must be held to apply, unless
excluded.

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Sheikh Noordin Gulmohamed v. Sheikh Bros. Ltd. (1951) 18 E.A.C.A. 42


(CA-K)

Charana Kaur v. Mistry Makanji Vanmali (1956) 23 E.A.C.A. 5 (CA-K)

Subsection (1)(h) (Uganda): “rules” means rules made under the Civil Procedure Act;
orders made appealable under other acts do not come under ).XL, r. 1(2), so as to
require leave.

Rene Dol. V. Official Receiver (1954) 21 E.A.C.A. 116 (CA-U)

Applies only to orders in the strict sense ofS.2.

Bhagat Singh v. Chauhan (1956) 23 E.A.C.A. 178 (CA-K)

Subsection (1)(h) (Uganda): meaning of “expressly”; Order XL, r. 1(2), must be


regarded as expressly allowing appeals.

Gurbachan Singh Kalsi v. Yowani Ekori [1958] E.A. 450 (CA-U)

Subsection (1)(c); “award” means an award in an arbitration.

Musa M. Luwala v. Collector for Western Uganda Rly. Extn. [159] E.A. 848
(CA-U)

There is no appeal as of right from an order setting aside an award of an arbitrator.

Bilimoria v. Bilimoria [192] E.A. 198 (CA-U)

A committal order for contempt of court in failing to comply with a decree is


appealable, but only with leave, as a civil matter.

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Mandavia v. Rattan Singh [1962] E.A. 730 (CA-K)

Section 76 Section 75 Section 78

May be relied on by a respondent.

B.E.A. Timber Co. V. Inder Singh Gill [1959] E.A. 463 (CA-K)

Section 77 Section 79

General Provisions Relating to Appeals

(c.f. section 65) Section 80

As to whether an advocate’s mistake may be sufficient cause for extending time for
appeal, c.f. Bray v. Bray [1957] E.A. 302 (U)

Section 78 Section 76 Section 81

As to the undesirability generally of ordering new trials, see-

Khemaney v. Lachabai Murlidhar [1960] E.A. 1 (JC-K)

Section 79 Section 82

Paragraph (b): invoked on appeal under the Local Government (Valuation and Rating)
Act (Cap. 266) of Kenya.

Chester House & Co. v. Nairobi City Council [1966] E.A. 1 (K)

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REVIEW
REFERENCE, REVIEW AND REVISION
REVIEW AND REVISION

Section 77 (c.f. the Magistrates’ Courts Act (Cap.


36) S. 29)
Section 80 Section 83

Quaere: whether there can be a review of a judgment.

Mohamed Haji Abdulla v. Ghela Manek Shah (1956) 23 E.A.C.A. 342 (CA-K)

The Kenya section (and semble the Uganda section) unlike the Tanganyika section,
confers an unfettered right to apply for review.

Sardar Mohamed v. Charan Singh [1959] E.A. 793 (K)

Section 78

Review of judgment is the proper remedy for a party who can produce evidence, not
originally available, to show that a decree was obtained by perjured evidence.

Malik v. Callow [1958] E.A. 99 (T)

Period of limitation for application; what is “sufficient cause” for extension.

Parry v. Carson [1963] E.A. 546 (T)

Section 79 Section 84
(and see Magistrates’ Courts Act, 1963
(Cap. 537), SS 18, 20, 27, 39)

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Procedure on application for revision.

Jaffer v. Gupta [1959] E.A. 406 (T)

Whether the court has power to revise an interlocutory order (conflicting view)

Vithaldas Jetha v. Valibhai (1935) 1 T.L.R. (R.) 400

Muhinga Mukono v. Rushwa Native Farmers Co-op. Soc. Ltd. [1959] E.A.
595 (T)

Khan Stores v. Delawer [1959] E.A. 714 (T)

Hassam Karim & Co. Ltd. v. Africa Import & Export Central Corpn. Ltd.
[1960] E.A. 396 (T)

Keshavji Jethabhai & Bros. Ltd. v. Kurji L.R.S. No. 4 of 1962, p. 48 (T)

An order purporting to attach salary which could not lawfully be enforced is revisable.

Karia v. Wambura [1961] E.A. 91 (T)

Meaning of “case which has been decided”; “case” wider than “suit”; an order setting
aside an ex parte decree is a ”case”.

Rothblum v. Ebrahim Hajee Ltd. [1963] E.A. (CA-T)

The section relates only to jurisdiction and the High Court will not interfere merely
because a lower court allowed an application which was barred by limitation.

Matemba v. Yamulinga [1968] E.A. 643 (T)

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RULES

Section 81 (c.f. sections 81 and 82 (c.f. Judicature Act, 1967


(No. 11 of 1967) S. 18)
Section 80
(c.f. section 81) Section 81
(c.f. section 81) Section 82 (c.f. Judicature Act, 1967
(No. 11 of 1967 S. 18)
MISCELLANEOUS

Section 82 Section 83 Section 86


Section 83 Section 84 Section 87
Section 84 Section 85 Section 88
Section 85 Section 86 Section 89
Section 86 (c.f. Magistrates’ Courts Section 90
Act, 1963, (Cap. 537),
S.12)
Section 87 (c.f. Section 87) Section 91

The section confers a discretionary power and does not cast any burden of proof on
the court; the onus of proving a particular customary law is on the party seeking to
rely on it.

Kimani v. Cikanga [1965] E.A. 735 (CA-K)

(c.f. section 87) Section 87 (c.f. Oaths Act (Cap. 52) S.13)
Section 88 (c.f. Commissioners for Oaths
(Advocates) Act (Cap. 53) S.
5)
Section 89 Section 93

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An application for extension of time for objecting to an award in arbitration


proceedings is a “proceeding” in a “court of civil jurisdiction”.

Manibhai B. Patel v. Mehal Singh (1956) 23 E.A.C.A. 209 (CA-K)

Definition of “suit”

Mityana Ginners Ltd v. Public Health Officer, Kampala [1958] E.A. 339 (CA-
U)

Section 90 Section 88 Section 94


Section 91 Section 89 Section 95

When interest on money paid into court will be allowed as “restitution”.

Harnam Singh v. Jamal Pirbhai (1956) 23 E.A.C.A. 226 (CA-K)

Where the quantum of damages is reduced on appeal to the Court of Appeal, the High
Court has jurisdiction to order the retaxation of costs.

Bhatta v. Visram [1966] E.A. 495 (CA-K)

Section 92 Section 90 Section 96

Surety bond expressed to be in favour of the Chief Justice and puisne judges;
assignment not necessary before execution.

Govindji P. Madhvji v. Nasser Alibhai [1960] E.A. 393 (K)

Section 91
Section 93 Section 92 Section 97

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Section 94 Section 98

An application under this section must be in writing in terms of O.XXI, r. 7(2)


(Kenya).

F. Boero & Co. (E.A.) Ltd. v. Habib Mohamed (1954) 27 K.L.R. 25 (K)

Section 93 Section 95 Section 99

Cannot be invoked to extend a period of time limited by the law of limitation.

Kenya African Assn. Of Farmers and Traders (Co-op) Ltd. v. Migariuri (1950
17 E.A.C.A. 70 (CA-K)

Cannot be invoked to extend periods fixed by the court in its rule-making authority, as
oppose to its judicial capacity.

Manibhai B. Patel v. Mehal Singh (1956) 23 E.A.C.A. 209 (CA-K)

Allows an application for leave to defend a suit brought under summary procedure to
be granted out of time.

Twentsche Overseas Trading Co. Ltd. v. Bombay Garage Ltd. [1958] E.A. 74
(U)

Judge’s refusal to extend time reversed on appeal: factors considered.

Toprani v. Patel [1958] E.A. 346 (CA-K)

Section 96 Section 100


Section 94

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Section 97 Section 95 Section 101

No application can be brought “under” the section.

Hassam Karim & Co. Ltd. v. Africa Import & Export Central Corpn. Ltd.
[1960] E.A. 396 (T)

Note: The Following cases concern the inherent jurisdiction saved by the section.

Inherent jurisdiction may be invoked to stay proceedings where the ends of justice so
require or to prevent an abuse of the process of the court.

Jadva Karsan v. Harnam Singh Bhogal (1953) 20 E.A.C.A. 74 (CA-K)

Invoked to dismiss a suit as vexatious.

Baxi v. Bank of India Ltd. [1966] E.A. 130 (CA-U)

Invoked to strike out parts of a counterclaim as being res judicata.

Bank of India Ltd. v. Manibhai M. Patel Ltd. [1965] E.A. 638 (U)

Invoked to order a stay of execution.

Olivia da Ritta Siqueira v. Siqueira (1933) 15 K.L.R. 34 (K) and see Singh v.
Runda Coffee Estates Ltd [1966] E.A. 263 (CA-K0

Invoked to recall a judgment not perfected by a formal decree or order.

Raichand Lakhamshi v. Assanand & Sons [1957] E.A. 82 (CA-K)

Matemba v. Matemba [1968] E.A. 646 (T)

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and see Re Epicure Ltd [1960] E.A. 308 (U)

Invoked to set aside a judgment irregularly obtained.

Magon v. Ottoman Bank [1968] E.A. 156 (CA-K)

Invoked to re-institute a suit dismissed under Order XVI, rule 6 (Kenya).

Rawal v. Mombassa Hardware Ltd [1968] E.A. 392 (CA-K)

Invoked to call upon a referee, appointed to take accounts, for explanation

Keeble v. Shelton (1948) 15 E.A.C.A. 14 (CA-U)

Invoked to allow the award of costs to the personal representative of a deceased


defendant, the suit having abated.

Vamos & Partners v. Hassan [1964] E.A. 644 (K)

Invoked to empower order for refund of fees paid in excess.

National & Grindlays Bank Ltd. v. Ngambo Estate and Saw Mills Ltd. [1963]
E.A.263 (T)

Cannot be invoked in aid of an application not properly before the court.

Namukasa v. Bukya [1966] E.A. 433 (U)

Cannot be invoked by a party who had a remedy provided by law which is barred by
limitation.

Ahmed H. Mulji v. Shirinbai Jadavji [1963] E.A. 217 (T)

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Osman v. United India Fire and General Insurance Co. Ltd [1968] E.A. 102
(CA-T)

Cannot be invoked to dismiss proceedings for want of prosecution where O.IX, r. 16


and O.XVI, rr 5 and 6 (Kenya) do not apply.

Saldanha v. Bhailal & Co. [1968] E.A. 28 (K)

Cannot be invoked as a basis for claiming interest at the expense of the opposing party
on a deposit by way of security for costs.

Harnam Singh v. Jamal Pirbhai (1956) 23 E.A.C.A. 226 (CA-K)

Cannot be invoked to obtain leave to call additional evidence on appeal, where the
requirements of O.XXXIX, r. 27, (Tanganyika) are not satisfied.

Paryani v. Choitram [1963] E.A. 464 (T)

Section 98
Section 99 Section 96 Section 102

Cannot be invoked to rectify an omission to make any order as to costs.

Quick Service Stores v. Thakrar [1958] E.A. 357 (T)

The power to amend may be exercised after the issue of a formal order or decree; it
may be exercised to make good an omission resulting from an oversight by counsel;
general principles.

Raniga v. Jivraj [1965] E.A. 700 (CA-K)

and see Order XX, (and see Order XX, (and see Order XVIII, r.

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r. 3(3)) r.3) 3(3))


Section 100 Section 97 Section 103
Section 106

Is still in force.

Mehta v. Shah [1965] E.A. 321 (CA-K)

Section 98
Section 99
Section 100
Section 101

THE RULES

Kenya Tanganyika Uganda

The Civil Procedure The First and Second The Civil Procedure Rules
(Revised) Rules, 1948 Schedules to the Civil
Procedure Code, 1966

PRELIMINARY

Uganda
Rule 1
Rule 2

PARTIES TO SUITS

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Kenya: Order I Tanganyika: Order I Uganda: Order I


Rule 1 Rule 1 Rule 1

Contracts of sale and re-sale-purchaser and sub-purchaser joined as Plaintiffs - rule to


be construed liberally.

Abdulla v. Official Receiver (1954) 21 E.A.C.A. 85 (CA-K)

There is nothing wrong in a person suing in a dual capacity in the same suit.

Bolton v. Salim Khambi [1958] E.A. 360 (T)

Where rights to relief do not arise out of the same transaction, misjoinder cannot be
cured under rule 9 as it is a misjoinder of causes of action as well as of plaintiffs.

Barclays Bank D.C.O. v. Patel [1959] E.A.214 (U)

Yowana Kahere v. Lunyo Estates Ltd [1959] E.A. 319 (U)

Rule 2 Rule 2 Rule 2


Rule 3 Rule 3 Rule 3

As to what is “the same act or transaction”, see

Kanani v. Desai (1954) 7 U.L.R.135 (U)

Bank of India Ltd. v. Shah [1965] E.A. 18 (U)

Uganda General Trading Co. Ltd. v. Jinja Cash Stores Ltd. [1965] E.A. 469
(U)

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Where claims arise out of the same act or transaction and there is a common question
of law or fact, the reliefs claimed need not be common to all the defendants.

Uganda General Trading Co. Ltd v. Cash Stores Ltd. [1965] E.A. 469 (U)

Pioneer Investment Trust Ltd. v. Amarchand [1964] E.A. 703 (CA-K)

Rule 4 Rule 4 Rule 4


Rule 5 Rule 5 Rule 5
Rule 6 Rule 6 Rule 6
Rule 7 Rule 7 Rule 7

Intended to avoid multiplicity of suits - “as between all parties”.

Overseas Touring Co. (Road Services)Ltd. v. African Produce Agency (1949)


Ltd [1962] E.A. 190 (CA-U)

Rule 8 Rule 8 Rule 8

Members of the committee of a members’ club may not be sued as individuals in a


matter affecting the affairs of the club; a representative order must be sought.

Campos v. de Souza (1933) 15 K.L.R. 86 (K)

Applies to suits for damages in tort, provided all have a common interest and not
separate interests.

Daud Abdulla v. Ahmed Suleman (1946) 13 E.A.C.A. 1 (CA-K)

A representation order cannot be made in proceedings for libel against members of an


unincorporated society.

Balwant Singh v. Joginder Singh [1962] E.A. 395 (K)

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Rule 9 Rule 9 Rule 9

Does not preclude a judge from refusing in his discretion to allow joinder at a very late
stage.

Allah Ditta Qureshi v. Patel (1951) 18 E.A.C.A. 1 (CA-K)

Cannot be invoked where there is misjoinder of causes of action as well as of plaintiffs.

Yowana Kahere v. Lunyo Estates Ltd. [1959] E.A. 319(U)

Rule 10 Rule 10 Rule 10

The mistake may be one of fact or law; amendment not sought in lower court allowed
on appeal.

Hassanali s/o Somji v. Kishen Singh (1944-5) 21 (1) K.L.R. 29 (K)

An application for substitution must be supported by the written consent of the


proposed plaintiff - a mistake is not excluded merely because it is negligent, if honestly
made.

Lombard Banking Kenya Ltd. v. Shah Bhaichand Bhaganji [1960] E.A. 969
(K)

An application to remove a party cannot be allowed unless it would leave the suit
intact.

Parry v. Carson [1962] E.A. 515 (T)

In a suit in tort, a defendant cannot be added, even if willing, if the plaintiff opposes.

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Fernandes v. Kara Arjan & Sons [1961] E.A.693 (T)

An application to substitute defendant allowed, where the defendant named was a


limited company formed after the cause of action arose but before proceedings begun,
the real defendants having had notice within the period of limitation.

Matharu v. Italian Construction Co. Ltd [1964] E.A. 1 (T)

An application to substitute a new plaintiff cannot be allowed when the plaintiff


originally named was dead at the date when the suit was filed, because the suit is a
nullity.

Pathak v. Mrekwe [1964] E.A.24 (T)

Amendment may be allowed in case of misnomer, even though the name wrongly
inserted was that of a dead man.

Kohli v. Popatlal [1964] E.A. 219 (CA-K)

An application should not be allowed where it would deprive a defendant of the


defence of limitation or where there has been negligence and delay.

Mehta v. Shah [1965] E.A. 321 (CA-K)

Sub-rule (2): a defendant who has a defence on a point of law should not apply to have
his name struck out but should file a defence.

Marwaha v. Pandit Dwarka Nath (1952) 25 K.L.R. 45 (K)

Second defendant is not entitled to be dismissed from a suit on the ground that until
the first defendant’s evidence has been heard, there is no evidence against him.

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Overseas Touring Co. (Road Services) Ltd. v. African Produce Agency (1949)
Ltd. [1962] E.A. 190 (CA-U)

A defendant against whom no cause of action has been pleaded cannot be kept as a
party in order to obtain inspection or discovery.

Meru Farmers Co-operative Union v. Abdul Aziz Suleman (No. 1) [1966] E.A.
436 (CA-K0

Rule 10A (c.f. the Government (c.f. the Government


(and see the Government Proceedings Act, 1967 Proceedings Act (Cap. 69),
proceedings Act (Cap.40), (No. 16 of 1967), S. 9) S. 11)
s. 12)
Rule 11 Rule 11 Rule 11
Rule 12 Rule 12 Rule 12
Rule 13 Rule 13
Rule 13
Rule 14 (c.f. rule 14) Rule 14

Applies only to cases where the defendant claims to be entitled to contribution or


indemnity over against a third party.

Overseas Touring Co. (Road Services) Ltd. v. African Produce Agency (1949)
Ltd. [1962] E.A. 190 (CA-U)

Meaning of “indemnity”.

Yafesi Walusimbi v. A.G. Uganda [1959] E.A. 223 (U)

Limited to claims to contribution or indemnity; a right to damages is not a right to


indemnity.

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Kaggwa v. Costaperaria [1963] E.A. 213 ()

Joint tortfeasors; proceedings misconceived where third party not liable to be sued by
plaintiff.

Champion Motor Spares Ltd. v. Barclays Bank D.C.O. [1964] E.A. 385 (CA-
U)

Rule 14A
Rule 15 (c.f. rule 17) Rule 15
Rule 15A
Rule 16 (c.f. rule 19) Rule 16
Rule 17 (c.f. rule 19 Rule 17
(c.f. rule 14) Rule 14 (c.f. rule 14)
Rule 15
Rule 16
(c.f. rule 15) Rule 17 (c.f. rule 15)
Rule 18 Rule 18 Rule 18

Directions may be sought and given even though judgement has been entered against
the defendant.

(c.f. rules 16, 17) Rule 19 (c.f. rules 16, 17)


Rule 19 Rule 20 Rule 19

Principles underlying order for costs.

Kenya Meat Commission v. Jackson and Hill [1958] E.A. 719 (K)

Rule 21

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Rule 20 Rule 22 Rule 20


Rule 21 Rule 23 Rule 21

A defendant cannot get judgment against his co-defendant on a notice of indemnity


without first applying to the court for directions.

Patel v. Universal Timber Co. Ltd (1952) 19 E.A.C.A. 29 (CA-K)

Since third party procedure is limited to the issue of indemnity, a counterclaim in the
pleading of a third party will be struck out.

Total Oil Products Ltd. v. Malu [1966] E.A.164 (K)

Rule 22 Rule 22

FRAME OF SUIT

Kenya: Order II Tanganyika: Order II Uganda: Order Ii


Rule 1
Rule 1 Rule 2 Rule 1
Rule 2 Rule 3 Rule 2

The alleged rights to relief must arise out of the same transaction; if out of similar
transactions it is misjoinder - withdrawal of suit permitted.

Barclays Bank D.C.O. v. Patel [1959] E.A. 214 (U)

Yowana Kahere v. Lunyo Estates Ltd. [1959] E.A. 319 (U)

There may be different causes of action arising from one transaction and in such case
the rule does not operate to exclude a second suit on a different cause of action.

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Shah v. Mohamed Haji Abdulla [1962] E.A. 769 (K)

Pioneer Investment Trust Ltd. v. Amarchand [1964] E.A. 703 (CA-K)

Separate suits may be brought for personal injuries and damage to a car arising out of
the same accident; the plaintiff is not bound to combine them in one suit.

Mutungi v. Kabuchi [1966] E.A. 454 (K)

Rule 3 Rule 4 Rule 3

Meaning of “mesne profits”.

Commissioner of Lands v. Sheikh M. Bashir [1958] E.A. 45 (CA-K)

Leave may be given after the institution of a suit.

Buike Estate Coffee Ltd. v. Lutabi [1962] E.A. 328 (U)

Rule 4 Rule 5 Rule 4


Rule 5 Rule 6 Rule 5
Rule 6 Rule 6
Rule 7 (c.f. section 7) Rule 7

In the absence of a counterclaim, a declaration should not be made in favour of a


defendant, except possibly where it is merely the negative of the declaration claimed in
the plaint.

Abdul Rehman v. Gudka [1957] E.A. 4 (CA-K)

Rule 7
Rule 8 Rule 8

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RECOGNIZED AGENTS AND ADVOCATES

Kenya: Order II Tanganyika: Order III Uganda: Order III


Rule 1 Rule 1 Rule 1
(and see the Appearances (and see the Civil
by Officers of the Procedure (Government
Government and of the Proceedings) Rules (S.I.
East African Common 69-1), r. 4)
Services Organization
Rules, 1963, (R.L. Cap.
453, Supp. 64, p. 3)

A corporation cannot appear by a manager, as such.

East African Roofing Co. Ltd. v. Pandit (1954) 27 K.L.R. 86 (K)

Rule 2 Rule 2 Rule 2


Rule 3 Rule 3 Rule 3

The delivery of an order to a person who is not a “recognized agent” of the person to
be served does not amount to service, even though the order in fact reaches that
person.

Narbheram Chakubhai v. Patel (1948) 6 U.L.R.211 (U)

Rule 4
Rule 4 Rule 5 Rule 4

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Where an advocate has ceased to act for lack of instructions, service of the hearing
notice at his address is good if the defendant has not furnished any other address.

Elkan v. Patel [1960] E.A. 340 (U)

Rule 5 Rule 6 Rule 5


Rule 6
Rule 7
Rule 8
Rule 9
Rule 10
Rule 11
Rule 12

INSTITUTION OF SUITS

Kenya: Order IV Tanganyika: Order IV Uganda: Order IV


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2

ISSUE AND SERVICE OF SUMMONS

Kenya: Order V Tanganyika: Order V Uganda: Order V


Rule 1 (c.f. rules 1, 2 and 5) Rule 1

Meaning of “duly instructed” (Kenya rule distinguished from the Indian rule).

Finaughty v. Prinsloo [1958] E.A. 657 (CA-K)

The requirements of signing and sealing are mandatory.

Kaur v. City Auction Mart [1967] E.A. 108 (U)

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There is a reputable presumption that a person signing a summons as Action Deputy


Chief Registrar has been duly authorized.

A. Baumann & Co. (Uganda) Ltd. v. Nadiope [1968] E.A. 306 (U)

The affixing of an incorrect seal is a mere irregularity.

Nanjibhai Prabhudas & Co. Ltd. v. Standard Bank Ltd. [1968] E.A. 670 (CA-
K)

(c.f. rule 1) Rule 1 (c.f. rule 1)


(c.f. rule 1) Rule 2 (c.f. rule 1)
Rule 2 Rule 3 Rule 2
(Rule 5) Rule 4 (Rule 7)
(Rule 1) Rule 5 (Rule 1)
(Rule 7) Rule 3
(Rule 8) Rule 4
Rule 3 Rule 5
Rule 4 Rule 6 Rule 6
Rule 7 (Rule 3)
Rule 8 (Rule 4)
Rule 5 (Rule 4) Rule 7
Rule 6 Rule 8
Rule 9
Rule 7 Rule 10 Rule 9

The requirement that a duplicate be delivered or tendered is mandatory, and if not


complied with, the service is bad.

Erukana Kavuma v. Mehta [1960] E.A.305 (U)

The affixing of an incorrect seal is a mere irregularity.

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Nanjibhai Prabhudas & Co. Ltd. v. Standard Bank Ltd. [1968] E.A. 670 (CA-
K)

Rule 8 Rule 11 Rule 10

A defendant should not be joined on the record with an endorsement that he is not to
be served.

Damodar Jamnadas v. Noor Valji [1961] E.A. 615 (CA-K)

Rule 9 Rule 12 Rule 11


Rule 9A
Rule 10 Rule 13 Rule 12
Rule 11 Rule 14 Rule 13
Rule 12 Rule 15 Rule 14

Meaning of “cannot be found”; perfunctory inquiries not enough.

Narbheram Chakubhai v. Patel (1948) 6 U.l.R. 211 (U)

Erukana Kavuma v. Mehta [1960] E.A. 305 (U)

Pirbhai Lalji & Sons Ltd. v. Hassanali Devji [1962] E.A. 306 (U)

Rule 13 Rule 16 Rule 15

The rule is mandatory and non-compliance means that service has not been effected.

Narshidas M. Mehta & Co. Ltd. v. Baron Verheyen (1956) 2 T.L.R. (R.) 300
(T)

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Rule 14 Rule 17 Rule 16

Does not apply to service on a corporation.

Nzioki s/o Mutweita v. Akamba Handicraft Industries Ltd. (1954) 27 K.l.R. 21


(K)

The affixing of a copy of the summons is no service if diligence has not been shown in
trying to find the defendant.

Omuchilo v. Machiwa [1966] E.A. 229 (K)

Rule 15 Rule 17

Failure to record the name and address of the person identifying the person to be
served renders an affidavit of service incurably defective.

M.B. Automobiles v. Kampala Bus Service [1966] E.A. 480 (U)

Rule 18
Rule 16 Rule 19 Rule 18
Rule 17 Rule 20 Rule 19
Rule 21
Rule 22
Rule 23
Rule 18 Rule 24 Rule 20
Rule 19 (Rule 25) Rule 21
(Rule 26)
Rule 20 Rule 27 Rule 22
Rule 21 Rule 23

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The plaint must state the facts on which the court is asked to assume jurisdiction.

Assanand and Sons (Uganda) Ltd. v. East African Records Ltd. [1959]
E.A.360 (CA-K)

The jurisdiction of the court is limited by the definition of the circumstances in which
service outside the jurisdiction may be allowed.

Karachi Gas Co. Ltd. v. Issaq [1965] E.A. (CA-K)

Failure to make full and fair disclosure justifies discharging an order for service; a
probable cause of action must be shown.

Donnebaum v. Mikolaschek [1966] E.A. 25 (K)

A Kenya court can set aside the service of its own process, wherever effected.

Nanjibhai Prabhudas & Co. Ltd. v. Standard Bank Ltd. [1968] E.A. 670 (CA-
K)

Rule 22 Rule 24
Rule 23 Rule 25
Rule 24 Rule 26
Rule 25 Rule 27
Rule 26 Rule 28

Services of a summons instead of a notice is an irregularity which may be waived.


Nanjibhai Prabhudas & Co. Ltd. v. Standard Bank Ltd. [1968] E.A. 670 (CA-
K)

Rule 27 (c.f. rule 33) Rule 29


Rule 28 Rule 30

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Rule 28A
Rule 28
Rule 29
Rule 30
Rule 31
Rule 32
(c.f. rule 27) Rule 33 (c.f. rule 29)
Rule 29 (c.f. The Foreign Tribunals Rule 31
(and see Rules of Court (Service of Process) Rules, (and see Foreign Tribunal
(G.N. No. 1356 of 1952), 1964 (R.L. cap. 453 Supp. Process Rules (S.I. 41-6)
Part V) 64 p. 24))
Rule 30 do Rule 32
Rule 31 do
Rule 32 Rule 33

PLEADINGS GENERALLY

Kenya: Order VI Tanganyika: Order VI Uganda: Order VI


Rule 1
(c.f. O.VII, r.8) Rule 2 (c.f. O. VII, r. 9)
Rule 1 Rule 3 Rule 1

As a general rule, relief not founded on the pleadings will not be given.

Gandy v. Caspar Air Charters Ltd (1956) 23 E.A.C.A. 139 (CA-K)

While the general rule is that parties should be bound by their pleadings, an incorrect
description of a particular fact should not be fatal where the particulars of the claim
have been given with reasonable precision.

Patel v. Fleet Transport Co. Ltd [1960] E.A. 1025 (CA-K)

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Relief may be granted where allegations at the hearing are not inconsistent with the
pleadings and are within the issues framed.

H.J. Stanley & Sons Ltd. v. Alibhai [1963] E.A. 594 (T)

Where a plaintiff’s cause of action, or his title to sue, depends on a statute, he must
plead all facts necessary to bring him within that statute.

New Era Stores v. Ocean Trading Co. (1950) 24(1) K.L.R. 53 (K)

It is not necessary to plead compliance with statutory procedural requirements; there is


no duty to anticipate a defence.

Narsinh Valji v. Shukla L.R.S. No. 1 of 1967, p. 9 T)

Consideration is a fact which must be pleaded unless implied by law.

Patel v. Central African Commercial Agency [1959] E.A. 903 (CA-T)

Facts giving rise to a plea of waiver or estoppel should be pleaded.

Popatlal Hirji v. I.H. Lakhani & Co. (E.A.) Ltd. [1960] E.A. 437 (U)
Balwant Singh v. Kipkoech arap Serem [1963] E.A. 651 (CA-K)
Damodar Jinabhai & Co. Ltd. v. Eustace Sisal Estates Ltd. [1967] E.A. 153
(CA-T)

Where a claim is based upon a trade usage, the precise nature of the usage must be
pleaded.

Harilal & Co. V. Standard Bank Ltd. [1967] E.A. 512 (CA-K)

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Rule 1A
Rule 2 Rule 4 Rule 2
Rule 3 Rule 5 Rule 3

Not appropriate where the defence is inevitable accident.

Taherali Rasulbhai v. Shaukatali Chaudrey [1963] E.A. 157 (K)

Particulars ordered where the written statement of defence alleges that the plaint is bad
in law.

Kashibai v. Sempagama [1967] E.A. 16 (U)

Where a defendant’s attitude is purely defensive, the plaintiff cannot, by asking for
particulars, compel him to make positive assertions.

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Joshi v. Uganda Sugar Factory Ltd. [1968] E.A. 570 (CA-U)

A plaintiff who says he is not in possession of further or better particulars may be


ordered to furnish the best particulars be can.

Abdulla Sulemanji v. Esmail Jivanjee Civil Appeal No. 36 of 1968 (not yet
reported) (CA-K)

Rule 3A
Rule 4 Rule 6 Rule 4

The performance of a condition precedent need not be specifically pleaded, except


where a party desires to put the performance or occurrence of any condition precedent
in issue.

Hormusji K. Hathadaru v. Trustees for the Port of Aden Civil Appeal No. 79
of 1963 (unreported) (CA-K)

Rule (c.f. O. VIII, r. 2) Rule 5

Where a defendant is primarily liable on a bill or note, it is for him to aver facts which
disentitle the plaintiff to sue (e.g. that the plaintiff has endorsed it away).

Shah v. Patel [1961] E.A. 397 (CA-K)

Facts giving rise to a plea of waiver or estoppel should be pleaded.

Balwant Singh v. Kipkoech arap Serem [1963] E.A. 651 (CA-K)

Rule 6 Rule 7 Rule 6

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The remedy for a breach is an application to strike out the offending pleading either
before or at the hearing.

Darcy v. Jones [1959] E.A. 121 (K)

Rule 7 (c.f. O. VIII, r. 3) Rule 7

There is no material difference between refusal to admit an allegation and denial of it.

Joshi v. Uganda Sugar Factory Ltd [1968] E.A. 570 (CA-U)

A general denial may be valid and effectual.

Shah v. Patel [1961] E.A. 397 (CA-L)

Rule 8 Rule 8
Rule 9 (c.f. O. VIII, r. 4) Rule 9

As to when a denial is evasive.

Joshi v. Uganda Sugar Factory Ltd [1968] E.A. 570 (CA-U)

Rule 10 Rule 8 Rule 10


Rule 11 Rule 9 Rule 11

The making of copies of promissory notes attaching to the plaint is unnecessary and
the cost will be disallowed.

Haji Abdurahim v. Abdulla Khimji (1929-30) 12 K.L.R. 58 (K)

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If notice of dishonour of a bill of exchange is necessary, it must be averred in the


plaint, but if it is unnecessary, there need be no averment if the facts which make it
unnecessary are pleaded.

Husseinali Dharamsi Hasmani v. National Bank of India Ltd. (1937) 4


E.A.C.A. 55 (CA-T)

African Overseas Trading Co. V. Bhagwanji Harjiwan [1960] E.A. 417 (T)

Patel v. Dhamji Nanji [1960] E.A. 410 (CA-K)

Rule 12 Rule 10 Rule 12

In a suit for defamation, a general allegation of malice is sufficient, and where the
defence is privilege, it is not necessary to plead express malice in reply.

Hasham Suleman Ltd. v. Sayani [1963] E.A. 603 (T)

Malice may be argued even though it has not been pleaded in reply to a defence of
qualified privilege.

Mangat v. Sharma [1968] E.A. 620 (T)

Rule 13 Rule 11 Rule 13


Rule 14 Rule 12 Rule 14
Rule 15 Rule 13 Rule 15
Rule 16 Rule 16
(Rule 25) Rule 14 (Rule 25)
Rule 15
Rule 17 Rule 16 Rule 17

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Appeals against the exercise of its discretion by the superior court will only be
entertained where they are based on some embarrassment or other injustice of
substance.

Lakhani v. Bhojani (1950) 17 E.A.C.A. (CA-K)

Cannot be used, in lieu of an appeal, to have struck out amendments already allowed
by the court.

Isher Singh v. Patel (1952) 19 E.A.C.A. 64 (CA-K)

Does not relate to the striking out of any pleadings as a whole.

Hagod Jack Simonian v. Johar [1962] E.A. 336 (CA-K)

Should not be used where the pleading is defective only in that it does not contain
sufficient particulars.

Habib Javer Manji v. Vir Singh [1962] E.A. 557 (CA-K)

It is not exclusive so as to prevent the striking out of pleadings under the inherent
powers of the court.

Bank of India Ltd. v. Manibhai M. Patel Ltd. [1965] E.A. 638 (U)

Since third party procedure is limited to the issue of indemnity, a counterclaim in the
pleading of the third party will be struck out.

Total Oil Products Ltd. v. Malu [1966] E.A. 164 (K)

Rule 18 Rule 17 Rule 18

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An amendment ought to be allowed if thereby the real substantial question can be


raised between the parties and multiplicity of proceedings avoided.

Harji Karsan v. Monjee Raghavjee (1943) 10 E.A.C.A. 10 (CA-K)

and see Habib Jaffer Manji v. Vir Singh [1962] E.A. 557 (CA-K)

Amendments sought before the hearing should be freely allowed, if they can be made
without injustice to the other side.

Eastern Bakery v. Castelino [1958] E.A. 461 (CA-U)

Amendment may be allowed at a very stage, where it is necessitated solely by a


drafting error and there is no element of surprise.

General Manager E.A.R. & H.A. v. Thierstein [1968] E.A. 354 (K)

There is no objection to an amendment of the defence to deny liability after an initial


admission and payment into court.

Shah v. Queensland Insurance Co. Ltd [1962] E.A. 269 (K)

There is nothing inherently wrong in basing an amendment on the nature of the other
party’s pleadings - what amounts to “injustice”.

Hagod Jack Simonian v. Johar [1962] E.A. 336 (CA-K)

Application for leave to amend plaint refused so far as would introduce a new cause of
action - allowed when sought to plead an acknowledgment to show plaint not barred
by limitation.

African Overseas Trading Co. Acharya [1963] E.A. 468 (T)

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Leave to amend will be refused where a plaintiff seeks to add a new cause of action
which is inconsistent with his pleading and his evidence.

Patel v. Joshi (1952) 19 E.A.C.A. 42 (CA-K)

A proposed amendment which introduces an alternative defence may be allowed


notwithstanding inconsistency with the original pleading.

British India General Insurance Co. Ltd. v. G.M. Parmar & Co. [1966] E.A.
172 (CA-K)

An oral application to amend made during the trial may be allowed.

D.D. Bawa Ltd. v. Didar Singh [1961] E.A. 282 (U)

General Manager E.A.R. & H.A. v. Thievstein [1968] E.A. 354 (K)

Unrestricted leave to amend may be given but is generally undesirable in contested


cases.

Hasham Meralli v. Javer Kassam & Sons Ltd. [1957] E.A. 503 (CA-K)

(and see Meru Farmers Co-operative Union v. Abdul Aziz Suleman (No. 1)
[1966] E.A. 436 (CA=K)

It is the general and desirable practice to file a proposed amended plaint showing the
amendments in red ink but failure to do so is not fatal to the application.

Uganda Credit and Savings Bank v. Yosamu Muzei [1960] E.A. 660 (U)

Whether the amendment of a plaint speaks as from the commencement of the action:
see -

Eastern Radio Service v. Patel [1962] E.A. 818 (CA-K)

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Whether or not an amendment relates back, the court may take note of the date of the
amendment, if it is material to the issues.

South British Insurance Co. Ltd. v. Samiullah [1967] E.A. 659 (CA-K)

An appellate court will not interfere with the exercise of the trial judge’s discretion to
allow or refuse amendments unless satisfied that he has applied a wrong principle or
that manifest injustice would result; refusal of leave where the proposed amendment
would introduce inconsistent pleadings upheld.

Khan v. Roshan [1965] E.A. 289 (CA-K) (But see British India General
Insurance Co. Ltd. v. G.M. Parmar & Co. Infra)

Leave to amend plaint granted on appeal, where refused at trial for an erroneous
reason and where no additional evidence would be required.

Cheleta Coffee Plantations Ltd. v. Mehlsen [1966] E.A. 203 (CA-K)

Amendment allowed on appeal where ground of defence inadvertently omitted, no


further evidence being necessitated.

Jupiter General Insurance Co. Ltd. v. Rajabali Hasham and Sons [1960] E.A.
592 (CA-T)

Leave to amend refused at hearing of appeal where the issue was fundamental and
would call for further pleadings and possibly evidence.

G.P. Jani Properties Ltd. v. Dar es Salaam City Council [1966] E.A. 281 (CA-
T)

As to amendments involving the addition, substitution or removal of parties, see cases


cited under Order I.

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Rule 19 Rule 19

Mistake in name of plaintiff corrected.

Phakey v. World Wide agencies Ltd. (1948) 15 E.A.C.A. 1 (CA-K0

George and Company v. Pritam’s Auto Service (1955) 22 E.A.C.A. 233 (CA-
K)

Does not apply to suits brought by summary procedure.

Uganda Transport Co. Ltd. v. Count de la Pasture (1954) 21 E.A.C.A. 163


(CA-U)

Fixes the latest date at which an amendment without leave may be effected, but does
not prevent amendment without leave at any earlier time.

B.E.A. Timber Co. V. Inder Singh Gill [1959] E.A. 463 (CA-K)

Rule 20 Rule 20
Rule 21 Rule 21

On an application under this rule, the judge has no jurisdiction to dismiss the suit and
cannot invoke rule 29 (Kenya), since an application under rule 29 must be by motion.

Hagod Jack Simonian v. Johar [1962] E.A. 336 (CA-K)

A party will not normally be allowed to resile from a pleaded admission unless made
under a genuine mistake of fact.

International Life Insurance Co. (U.K) Ltd. v. Amin Civil App. Nai. 12 of
1968 (unreported) (CA-K)

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Rule 22 Rule 22
Rule 23 Rule 23
Rule 24 Rule 18 Rule 24
Rule 25 (Rule 14) Rule 25
Rule 26 Rule 26
Rule 27 Rule 27

The object of the rule is expedition and it should only be used where a point of law can
be decided on facts agreed or not in issue in the pleadings and where it will be decisive
of the litigation.

N.A.S. Airport Services v. A.G. Kenya [1959] E.A. 53 (CA-K)

Rule 28 Rule 28
Rule 29 Rule 29

An application to have a pleading struck out should always be made promptly by


motion - a party should not sit by and do nothing until the trial and then apply.

Habib Javer Manji v. Vir Singh [1962] E.A. 557 (CA-K)

Gives a discretionary power, which should only be used in plain and obvious cases.

Sarwan Singh v. Notkin (1952) 19 E.A.C.A. 117 (CA-K)


(and see Misango v. Musigire [1966] E.A. 390 (U))

The question whether a plaint discloses a cause of action must be determined upon a
perusal of the plaint alone, together with anything attached so as to form part of it and
upon the assumption that any express or implied allegations of fact in it are true.

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Jeraj Shariff & Co. V. Chotai Fancy Stores [1960] E.A. 374 (CA-U)

In deciding whether a plaint should be struck out, it is not proper to consider the
defence or a reply thereto; it is not unreasonable to apply under the rule simultaneously
with filing a defence.

Meru Farmers Co-operative Union v. Abdul Aziz Suleman (No. 1) [1966] E.A.
436 (CA-K)

An applicant must show by the pleadings alone that the suit is frivolous or vexatious,
otherwise, the inherent powers of the court must be invoked.

Baxi v. Bank of India Ltd. [1966] E.A. 130 (CA-U)

To show a reasonable cause of action, it is necessary to show the foundation of the


right alleged to have been violated, except where it is one implied by law.

Cottar v. A.G. Kenya (1938) 5 E.A.C.A. 18 (CA-K)

A plaint ought not to be struck out merely on the ground that the plaintiff is not likely
to succeed on it.

Hormusji K. Hathadaru v. Trustees for the Port of Aden Civil Appeal No. 79
of 1963 (unreported) (CA-A)

An application to strike out will be allowed and an application to amend refused where
the proposed amendment would not cure the defect.

Wambura v. Wathome [1968] E.A. 40 (K)

An application will not necessarily be rejected because the pleadings have been closed.

Shah v. United Africa Press Ltd. [1961] E.A. 93 (CA-K)

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Where a pleading has been struck out, so that there was no issue on it before the court,
it is not open to the judge to restore it in his judgement.

Shah Hemraj Bharmal v. Santosh Kumari [1961] E.A. 679 (CA-K)

An order “made in pursuance of this rule” means an order granting relief and does not
include an order refusing an application.

Smith Agard and Patel v. Seth (1952) 19 E.A.C.A. 34 (CA-K)

The reasons for striking out a plaint amount to a judgment for the purposes of appeal.

Kuna Arap Rono v. Swaran Singh Dhanjal (1966) E.A. 184 (K)

See also the cases cited under Order VII, rule 11 (Tanganyika and Uganda)
and, as regards vexatious proceedings, the Vexatious Proceedings Act (Cap.
41) (Kenya).

Rule 29A
Rule 30 Rule 30

Does not preclude an oral application for amendment during the court of a hearing.

D.D. Bawa Ltd. v. Didar Singh [1961] E.A. 282 (U)

PLAINT

Kenya: Order VII Tanganyika: Order VII Uganda: Order VII


Rule 1 Rule 1 Rule 1

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The plaint must show the foundation of the right alleged to have been violated, except
where it is a right implied by law.

Cottar v. A.G. Kenya (1938) 5 E.A.C.A. 18 (CA-K)

A plaintiff cannot succeed upon a cause of action not alleged in the plaint and which is
inconsistent with his pleadings and his evidence.

Patel v. Joshi (1952) 19 E.A.C.A. 42 (CA-K)

Ilanga v. Manyema Manyoka [1961] E.A. 705 (CA-T)

Every necessary fact must be pleaded; a necessary fact not pleaded cannot be implied
merely because otherwise another necessary fact pleaded could not be true; but what is
necessarily implied from its context must be read into a plaint; the correct approach to
a plaint is not the literal one.

Sullivan v. Alimohamed Osman [1959] E.A. 239 (CA-T)

Oriental Fire and General Insurance Co. Ltd v. Govinder Civil Appeal No. 39
of 1968 (not yet reported) CA-K)

The plaint must state the facts showing that the court has jurisdiction; a mere assertion
is not enough.

Assanand and Sons (Uganda) Ltd. v. East African Records Ltd. [1959] E.A.
360 (CA-K)

Where the plaintiff relies on the defendant’s residence or carrying on business as


conferring jurisdiction, the facts must be stated in the body of the plaint.

Motibhai Girdharibhai v. Thomas E. King & Co. (Overseas) Ltd. [1959] E.A.
270 (CA-A).

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In a suit against an executor, it is sufficient to aver in the plaint that the defendant is
such executor and it is not necessary to plead the taking out of probate or facts
showing that the defendant is an executor de son tort.

Panayotis N. Catravas v. Khanubai M.H. Bhanji [1957] E.A. 234 (T)

Consideration is a fact which must be pleaded unless implied by law.

Patel v. Central Africa Commercial Agency [1959] E.A. 903 (CA-T)

Quasi-contract, together with the special circumstances giving rise to it, must be
specially pleaded.

Choitram v. Lazar [1959] E.A. 157 (CA-K)

Failure to plead that the sum claimed represented an agreed or reasonable price for
goods delivered or services rendered is a defect of pleading but curable by amendment;
it is not so fundamental as to result in the plaint not disclosing a cause of action.

Lake Motors Ltd. v. Overseas Motor Transport (T) Ltd. [1959] E.A. 603 (T)

Amin Electrical Services v. Ashok Theaters Ltd. [1960] E.A. 298 (U) and as to
the necessity for amendment.

D.D. Bawa Ltd. v. Didar Singh [1961] E.A. 282 (U)

An agent claiming to be paid on a quantum merit should state the amount of his claim
but a principal or employer claiming a balance, subject to remuneration, need not.

St. Benoist Plantation Ltd. v. Alexander [1958] E.A. 144 (CA-K)

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If notice of dishonour of a bill of exchange is necessary, it must be averred in the


plaint, but if it is unnecessary, there need be no averment, if the facts which make it
unnecessary are pleaded.

Husseinali Dharamsi Hasmani v. National Bank of India Ltd. (1937) 4


E.A.C.A. 55 (CA-T)

African Overseas Trading Co. V. Bhagwanji Harjiwan [1960] E.A. 417 (T)

Patel v. Dhanji Nanji [1960] E.A. 410 (CA-K0

Where it is pleaded that the driver of a vehicle is the servant of the defendant, it is not
necessary to plead that he was driving in the course of his employment.

Commissioner of Transport v. Gohil [1959] E.A. 936 (T)

Helena Yakobo v. Tanganyika Contractors [1963] E.A. 261 (T)

Facts giving rise to a plea of waiver or estoppel should be pleaded; when raised by the
plaintiff, facts relating to estoppel will normally be pleaded in the reply, not in the
plaint.

Balwant Singh v. Kipkoech arap Serem [1963] E.A. 651 (CA-K)

Damodar Jinabhai & Co. Ltd. v. Eustace Sisal Estates Ltd. [1967] E.A. 153
(CA-T)

In a claim for an account, the omission of a claim for payment of any sum due is not
fatal.

Choitram v. Dadlani [1958] E.A. 641 (CA-K)

While it is not the usual course, there is no fatal objection to the pleading in a plaint of
facts negativing limitation.

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Isher Singh v. Patel (1952) 19 E.A.C.A. 64 (CA-K)

It is not necessary for the plaint to anticipate a possible defence.

N.A.S. Airport Services v. A.G. Kenya [1959] E.A. 53 (CA-K)

Failure to quantify special damage does not mean that the plaint is bad as failing to
disclose a cause of action and while it is obligatory to state the value of the subject-
matter of a suit, failure to do so is not a ground for rejecting a plaint.

Kaggwa v. Vallabhdas Vithaldas & Sons Ltd. [1965] E.A. 165 (U)

Special damage must always be pleaded.

Hassan v. Hunt [1964] E.A. 201 (CA-T)

Where a person sues for agreed or liquidated damages and the court decides that the
agreed amount constitutes a penalty, the court may award the actual damage even
though there is no alternative claim for it in the plaint.

Guaranty Discount co. Ltd. v. Ward [1961] E.A. 285 (CA-K)

Hassan v. Hunt [1964] E.A. 201 (CA-T)

Damages need not necessarily be claimed as special damages because a definite figure
can be ascertained.

Shah v. Mohamed Haji Abdulla [1962] E.A. 769 (K)

Loss of business is not exclusively a matter of special damage.

Eastern Radio Service v. Patel [1962] E.A. 818 (CA-K)

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The common form claim for “further or other relief” does not entitle a court to award
general damages.

Municipal Board of Mombassa v. Ogilvie (1956) 23 E.A.C.A. 117 (CA-K)

Facts appearing in an annexure to a plaint are to be regarded as appearing in the plaint.

Jeraj Shariff & Co. V. Chotai Fancy Stores [1960] E.A. 374 (CA-U)

African Overseas Trading Co. V. Acharya [1963] E.A. 478 (T)

Rule 2 Rule 2 Rule 2


Rule 3 Rue 3 Rule 3
Rule 4 Rule 4 Rule 4

Where a person sues as administrator before obtaining letters of administration the suit
is a nullity and cannot be validated by a subsequent grant.

Bolton v. Salim Khambi [1958] E.A. 360 (T)

Rule 5 Rule 5 Rule 5


Rule 6 Rule 6

The existence of a mutual, open and current account is a fact that must be pleaded.

H.J. Stanley & Sons Ltd. v. Zahor [1963] E.A. 564 (T)

Rule 6 Rule 7 Rule 7

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A declaratory judgment should only in very special circumstances be granted in a suit


in which it was not specifically prayed.

Shah v. South British Insurance Co. Ltd. [1962] E.A. 131 (CA-K)

A plaintiff claiming alternative reliefs will not be required to elect between them,
except where the plaint contains averments so inconsistent as to be embarrassing.

Khan v. Roshan [1965] E.A. 289 (CA-K)

Rule 7 Rule 8 rule 8


Rule 8 (c.f. O. VI, r. 2) Rule 9
Rule 9
Rule 9 Rule 10 Rule 10
Rule 11 Rule 11

The fact that the suit is partly barred by limitation is no ground for rejecting the plaint.

Abdul Ghani v. Khan Bahadur (1932) 14 K.L.R. 40 (CA-K) (No longer


relevant to Kenya)

The procedure must be distinguished from dismissal of a suit on an issue of law.

Nurdin Ali Dewi v. G.M.M. Meghji & Co. (1953) 30 E.A.C.A. 132 (CA-K)

A plaint should not be rejected where a serious and important point of law is to be
determined; the case should go to trial and the point then be taken on the pleadings.

Katikiro of Buganda v. A.G. Uganda [1958] E.A. 765 (U)

The rule is mandatory on the court.

Sullivan v. Alimohamed Osman [1959] E.A. 239 (CA-T)

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In Tanganyika, where an essential element is not pleaded, there is no cause of action


and therefore no plaint which can be amended.

Husseinali Dharamsi Hasmani v. National Bank of India Ltd. (1937) 4


E.A.C.A. 55 (CA-T)

In Uganda, the rule must be read subject to S. 103 of the Civil Procedure Act and
therefore “does not disclose a cause of action’ must be taken to mean that the plaint
must be such that no legitimate amendment can be made which would make it disclose
a cause of action.

Central District Maize Millers Assn. Mbale v. Maciel & Co. Ltd. (1964) 6
U.L.R. 130 (U);

Gupta v. Bhamra [1965] E.A. 439 (U);

But see observation of O’Connor, P., in Price v. Kelsall [1957] E.A. 752 (CA-
U) at p. 663.

Whether, in deciding if a plaint discloses a cause of action, the court is entitled to look
at further and better particulars.

G.P. Jani Properties Ltd. v. Dar es Salaam City Council [1966] E.A. 281 (CA-
T)

Where the remedy sought in the plaint is not available, the possibility that an
alternative remedy exists cannot establish a cause of action.

Mukibi v. Bhavsar [1967] E.A. 473 (CA-U)

[And see cases cited under rule 1 and those cited under O. VI, r. 29 (Kenya
and Uganda).]

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Rule 12 Rule 12
Rule 13 Rule 13
Rule 14 Rule 14
Rule 15 Rule 15
Rule 16 Rule 16
Rule 17 Rule 17
Rule 18 Rule 18

When leave should be granted.

Dattani v. Ahmad [1959] E.A. 218 (U)

Rule 10 Rule 19

DEFENCE AND COUNTERCLAIM

Kenya: Order VIII Tanganyika: Order VIII Uganda: Order VIII


Rule 1 (c.f. rule 1) Rule 1

A defendant who has entered an appearance but failed to file his defence in time is at
the meroy of the court, but the court should be loathe to deprive him of the
opportunity of defending the suit; in deciding whether to exercise its discretion, the
court should consider the nature of the defence as well as the reason for delay.

Sodha v. Hemraj (1952) 7 U.L.R. 7 (U)

(c.f. rule 1) Rule 1 (c.f. rule 1)


(c.f. O. VI, r. 5) Rule 2 (c.f. O. VI, r. 5)

Facts giving rise to a plea of estoppel should be pleaded.

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Damodar Jinabhai & Co. Ltd. v. Eustace Sisal Estates Ltd. [1967] E.A. 153
(CA-T)

A defence which has not been pleaded cannot be argued.

G.P. Jani Properties Ltd. v. Dar es Salaam City Council [1966] E.A. 281 (CA-
T)

Rule 2 (Rule 9) Rule 2

The amount by which the counterclaim in one suit exceeds the claim cannot be pleaded
as a counterclaim in a separate suit between the same parties where no application has
been made for consolidation.

Kartar Singh v. Tilles (1952) 25 K.L.R. 10 (K)

Grounds for exercise of discretion to exclude counterclaim.

General Trading co. Ltd. v. Patel [1958] E.A. 702 (CA-U)

If claim and counterclaim are each with the jurisdiction of the court, it is immaterial
that the aggregate is in excess.

Ganatra v. Uganda Electricity Board [1963] E.A. 26 (U)

A defendant has the choice whether to counterclaim or bring a separate action.

Karshe v. Uganda Transport Co. Ltd. [1967] E.A. 774 (U)

Rule 2A
(c.f. O. VI, r. 7) Rule 3 (c.f. O. VI, r. 7)

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Allegation of fact not expressly denied in written statement of defence; whether


impliedly admitted.

Yusuf Alimohamed Osman v. D.T. Dobie & Co. (Tanganyika) ltd. [1963] E.A.
288 (T)

A defendant is not required to plead to particulars.

Narmadashanker M. Joshi v. Uganda Sugar Factory Ltd. [1968] E.A. 570 (CA-
U)

Rule 3 (c.f. rule 3) Rule 4


Rule 4 Rule 5
Rule 5 Rule 6
Rule 6 Rule 7
Rule 7 (c.f. rule 10) Rule 8
Rule 8 Rule 9
Rule 9 Rule 10
Rule 10 (c.f. rule 11) Rule 11
Rule 11 (Rule 12) Rule 12

Apparent duplication with rule 2 (q.v.).

General Trading Co. Ltd. v. Patel [1958] E.A. 702 (CA-U)

Rule 12 Rule 13
Rule 13 Rule 14

When judgment should be given for the balance.

Kiska Ltd. v. de Angelis Civil Appeal NO. 9 of 1968 (not yet reported) (CA-
K)

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Rule 14 Rule 15
Rule 6
Rule 15 Rule 7 Rule 16
Rule 16 Rule 8 Rule 17
Rule 17 (c.f. rule 13) Rule 18

Where no reply is filed, all averments in the statement of defence are put in issue.

Patel v. Joshi (1952) 19 E.A.C.A. 42 (CA-K)

Onama v. Uganda Argus Ltd. Civil Appeal No. 33 of 1968 (not yet reported)
(CA-U)

Facts giving rise to a plea of waiver or estoppel should be pleaded; when raised by the
plaintiff, facts relating to estoppel will normally be pleaded in the reply.

Balwant Singh v. Kipkoech arap Serem [1963] E.A. 651 (CA-K)

(Rule 2) Rule 9 (Rule 2)


(c.f. rule 7) Rule 10 (c.f. rule 8)
Rule 18 Rule 19

Where the defendant has filed a defence but failed to serve a copy on the plaintiff, such
failure must be proved by affidavit or otherwise.

Faxal Haq v. Wasawa Singh (1940) 19 K.L.R. 23 (K)

(c.f. rule 10) Rule 11 (c.f. rule 11)


(Rule 11) Rule 12 (Rule 12)
(c.f. rule 17) Rule 13 (c.f. rule 18)

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Rule 14
(c.f. O. IX, r. 9) Rule 15 (c.f. IX, r. 8A)
Rule 19 Rule 20

APPEARANCE OF PARTIES AND CONSEQUENCES OF NON-


APPEARANCE

Kenya: Order IX Tanganyika: Order IX Uganda: Order IX


Rule 1 Rule 1

A post office box number is not an address for service.

Ram Nath Gupta v. Mohamed Rawji (1954) 27 K.L.R. 43 (K)

It is practice in Kenya to allow conditional appearances.

Nanjibhai Prabhudas & Co. Ltd. v. Standard Bank Ltd. [1968] E.A. 670 (CA-
K)

(and see, for example, Marwaha v. Pandit Dwarka Nath (1952) 25 K.L.R. 45
(K)

Save in exceptional circumstances, the entry of an unconditional appearance will be


taken to be a waiver of any irregularity in the process.

Nanjibhai Prabhudas & Co. Ltd. v. Standard Bank Ltd [1968] E.A. 670 (CA-
K)

Rule 1A Rule 1
Rule 1B
Rule 2 Rule 2
Rule 3 Rule 3

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The filing of an affidavit of service should be required as a general practice in every


case.

Kanji Naran v. Velji Ramji (1954) 21 E.A.C.A. 20 (CA-K)

Rule 4 Rule 4

It is unnecessary for the plaintiff formally to prove his case.


Eksteen v. Kutosi s/o Bukua (1951) 24 (2) K.L.R. 90 (K)

Does not apply to claims to pecuniary damages (obiter).

Mwatsahu v. Maro [1967] E.A. 42 (K)

Rule 5 Rule 5
Rule 6 Rule 6
Rule 7 Rule 7
Rule 7A
Rule 8 Rule 8

A suit cannot be heard ex parte if the defendant has entered an appearance, even
though it was entered out of time.

Fisher, Simmons & Rodway (East Africa) Ltd. v. Visram (1932) 14 K.L.R. 93
(K)

Smith v. Auto Electric Services (1951) 24(2) K.L.R. 22 (K)

Rule 9 (c.f. O. VIII, r. 15) Rule 8A

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Suit against defendants jointly and/or severally, case cannot proceed ex parte against
one defendant who has not filed his defence until the case against another who has filed
a defence has been determined.

Hathisang Premji Patel v. Ramji Jethabhai (1947) 14 E.A.C.A. 23 (CA-K)

Where the defendants are jointly but not severally liable, judgment against one or more
destroys the cause of action against the other or others.

Total Oil Products (E.A.) Ltd. v. Nuato Ltd. [1968] E.A. 611 (K)

No notice of hearing need be served on a defendant who has failed to file a defence.

Zirabamuzale v. Corret [1962] E.A. 694 (U)


but see Otanga v. Nabunjo [1965] E.A. 384 (U)

The power conferred by the proviso to sub-rule (2) is discretionary; where a defence
has been filed out of time it cannot be ignored.

Rajinder Nath Dhiri v. Preetam Sign (1950) 24(1) K.L.R. 26 (K)


Patel v. Othwele (1955) 28 K.L.R. 27 (K)

Rule 10 Rule 9

The court has no discretion but must set aside judgment entered by the Registrar
where it appears there has been no proper service.

Kanji Naran v. Velji Ramji (1954) 21 E.A.C.A. 20 (CA-K)

Does not cease to apply because a decree has been extracted.

Fort Hall Bakery Supply Co. V. Wangoe [1958] E.A. 118 (K)

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Factors which justify granting an application.

Kimani v. McConnell [1966] E.A. 547 (K)

Mbogo v. Shah [1968] E.A. 93 (CA-K)

Sebei District Administration v. Gasyali [1968] E.A. 300 (U)

Quaere: where restricted to ex parte judgments; meaning of ex parte.

Kimani v. McConnel [1966] E.A. 547 (K)

Quaere: where the rule applies to a judgement irregularly obtained.

Magon v. Ottoman Bank [1968] E.A. 156 (CA-K)

Rule 10
Rule 11 Rule 1 Rule 11
Rule 12 Rule 12
Rule 13 Rule 2 Rule 13
Rule 14 Rule 3 Rule 14
Rule 15 Rule 4 Rule 15
Rule 16 Rule 5 Rule 16
Rule 17 (c.f. rule 6) Rule 17

Where the defendant’s advocate asks for an adjournment and on it being refused
withdraws, the subsequent proceedings are not ex parte.

Din Mohamed v. Lalji Visram & Co (1937) 4 E.A.C.A. 1 (CA-K)

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The fact that the advocate for the defendant seeks leave to withdraw, on the ground
that he has been unable to obtain instructions, is not a reason to adjourn for the
defendant to be served personally.

Nanji Ratanshi v. Shah (1950) 6 U.L.R. 254 (U)

Where a defendant who has entered an appearance and filed a defence fails to appear
at the hearing, the plaintiff must prove his claim.

Eksteen v. Kutosi s/o Bukua (1951) 24(2) K.L.R. 90 (K)

(c.f. rule 17) Rule 6 (c.f. rule 17)


Rule 18 Rule 7 Rule 18
Rule 19 Rule 8 Rule 19

Is mandatory; the court cannot grant an adjournment at the request by letter of a


plaintiff who does not appear.

Sheriff Yusuf v. Phillip Kioko (1951) 24(2) K.L.R. 75 (K)

The mere presence of a party at the hearing is sufficient to constitute “appearance”.

Shah Kachra Merag v. Gandhi & Co. [1957] E.A. 466 (CA-K)

“Decree” means judgment (obiter).

Fort Hall Bakery v. Wangoe [1958] E.A. 118 (K)

“Plaintiff” does not mean only plaintiff in person but may include his advocate.

Finaughty v. Prinsloo [1958] E.A. 657 (CA-K)

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Salem A.H. Zaidi v. Faud H. Humeidan [1960] E.A. 92 (CA-A)

Rule 20 Rule 9 Rule 20

Meaning of “sufficient cause”; a mistake by the plaintiff’s advocate, though negligent,


may be accepted.

Shabir Din v. Ram Parkash Anand (1955) 22 E.A.C.A. 48 (CA-K)

Rule 21 Rule 10 Rule 21


Rule 22 Rule 11 Rule 22
Rule 23 Rule 12 Rule 23
Rule 24 Rule 13 Rule 24

Where the defendant’s advocate asks for an adjournment and on it being refused
withdraws, the subsequent proceedings are not ex parte.

Din Mohamed v. Lalji Visram & Co. (1937) E.A.C.A. 1 (CA-K)

“Decree” means “judgment” and the rule is therefore superfluous having regard to rule
10.

Fort Hall Bakery Supply Co. V. Wangoe [1958] E.A. 118 (K)

While the judge has a discretion as to terms, an order for costs should not exceed
those thrown away.

Patel v. Start Mineral Water and Ice Factory (Uganda) Ltd. [1961] E.A. 454
(CA-U)

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An oversight by an advocate is not “sufficient cause”.

Eksteen v. Kutosi s/o Bukua (1951) 24(2) K.L.R. 90 (K)

It is not open to the court on an application under the rule to consider the merits of the
suit.

Mitha v. Ladak [1960] E.A. 1054 (T)

What constitutes “sufficient cause” for non-appearance; failure to instruct advocates


not enough; no notice of hearing required where no defence filed.

Zirabamuzale v. Corret [1962] E.A. 694 (U)

Ignorance of an unrepresented defendant held sufficient cause.

Otanga v. Nabunjo [1965] E.A. 384 (U)

The kind of decree to which the rule applies is one which, when it was made, could
lawfully be made ex parte.

Bhanji v. Bortot [1965] E.A. 522

Rule 25 Rule 14 Rule 25


Rule 26 Rule 26

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EXAMINATION OF PARTIES BY THE COURT

Tanganyika: Order X
Rule 1
Rule 2

INTERROGATORIES, DISCOVERY AND INSPECTION

Kenya: Order X Tanganyika: Order XI Uganda: Order X


Rule 1 Rule 1 Rule 1

The requirement that interrogatories when delivered shall have a note at foot stating
which parties are required to answer which interrogatories is mandatory and as a
matter of practice such note should always appear on the draft submitted to the court.

D’Souza v. Ferrao [1959] E.A. 1000 (CA-K)

Rule 2 Rule 2 Rule 2

Interrogation must be necessary and not unreasonable, and these considerations extend
to the number of persons required to answer particular interrogatories as well as to the
material sought to be included.

D’Souza v. Ferrao [1959] E.A. 1000 (CA-K)

There is no right to administer interrogatories and they are not intended to provide a
substitute for evidence.

Aggarwal v. Official Receiver [1967] E.A. 585 (CA-T)

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Rule 2A
Rule 3 Rule 3 Rule 3
Rule 4 Rule 4
Rule 5 Rule 4 Rule 5
Rule 6 Rule 5 Rule 6
Rule 6 Rule 7
Rule 7 Rule 7 Rule 8
Rule 8 Rule 9
Rule 9 Rule 8 Rule 10
Rule 10 Rule 9 Rule 11
Rule 11 Rule 10 Rule 12

It is the duty of advocates in ordinary cases to carry out discovery of documents and
preparation of an agreed bundle.

Taj Deen v. Dobrosklonsky [1957] E.A. 379 (CA-K)

An order for discovery should not be made except on the application of a party.

Abdulla Sulemanji v. Esmail Jivanjee Civil Appeal No. 36 of 1968 (not yet
reported) (CA-K)

Rule 12 Rule 11 Rule 13


Rule 12A
Rule 13 Rule 12 Rule 14
Rule 14 Rule 13 Rule 15
Rule 15 Rule 16
Rule 16 Rule 14 Rule 17
Rule 17 Rule 15 Rule 18
Rule 18 Rule 16 Rule 19

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An application under sub-rule (3) must (a) relate to specific documents; (b) state the
deponent’s belief as to the defendant’s possession of the documents; and (c) be based
on a belief that the documents are or have been n that possession, not a mere
deduction that they “must be” or have been.

Motor Mart & Exchange Ltd. v. Standard General Insurance Co. Ltd. [1960]
E.A. 616 (U)

Rule 19 Rule 17 Rule 20


Rule 20 Rule 18 Rule 21

A suit should only be dismissed where the default is willful; the rule may be invoked as
to outstanding issues when a case has been remitted by an appellate court.

Eastern Radio Service v. Tiny Tots [1967] E.A. 392 (CA-K)

Rule 21 Rule 19 Rule 22


Rule 22 Rule 20 Rule 23
Rule 22A
Rule 23 Rule 24

CONSOLIDATION OF SUITS

Kenya: Order XI Uganda: Order XA


unnumbered Rule 1

The order does not require that different causes of action arising out of the same
transaction be included in one suit.

Jadva Karsan v. Harman Singh Bhogal (1953) 20 E.A.C.A. 74 (CA-K)

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Rule 2

ADMISSIONS

Kenya: Order XII Tanganyika: Order XII Uganda: Order XI


Rule 1 Rule 1 Rule 1

A party will not normally be allowed to resile from a pleaded admission unless made
under a genuine mistake of fact.

International Life Insurance Co. (U.K.) Ltd. v. Amin Civil Application No.
Nai. 12 of 1968 (unreported) (CA-K)

Rule 2 Rule 2 Rule 2


Rule 3 Rule 3
Rule 4 Rule 3 Rule 4
Rule 5 Rule 5
Rule 6 Rule 4 Rule 6

Whether failure to file a defence amounts to an admission of facts pleaded.

Devji v. Jinabhai (1934) 1 E.A.C.A. 87 (CA-U)

Sodha v. Hemraj (1952) 7 U.L.R. 7 (U)

Judgment should not be given on an admission where there is a counterclaim, unless it


is frivolous.

Mohamed B.M. Dhanji v. Lulu & Co. [1960] E.A. 541 (T)

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Rule 7 Rule 5 Rule 7


Rule 8 Rule 6 Rule 8
Rule 9 Rule 7 Rule 9

PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

Kenya: Order XIII Tanganyika: Order XIII Uganda: Order XII


Rule 1
Rule 2
Rule 3
Rule 1 Rule 4 Rule 1

The rule that exhibits not duly endorsed will not be looked at by an appellate court is a
rule of practice only and will be relaxed where no injustice would result.

Alwi A. Saggaf v. Abed A. Algeredi [1961] E.A. 767 (CA-T)

Rule 2 Rule 5 Rule 2


Rule 6
Rule 3 Rule 7 Rule 3
Rule 4 Rule 8 Rule 4
Rule 5 Rule 9 Rule 5
Rule 6 Rule 10 Rule 6
Rule 7 Rule 11 Rule 7
Rule 8 Rule 8

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SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES


OF LAW OR ON ISSUES AGREED UPON

Kenya: Order XIV Tanganyika: Order XIV Uganda: Order XIII


Rule 1 Rule 1 Rule 1

The duty of frame issues is on the court and the fact that an issue was not framed
cannot be construed as an admission.

Oriental Dairy v. de Souza (1948) 23 K.L.R. 4 (K)

The issues may go beyond the pleadings.

Darcy v. Jones [1959] E.A. 121 (K)

DISPOSAL OF THE SUIT AT THE FIRST HEARING

Tanganyika: Order IV
Rule 1
Rule 2
Rule 3
Rule 4

Dismissal of a claim on failure to produce evidence is a judgement on the merits for the
purposes of res judicata.

Salem A.H. Zaidi v. Faud H. Humeidan [1960] E.A. 92 (CA-A)

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SUMMONING AND ATTENDANCE OF WITNESSES

Kenya: Order XV Tanganyika: Order XVI Uganda: Order XIV


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2
Rule 3 Rule 3 Rule 3
Rule 4 Rule 4 Rule 4
Rule 5 Rule 5 Rule 5
Rule 6 Rule 6 Rule 6
Rule 7 Rule 7 Rule 7
Rule 8 Rule 8 Rule 8
Rule 9 Rule 9 Rule 9
Rule 10 Rule 10 Rule 10
Rule 11 Rule 11 Rule 11
Rule 12 Rule 12 Rule 12
Rule 13 Rule 13 Rule 13
Rule 14
Rule 14 Rule 15 Rule 14
Rule 15 Rule 16 Rule 15
Rule 16 Rule 17 Rule 16
Rule 17 Rule 18 Rule 17
Rule 18 Rule 19 Rule 18
Rule 19 Rule 20 Rule 19
Rule 20 Rule 21 Rule 20

PROSECUTION OF SUITS AND ADJOURNMENTS

Kenya: Order XVI Tanganyika: Order XVII Uganda: Order XV


Rule 1

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Where refusal of an adjournment amounts to a denial of justice, an appellate court will


interfere; factors that are relevant to an application.

Rattan Singh v. Trilocman Singh (1952) 25 K.L.R. 73 (K)

Baldevkumar Mohindra v. Mathuradevi Mohindra (1953) 20 E.A.C.A. 56 (CA-


K)

Manubhai Bhailabhai Patel v. Gottfried (1953) 20 E.A.C.A. 81 (CA-K)

Rule 1 Rule 1

Application for adjournment by plaintiff’s advocate in the unexplained absence of the


plaintiff refused.

Abdala Habib v. Harban Singh Rajput [1960] E.A. 325 (U)

Rule 2 (Rule 4) Rule 2


Rule 3 Rule 2 Rule 3

It is improper for the court to reach a decision on fact at the close of the plaintiff’s
case without hearing the defendant.

Simewo Damulira v. Nanji (1948) 6 U.L.R. 173 (U)

Rule 4 Rule 3 Rule 4

Dismissal of a suit on failure to produce evidence is a judgment on the merits for the
purposes of res judicata.

Salem A.H. Zaidi v. Faud H. Humeidan [1960] E.A. 92 (CA-A)

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Rule 5 Rule 5
(Rule 2) Rule 4 (Rule 2)
Rule 6 Rule 5 Rule 6

Only a step taken on the record, such as an interlocutory application, amounts to a


“step taken”; an informal reference to arbitration is not enough; the court should be
slow to make an order where the suit can proceed without delay; the purpose of the
rule is to enable the court to disencumber itself of records where the parties have lost
interest.

Victory Construction Co. V. Duggal [1962] E.A. 697 (K)

Does not preclude the alternative remedy of re-institution of the suit under the inherent
powers of the court.

Rawal v. Mombasa Hardware Ltd. [1968] E.A. 392 (CA-K)

HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

Kenya: Order XVII Tanganyika: Order XVIII Uganda: Order XVI


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2

The High Court has inherent jurisdiction to waive the strict application of the rule and
has a duty to ensure that each party is given a fair opportunity to state his case and
answer the case against him.

Iron & Steelwares Ltd. v. C.W. Martyr & Co. (1956) 23 E.A.C.A. 175 (CA-U)

Where a party has based his case on forged evidence, for which he is responsible, he
will not be allowed to succeed by relying on other evidence.

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Karia v. Shah [1962] E.A. 43 (CA-K)

A defendant who makes a submission of no case may be put to his election whether to
call evidence or proceed with his submission.

Overseas Touring Co. (Road Services) Ltd. v. Africa Produce Agency (1949)
Ltd. [1962] E.A. 190 (CA-U)

Rule 3 Rule 3 rule 3


Rule 4 Rule 4 Rule 4
Rule 5 Rule 5 Rule 5
(c.f. rule 5) (c.f. rule 9) Rule 5A
Rule 6 (c.f. rule 5)

Where the record is silent and both parties were represented by counsel, an appellate
court will assume that the application of the rule was waived.

Ali Omar Mote v. Ali Siraj [1959] E.A. 883 (CA-K)

Rule 6
Rule 7 Rule 6 Rule 7

Although it may be unusual, there is nothing wrong in one party calling the other as is
witness; where no summons has been issued, the judge has a discretion whether or not
to require such party to give evidence.

Hirji v. Modessa [1967] E.A. 724 (CA-T)

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Rule 8 Rule 7 Rule 8


Rule 9 Rule 8 Rule 9
(c.f. rule 5) Rule 9 (c.f. rule 5A)
Rule 10 Rule 10 Rule 10

The rule contemplates that the procedure permitted should be adopted unless there is
good reason to the contrary.

Rattan Singh v. Mandavia C.C. No. 1175 of 1962 (unreported) (K)

Rule 11 Rule 11 Rule 11

Where the application is made upon notice, and the witness is within the jurisdiction, it
is sufficient if the affidavit states that he is a material witness and is about to go
abroad; it need not say what evidence he will give or that he is the only witness to the
facts.

Bishen Singh Chadha v. Mohinder Singh (1956) 29 K.L.R. 32 (K)

Rule 12 Rule 12 Rule 12


Rule 13 Rule 13 Rule 13
Rule 14 Rule 14

AFFIDAVITS

Kenya: Order XVIII Tanganyika: Order XIX Uganda: Order XVII


Rule 1 Rule 1 Rule 1

Reasons for allowing or refusing affidavit evidence in divorce proceedings.

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Thornhill v. Thornhill [1965] E.A. 268 (CA-U)

Rule 2 Rule 2 Rule 2


Rule 3 Rule 3 Rule 3

A garnishee application is not to be regarded as interlocutory.

Ishmael v. Uganda Co. Ltd (1934) 5 U.L.R. 99 (U)

Affidavits based on information or belief must disclose the source of information or


ground of belief.

Phakey v. World Wide Agencies Ltd. (1948) 15 E.A.C.A. 1 (CA-K)

Standard Goods Corporation Ltd. v. Harakhchand Nathu & Co. [1959] E.A.
360 (CA-K) (re-affirmed in Camille v. Merali [1966] E.A. 411 (CA-K)

Caspair Ltd. v. Gandy [1962] E.A. 414 (CA-U)

Kassamali Gulamhusein Co. (Kenya) Ltd. v. Kyrtatas Bros. Ltd. [1968] E.A.
542 (CA-K)

(But see Bains v. Halimabibi [1957] E.A. 13 (CA-K)

An affidavit which does not say whether it is made from the deponent’s knowledge or
from information and belief is incompetent.

Bombay Flour Mill v. Patel [1962] E.A. 803 (T)

Where an affidavit is clearly made on personal knowledge, a reference to “knowledge,


information and belief” may be treated as mere surplusage.

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Nandala v. Lyding [1963] E.A. 411 (CA-K))

An advocate should not swear a “belief” affidavit on information supplied by his client
if the client is available to swear of his own knowledge.

Yusuf Abdul Gani v. Fazal Garage (1955) 28 K.L.R. 17 (K)

Only applies to the High Court and subordinate courts and not to statutory
declarations tendered before the Registrar of Trade Marks.

London Overseas Trading Co. Ltd. v. Raleigh Cycle Co. Ltd. [1959] E.A.
1012 (U)

In interlocutory proceedings, an affidavit may include statements of fact the knowledge


of which was acquired from documents without those documents being exhibited.

Life Insurance Corporation of India v. Panesar [1967] E.A. 614 (CA-K)

Rule 4

APPLICATION FOR AN ACCOUNT

Kenya: Order XIX Uganda: Order XVIIA


Rule 1 Rule 1

Has no application where the plaintiff seeks accounts on a basis of wilful default.

Abdulla Jaffer Dewji v. Ali R.M.S. Dewji [1958] E.A. 558 (CA-K)

Rule 2 Rule 2

JUDGMENT AND DECREE

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Kenya: Order XX Tanganyika: Order XX Uganda: Order XVIII


Rule 1 Rule 1 Rule 1

Where a judgment was given without reasons and the reasons were later read in open
court, the procedure was treated as a curable irregularity.

Ramjibhai v. Rattan Singh (1953) 20 E.A.C.A. 71 (CA-K)

Reasons prepared subsequent to judgement and not delivered in open court are not
part of the judgement.

Saint v. Hogan (1953) 20 E.A.C.A. 85 (CA-K)

Where a decision was delivered orally and a written “judgment” prepared and signed in
chambers immediately afterwards but not delivered in open court, it was held to be no
judgemnt in law.

Gillani’s Modern Bakary v. Kuntner (1954) 21 E.A.C.A. 123 (CA-K)

Rule 2 Rule 2 Rule 2


Rule 3 Rule 3 Rule 3

Failure to sign a judgment which has been pronounced is not significant.

Matemba v. Matemba [1968] E.A. 646 (T)

Quaere: whether by necessary implication, sub-rule (3) means that there can be
review of a judgment.

Mohamed Haji Abdulla v. Ghela Manek Shah (1956) 23 E.A.C.A. 342 (CA-K)

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Rule 4 Rule 4 Rule 4

Meaning of “judgment”

Sheikha binti Ali v. Halima binti Said [1959] E.A. 500 (CA-K)

Where the trial judge is satisfied that an unspecified quantum of damage has been
proved, he may direct accounts.

Osman v. Ngoni-Matengo Co-operative Union Ltd. [1962] E.A. 1 (P.C.-T)

Rule 5 Rule 5 Rule 5

Even where issues have been framed which do not arise out of the pleadings, it is
desirable that the pleadings be amended.

Caltex (Africa) Ltd. v. Esmail Kassam [1965] E.A. 35 (CA-K)

It is advisable for a judge of first instance to decide all the issues raised.

Selle v. Associated Motor Boat Co. Ltd [1968] E.A. 123 (CA-Z)

Rule 6 Rule 6 Rule 6


Rule 7 (c.f. rule 7) Rule 7
(c.f. rule 7) Rule 7 (c.f. rule 7)
Rule 8 Rule 7A
Rule 8 Rule 8
Rule 9 Rule 9 Rule 9
Rule 10 Rule 10 Rule 10
Rule 11 Rule 11 Rule 11

Cannot be invoked by the defendant in a suit brought under summary procedure in


Tanganyika.

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Hassanali Jaffer Peerani v. Horn (1930) 1 T.L.R. (R) 467 (T)

May be invoked by the defendant in a suit brought under summary procedure in


Uganda

Tribhovan K. Joshi v. Raval (1940) 6 U.L.R. 93 (U)

“Sufficient reason”; factors to be considered.

Keshavji Jethabhai & Bros. Ltd. v. Saleh Abdulla [1959] E.A. 260 (T)

The onus is on the defendant to show that he is entitled to indulgence; the interests of
the creditor as well as those of the debtor to be considered.

Alidina v. Alidina [1961] E.A. 565 (T)

Sub-rule (2) does not apply to a compromise recorded under Order XXIV, rule 6
(Kenya).

Ismail Sunderji Hirani v. Noorali Esmail Kassam (1952) 19 E.A.C.A. 131 (CA-
K)

“Decree” means judgment (obiter)

Fort Hall Bakery v. Wangoe [1958] E.A. 118 (K)

Rule 12 Rule 12 Rule 12


Rule 13 Rule 13 Rule 13
Rule 14
Rule 14 Rule 15 Rule 14
Rule 15 Rule 16 Rule 15

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Rule 16 Rule 17 Rule 16


Rule 17 Rule 18 Rule 17
Rule 18 Rule 19 Rule 18
Rule 19 Rule 20 Rule 19
Rule 20 Rule 20

EXECUTION OF DECREES AND ORDERS

Kenya: Order XXI Tanganyika: Order XXI Uganda: Order XIX


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2

Where the procedure prescribed has not been followed, the court cannot recognize an
alleged adjustment of a decree and may issue a prohibitory order; a mere statement
that “the matter has been settled” does not amount to a certificate for the purposes of
sub-rule (1).

Pabari v.Meghji N. Shah [1961] E.A. 676 (CA-U)

Where an arrangement was made for satisfaction of a decree and all payments wee to
be made through the court, certification held not necessary.

Hanmohamed Ladha, Re [1961] E.A. 175 (T)

An order on an application under sub-rule (2) is appealable.

Paryani v. Choitram [1963] E.A. 464 (T)

Rule 3 Rule 3 Rule 3


Rule 4
Rule 4 Rule 5 Rule 4

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Rule 5 Rule 6 Rule 5


Rule 7 (c.f. rule 6)
Rule 8 (c.f. rule 6)
(c.f. rules 7, 8) Rule 6
Rule 6 Rule 9 Rule 7
Rule 7 Rule 10 Rule 8

An application for execution may be made but execution should not issue before a
decree is signed and issued.

Narshidas M. Mehta & Co. Ltd. v. Baron Verheyen (1956) 2 T.L.R. (R.) 300
(T)

Rule 8 Rule 11 Rule 9


Rule 9 Rule 12 Rule 10
Rule 10 (c.f. rule 12) Rule 11
Rule 11 Rule 13 Rule 12
Rule 12 Rule 14 Rule 13
Rule 13 Rule 15 Rule 14

An application for execution cannot be rejected because the market is unfavourable for
sale, although a reserve price may be fixed.

Gulamhussein Sachedina v. Nanji Khimji (1921) 3 U.L.R. 80 (U)

The fact that criminal proceedings are pending against the judgment debtor is no
reason for refusing an applicationfor execution.

Muljibhai Desaibhai v. Danieri Okiror (1932) 5 U.L.R. 12 (U)

Rule 14 Rule 16 Rule 15


Rule 15 Rule 17 Rule 16

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Rule 16 Rule 18 Rule 17


Rule 17 Rule 19 Rule 18
Rule 18 Rule 20 Rule 19

Notice to show cause is not necessary where the decree was one for payment by
instalments.

Mirzar Mazhar v. Mathra Dass (1922) 9 E.A.L.R. 36 (K)

The notice to show cause must issue before attachment (nor after attachment and
before sale).

Othavji Gokaldas v. Nagji Kanji (1934) 1 E.A.C.A. 10 (CA-U)

Rule 19 Rule 21 Rule 20


Rule 20 Rule 22 Rule 21

Sub-rule (1) confers a judicial discretion.

Noronha v. Siqueira (1931) 13 K.L.R. 4 (K)

A rubber stamp is a sufficient compliance with the requirement that an order “be sealed
with the seal of the court”.

A.-G. V. Khatoon C. Satchu [1960] E.A. 505 (T)

It is not necessary that the proper officer should himself execute all warrants sent to
him; a warrant or order may be sent to a limited company although the practice is
undesirable.

A.-G. V. Akoko Mboya [1962] E.A. 460 (K)

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Rule 21 Rule 23 Rule 22


Rule 22 Rule 24 Rule 23

Application may be made for a stay of execution beore a decree is issued.

Narshidas M. Mehta & Co. Ltd. v. Baron Verheyen (1956) 2 T.L.R. (R) 300
(T)

Rule 23 Rule 25 Rule 24


Rule 24 Rule 26 Rule 25
Rule 25 Rule 27 Rule 26

The wording of the rule is not restricted to any particular kind of pending suit and may
therefore include a suit to set aside the decree; the likelihood of the suit succeeding is a
relevant factor in the exercise of the court’s discretion.

Iddi Halfani v. Hamisa binti Athumani [1962] E.A. 761 (T)

Rule 26 Rule 28 Rule 27


Rule 27 Rule 29 Rule 28
Rule 28 Rule 30 Rule 29
Rule 29 Rule 31 Rule 30
Rule 32 Rule 31
Rule 30 Rule 33 Rule 32

A decree in ejectment can be executed against a sub-lessee, even though he was not a
party to the action.

Canini v. Suleman [1964] E.A. 619 (CA-K)

Rule 31 Rule 34 Rule 33


Rule 32 Rule 35 Rule 34

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Imprisonment for debt is one of the ordinary means of execution, with provisions
enabling the court in certain circumstnaces to make more lenient orders.

Czeczowiczka v. Markus (1936) 3 E.A.C.A. 5 (JC-K)

Rule 33 Rule 36 Rule 35


Rule 37
Rule 34 Rule 38 Rule 36
Rule 35 Rule 39 Rule 37

Confers a discretion which is not limited to questions of poverty.

Bhimji Hasham v. Hall (1929-30) 12 K.L.R. 122 (K)

Rule 36 Rule 40 Rule 38

“Any other person” not to be read ejusdem generis, but power to examine persons
other than the judgement debtor or an officer of a debtor corporation to be exercised
with caution.

Rodway Motors Ltd. v. Sunderji Gokaldas (1940) 6 U.L.R. 81 (U)

Rule 37 Rule 41 Rule 39


Rule 38 Rule 42 Rule 40

Need for actual seizure; no conflict with section 27 of the Sale of Goods Act (Kenya).

Rule 39 Rule 43 Rule 41


Rule 40 Rule 44 Rule 42
Ruel 41 (c.f. rule 45) Rule 43
(c.f. rule 41 and O. XXII) Rule 45 (c.f. rule 43 and O. XX)
Rule 42 Rule 46 Rule 44

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Rule 43 (c.f. rule 47 Rule 45

There is nothing in the rule to override existing equities betwen the employer and the
employed.

M.P. de Mellor v. Chhaganlal Shah (1932) 14 K.L.R. 125 (K)

“Salary or allowance” does not incude commission on sales.

Naran Daya v. Jamal Rehman (1932-35) 5 U.L.R. 143 (U)

An application to bring onto the record an employer who has failed to comply with an
order to withhold and remit salary in misconceived.

Mehta v. Karsandas Pitamber & Bros. [1958] E.A. 691 (U)

On an application for attachment of salary, the employer and the debtor should be
served with a notice to show cause why the order should not be made.

Mehta v. Karsanda Pitamber & Bros. [1958] E.A. 694 (U)

(c.f. rule 43) Rule 47 (c.f. rule 45)


Rule 44 Rule 48 Rule 46
Rule 45 Rule 49 Rule 47
Rule 46 Rule 50 Rule 48
Rule 47 Rule 51 Rule 49
Rule 48 Rule 52 Rule 50
Rule 49 Rule 53 Rule 51

Surporting to enter into a lease after a prohibitory order held disobedience to court but
not called for punishment of lessee for contempt.

Kasturilala Laroya v. Mityana Staple Cotton Co. Ltd. [1958] E.A. 194 (U)

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Rule 50 Rule 54 Rule 52


Rule 51 Rule 55 Rule 53
Rule 52 Rule 56 Rule 54

Applied.

Kohli v. Maghar Singh [1967] E.A. 282 (K)

Rule 53

Does not apply a garnishee proceedings.

Khan v. Ramji Kanji & Co. [1966] E.A. 506 (K)

Rule 54
Rule 55
Rule 56
Rule 57
Rule 58
Rule 57 Rule 55

The rule concerns possesion, not title, except so far as questiosn of title affect the
decision whether the possesionis on account of anothr person.

Patel v. Patel [1958] E.A. 743 (U)

Rule 58 Rule 56
Rule 59 Rule 57
Rule 60 Rule 58
Rule 61 Rule 59
Rule 62 Rule 60

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A suit under the rule goes to title, not merely possession, what evidence is admissible.

Patel v. Patel [1958] E.A. 743 (U)

Rule 59 Rule 63 Rule 61


Rule 60 Rule 64 Rule 62

The requirement that sale be by public auction ony applies where the property is of a
kind which may legally be so sold.

Manyagenda v. Singo Wolfram Mines Ltd (1955) 7 U.L.R. 144 (U)

The rule does not permit the court to order a sale by private treaty except by consent.

Standard Bank of South Africa Ltd. v. Senkubuge [1960] E.A. 13 (U)

Rule 61 (c.f. rule 65) (c.f. rule 63)

It is not necessary for the advertisement to contain all the particulars that must be
inserted in the public notice.

Mandavia v. Rattan Singh [1968] E.A. 146 (CA-K)

(c.f. rule 61) Rule 65 (c.f. rule 63)


(c.f. rule 61) (c.f. rule 65) Rule 63
Rule 66
Rule 62 Rule 67 Rule 64
Rule 63 Rule 68 Rule 65
Rule 64 Rule 69 Rule 66
Rule 65 Rule 70 Rule 67
Rule 66 Rule 71 Rule 68
Rule 72

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Rule 73
Rule 67 Rule 74 Rule 69
Rule 68 Rule 75 Rule 70
Rule 69 Rule 76 Rule 71
Rule 70 Rule 77 Rule 72
Rule 78 Rule 73
Rule 71 Rule 79 Rule 74
Rule 72 Rule 80 Rule 75
Rule 81 Rule 76
Rule 73 Rule 82 Rule 77

Subsection (1); “forthwith” means “within a reasonable time”.

Mandavia v. Rattan Singh [1968] E.A. 146 (CA-K)

Rule 74 Rue 83 Rule 78


Rule 75 Rule 84 Rule 79
Rule 76 Rule 85 Rule 80
Rule 77 Rule 86 Rule 81
Rule 78 Rule 87

Has no application in Kenya to sales of property pursuant to a mortgage decree, since


they are governed by the Transfer of Property (Mortgage Suits) Rules (R. 1962,
Orders in Council and Applied Act, Group 8., p. 77.)

Rule 79 Rule 88

What is a material irregularity.

Mandavia v. Rattan Singh [1968] E.A. 146 (CA-K)

Rule 80 Rule 89

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Rule 81 Rule 90

It is mandatory on the court to make an order conforming the sale; where an appliation
under one of the three preceding rules has been dismissed but no confirming order
made, confirmation is implicit in the disallowance.

Sheikh M. Bashir v. United Africa Co. (Kenya) Ltd [1959] E.A. 706 (CA-K)

Rule 82 Rule 91
Rule 83 Rule 92
Rule 84 Rule 93 Rule 82
Rule 85 Rule 94 Rule 83
Rule 86 Rule 95 Rule 84
Rule 87 Rule 96 Rule 85
Rule 88 (c.f. rule 97) Rule 86
(c.f. rule 88) Rule 97 (c.f. rule 86)
Rule 98
Rule 99
Rule 89 Rule 100 Rule 87
Rule 90 Rule 101 Rule 88
Rule 91 Rule 89
Note: see also
Rules of Court (G.N. No. Attachment and Sale Court Brokers Rules (S.I.
1356 of 1952), Part VIII. (Brokers and Fees) Rules, 41-8)
1964 (R.L. Cap. 453 Supp.
64 p. 6); Arrest, Seizure
and Possession (Bailiffs
and Fees) Rules, 1964
(R.L. Cap. 453 Supp. 64 p.
4(

ATTACHMENT OF DEBTS

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Kenya: Order XXII Tanganyika: c.f. O. XXI, r. Uganda: Order XX


45
Rule 1 Rule 1

Provides a code in respect of the attachment of debts, to the exclusion of the rules in
O. XXI.

Khan v. Ramji Kanji & Co. [1966] E.A. 507 (K)

To support a garnishee order there must be a debt due or accuring due; it is not
sufficient to show a contingent liabiilty.

Abdul Wahid & Sons v. Munshiram & Co. (1932) 14 K.L.R. 47 (CA-K)

The mere fact that the exact amount of a debt canot for the moment be ascertained is
no ground for refusing to attach it.

Sunder Dass v. Municipal Council of Nairobi (1948) 15 E.A.C.A. 33 (CA-K)

The court must be satisfied before it makes an order absolute that there is a debt in
praeseti; an unliquidated claim for damages cannot, save perhaps in an exceptionalcase,
be attached.

Bains v. Halimabibi [1957] E.A. 13 (CA-K)

Rule 2 Rule 2
Rule 3 Rule 3
Rule 4 Rule 4

The trial of liability of the garnishee must be regarded as a suit.

Sohan Lal v. British East African Planting Co. Ltd. (1938-39) 18 K.L.R. 17
(K)

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It must be proved that the amount claimed is in fact due and recoverable from the
garnishee.

Petro Sonko v. Patel (1953) 20 E.A.C.A. 99 (CA-U)

It is incorrect to give “judgment” against the garnishee; the correct procedure is to


make the order nisi absolute.

Petrol Sonko v. Patel (1955) 22 E.A.C.A. 23 (CA-U)

Rule 5 Rule 5
Rule 6 Rule 6
Rule 7 Rule 7
Rule 8 Rule 8
Rule 9 Rule 9
Rule 10 Rule 10

PROCEEDINGS AGAINST THE GOVERNMENT

Kenya: Order XXIIA


Rule 1
Rule 2
Rule 3
Rule 4

DEATH, BANKRUPTCY AND MARRIAGE OF PARTIES

Kenya: Order XXIII Tanganyika: Order XXII Uganda: Order XXI


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2

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Rule 3 Rule 3 Rule 3

In Kenya, the period of limitation for an application is six months; meaning of


“plaintiff”.

Mehta v. Shah [1965] E.A. 321 (CA-K0

Does not preclude an order for costs against the estate of a deceased appellant where
the cause of action has abated.

Basant Kaur v. Rattan Singh Civil Appeal No. 95 of 1952 (unreported) (CA-
K)

Rule 4 Rule 4 Rule 4

Omiision to make order; so far as the parties are concerned, it is sufficient to make
applicatio and if the court fails to carry out its ministerial function, the parties are not
to be penalized.

Gajender Pal v. Ram B. Sirdaw [1961] E.A. 344 (U)

An executor may be made a party before he has obtained probate.

Kothari v. Qureshi [1967] E.A. 564 (K)

In Kenya, the period of limitation for an application under sub-rule (1) is six months.

Son v. Mohan Dairy [1968] E.A. 58 (CA-K)

In Tanganyika, the period of limitation for an application under sub-rule (1) six
months; the court has no power to extend the time.

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Osman v. United India Fire and General Insurance Co. Ltd. [1968] E.A. 102
(CA-T)

Rule 5 Rule 5 Rule 5


Rule 6
Rule 6 Rule 7 Rule 6
Rule 7 Rule 8 Rule 7
Rule 8 (c.f. rule 9) Rule 8

The fact that the proceedings are nominally against a deceased person does not bar an
application.

Mohan Dairy v. Bhurabhai [1966] E.A. 571 (K)

In Kenya, the period of limitation within which to apply for revival of a suit is three
years; the reference to being “prevented by any sufficient cause” relates to the period
of six months within which application should be made to implead the legal
representative, not to the three years within which application may be made to revive
the suit.

Mohan Dairy v. Bhurabhai [1966] E.A. 571 (K)

Soni v. Mohan Dairy [1968] E.A. 58 (CA-K0

(c.f. rule 8) Rule 9 (c.f. rule 8)

Sub-rule (2); after annulment of his bankruptcy, a former bankrupt is in no better


position than was the trustee.

Abbasi v. Alarakhia Keraj & Co. (1930) 1 T.L.R. (R.) 454 (T)

Rule 9 Rule 10 Rule 9

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Rule 10 Rule 11 Rule 10


Rule 11 Rule 12 Rule 11

Execution proceedings may continue without the appointment of a personal


representative of the deceased decree-holder.

Dhulla Harichand v. Gulam Mohu-udin (1940) 19 K.L.R. 6 (K)

Rule 12 Rule 12

WITHDRAWAL, DISCONTINUANCE AND ADJUSTMENT OF SUITS

Kenya: Order XXIV Tanganyika: Order XXIII Uganda: Order XXII


Rule 1
Rule 1 Rule 1

The words “before taking any other proceeding” must refer to some act subsequent to
the institution of the suit.

Smith v. Wessels (1927-28) 11 K.L.R. 51 (K)

Rule 2 Rule 2

Meaning of “set down for hearing”.

Smith v. Wessels (1927-28) 11 K.L.R. (K)

Rule 3 Rule 3
Rule 4 Rule 4
Rule 5 Rule 2 Rule 5
Rule 6 Rule 3 Rule 6

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Does not relate to consent judgments.

Lal Singh v. Munshi Ram & Co. (1937) 4 E.A.C.A. 9 (CA-K)

Where a suit has been settled by a compromise recorded under the rule, the decree is
passed upon the new contract between the parties which supersedes the original cause
of action.

Ismail Sunderji Hirani v. Noorali Esmail Kassam (1952) 19 E.A.C.A. 131 (CA-
K)

Meaning of “so far as it relates to the suit”

Khushaldas & Son Ltd. v. Weinstein [1964] E.A. 734 (K)

Rule 4
Rule 7 Rule 7

PAYMENTS INTO COURT

Kenya: c.f. Order XXVI Tanganyika: Order XXIV Uganda: c.f. Order XXIV
Rule 1

May apply to a payment made in compliance with a condition of a stay order.

Narshidas M. Mehta & Co. Ltd. v. Baron Verheyen (1956) 2 T.L.R. (R.) 300
(T)

Rule 2

Is mandatory that notice be given.

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Narshidas M. Mehta & Co. Ltd. v. Baron Verheyen (1956) 2 T.L.R. (R.) 300
(T)

Rule 3
Rule 4

SECURITY FOR COSTS

Kenya: Order XXV Tanganyika: Order XXV Uganda: Order XXIII


Rule 1
Rule 1 Rule 1

The inability of the plaintiff to pay his debts is not sufficient reasons to justify ordering
security.

Karm Elahi v. Ahmed Mohamed (1929-30) 12 K.L.R. 49 (K)

Whether security should be ordered where the plaintiff has property elsewhere in East
Africa.

Farrab Inc. v. Robson [1957] E.A. 441 (K)

Kapadia v. Thakersey Laxmidas [1960] E.A. 852 (K)

Rule 2 Rule 2 Rule 2

An application to re-instate is not to be treated as an application for review; mere lack


of funds is not “efficient cause” for failure to furnish security.

Patrick Njeroge Ngumi v. Livingstone Wanjii Muthui (1955) 22 E.A.C.A. 43


(CA-K)

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(and see Shabir Din v. Ram Parkash Anand (1955) 22 E.A.C.A. 48 (CA-K)

Rule 3 Rule 3

PAYMENT INTO COURT AND TENDER

Kenya: Order XXVI Tanganyika: c.f. Order Uganda: Order XXIV


XXIV
Rule 1 Rule 1

The trial judge should not allow his assessment of damages to be affected by
knowledge of the sum paid into court.

Harnam Dass v. Corbin (1959) E.A. 834 (CA-K)

Courses open to plaintiff; effect of amended defence denying liability after payment
into court.

Shah v. Queensland Insurance Co. Ltd. [1962] E.A. 269 (K)

Rule 2 Rule 2
Rule 3 Rule 3
Rule 4 Rule 4
Rule 5 Rule 5
Rule 6 Rule 6
Rule 7 Rule 7
Rule 9 Rule 9
Rule 10 Rule 10
Rule 11 Rule 11
Rule 12 Rule 12

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COMMISSIONS

Kenya: Order XXVII Tanganyika: Order XXVI Uganda: Order XXV


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2

Applies to the Order generally not merely to rule 1.

C. Popat and Co. v. Hussein Bros. [1961] E.A. 690 (K)

Rule 3 Rule 3 Rule 3


Rule 4 Rule 4 Rule 4

Only in exceptional circumstances will a court allow a plaintiff to be examined out of


the jurisdiction.

Battan v. Kampala African Bus Company [1959] E.A. 328 (U)

Caspair Ltd. v. Gandy [1962] E.A. 414 (CA-U)

It is not the function of a special examiner on the credibility of a witness.

Caspair Ltd. v. Gandy [1962] E.A. 4141 (CA-U)

Rule 5 Rule 5 Rule 5


(and see Rules of Court
(G.N. No. 1356 of 1952)
Part VI)
Rule 7 Rule 7 Rule 7
Rule 8 Rule 8 Rule 8
Rule 9 Rule 9 Rule 9

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Rule 10 Rule 10 Rule 10


Rule 11 Rule 11 Rule 11

The referee’s report is evidence in the case and nothing else; the referee may be called
by the court either of its own motion nor on the application of either party for any
explanation the court may think necessary.

Keeble v. Shelton (1948) 15 E.A.C.A. 14 (CA-U)

A formal order of appointment should be extracted and served but omission to do so is


an irregularity not going to jurisdiction.

Parbhubhai Morarji v. Jagabhai Morarji [1958] E.A. 277 (CA-K)

An order for accounts purporting to make the referee a special referee with power to
determine issues held to be a nullity.

Kirpal Singh v. Jagat Singh [1965] E.A. 178 (CA-K)


Parbhubhai Morarji v. Jagabhai Morarji [1958] E.A. 277 (K)

Rule 13 Rule 13 Rule 13


Rule 14 Rule 14 Rule 14
Rule 15 Rule 15 Rule 15

Not appropriate to matrimonial causes, where rule 25(3) of the Matrimonial Causes
Rules, 1956, (Tanganyika) applies.

Hornsted v. Hornsted [1963] E.A. 32 (T)

Rule 16 Rule 16 Rule 16


Rule 18 Rule 18 Rule 18

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Rule 19 Rule 19
Rule 20 Rule 20

All applications under the Order may be by chamber summons.

C. Popat and Co. v. Hussein Bros. [1961] E.A. 690 (U)

Rule 21

SUITS BY OR AGAINST MILITARY MEN

Tanganyika: Order XXVII


Rule 1
Rule 2
Rule 3

SUITS BY OR AGAINST CORPORATIONS

Kenya: Order XXVIII Tanganyika: Order XXVIII Uganda: Order XXVI


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2
Rule 3

Suits by or against firms and persons carrying on business in names other than their
own.

Kenya: Order XXIX Tanganyika: Order XXIX Uganda: Order XXVII


Rule 1 Rule 1 Rule 1

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A suit may be brought against a partnership even though it has been dissolved; a suit
against persons “all formerly trading as …” is not a suit against the firm.

Horra v. Horra [1959] E.A. 981 (K)

A claim may be enforced against a partnership without making all the partners
defendants.

Sarwan Singh v. Karam Singh [1963] E.A. 423 (K)

Rule 2 Rule 2 Rule 2


Rule 3 Rule 3 Rule 3
Rule 4 Rule 4
Rule 4 Rule 5 Rule 5

Where service is on a manager, failure to give the required notice renders the service
ineffective.

Kenya Tobacco Co. Ltd. v. Nairobi Trading Store (1954) 27 K.L.R. 37 (K)

Rule 5 Rule 6 Rule 6

An appearance in the firm name is no appearance; there is nothing to prevent partners


signing one form.

Smith v. Auto Electric Services (1951) 24(2) K.L.R. 22 (K)

Rule 6 Rule 7 Rule 7


Rule 7 Rule 8
Rule 8
Rule 8 Rule 9 Rule 9
Rule 9 Rule 10 Rule 10

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A person carrying on business under a trade name may only sue in his own name,
altough there is no objection to his adding “trading as …” as words or description
only.

Sadruddin Shariff v. Tarloohan Singh [1961] E.A. 72 (CA-K)

And see Ramji v. Shivji Jessa & Sons [1965] E.A. 125 (K)

But where a suit has wrongly been filed in the trade name, amendment will be allowed.

Phakey v. World Agencies Ltd. (1948) E.A.C.A. 1 (CA-K)

George and Company v. Pritam’s Auto Service (1955) 22 E.A.C.A. 233 (CA-
K)
Rule 10 Rule 11
Rule 12

SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND


ADMINISTRATORS

Kenya: Order XXX Tanganyika: Order XXX Uganda: Order XXVIII


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2

Executors disagreeing whether or not to pursue claim; both joined.

Sargent v. Gautama [1968] E.A. 338 (CA-K)

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Rule 3 Rule 3
Rule 4 Rule 4

SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

Kenya: Order XXXI Tanganyika: Order XXXI Uganda: Order XXIX


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2
Rule 3 Rule 3 Rule 3

The rule is mandatory and a decree obtained without the appointment of a guardian is
a nullity.

Credit Finance Corporation Ltd v. Karmali [1965] E.A. 545 (K)

Rule 4 Rule 4 Rule 4


Rule 5 Rule 5 Rule 5
Rule 6 Rule 6 Rule 6
Rule 7 Rule 7 Rule 7
Rule 8 Rule 8 Rule 8
Rule 9 Rule 9 Rule 9
Rule 10 Rule 10 Rule 10
Rule 11 Rule 11 Rule 11
Rule 12 Rule 12 Rule 12
Rule 13 Rule 13 Rule 13
Rule 14 Rule 14 Rule 14
Rule 15 Rule 15 Rule 15
Rule 16

SUITS BY PAUPERS

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Kenya: Order XXXII Tanganyika: c.f. the Court Uganda: Order XXX
Fees Rules (R.L. Cap. 453,
Supp. 64, p. 15, r.8)
Rule 1 Rule 1
Rule 2 Rule 2
Rule 3 Rule 3
Rule 4 Rule 4

Before a date for hearing can be fixed, there must be a judicial determination that the
application is in order.

Simoni P.Z. Bamuzale v. Corret [1961] E.A. 691 (U)

The registrar is not entitled under Order XLVI (Uganda) to determine whether an
application is in proper form.

Simoni P.Z. Bamuzale v. Corret [1961] E.A. 691 (U)

Rule 5 Rule 5

Leave to sue in forma pauperis will not be granted where the applicant has a bare right
of action, on which there is no likelihood of his being awarded more than nominal
damages.

Ali Suleman Mandevia v. Rungwe Africa Co-op. Union Ltd. [1958] E.A. 524
(T)

Rule 6 Rule 6
Rule 7 Rule 7
Rule 8 Rule 8
Rule 9 Rule 9
Rule 10 Rule 10

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Rule 11 Rule 11
Rule 12 Rule 12
Rule 13 Rule 13
Rule 14 Rule 14
Rule 15 Rule 15
Rule 16
Rule 17
Rule 18 Rule 16

Suits relating to mortgages of immovable property

Kenya: c.f. the Transfer of Tanganyika: Order XXXII


Property (Mortgage Suits)
Rules (Orders in Council
and Applied Acts, Group
8, p. 77
Rule 2
Rule 3

When right to apply for a final decree accrues; period of limitation.

Twentsche Overseas Trading Co. Ltd. v. Sanches (1937) 1 T.L.R. (R.) 496 (T)

Rule 4

Sale of mortgagor’s interest; rights of third parties.

Yahya bin Mohamed v. Magambeka bin Sinde (133) 1 T.L.R. (R.) 474 (T)

Rule 5
Rule 6

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Rule 7
Rule 8
Rule 9
Rule 10
Rule 11
Rule 12
Rule 13
Rule 14
Rule 15
Rule 16

INTERPLEADER

Kenya: Order XXXIII Tanganyika: Order XXXIII Uganda: Order XXXI


(c.f. rule 2) Rule 1 (c.f. rule 2)
Rule 2
Rule 3
Rule 4
Rule 5
(c.f. rule 6) Rule 6 (c.f. rule 6)
Rule 1 Rule 1
Rule 2 (c.f. rule 1) Rule 2

The claims against the applicant must be adverse to each other.

Sargent v. Gautama [1968] E.A. 338 (CA-K)

Rule 3 Rule 3
Rule 4 Rule 4

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An applicant should not be discharged where there is a claim against him for interest
on the sum in issue.

Sargent v. Gautama [1968] E.A. 338 (CA-K)

Rule 5 Rule 5
Rule 6 (c.f. rule 6) Rule 6
Rule 7 Rule 7

PROCEEDINGS BY AGREEMENT OF PARTIES (SPECIAL CASE)

Kenya: Order XXXIV Tanganyika: Order XXXIV Uganda: Order XXXII


Rule 1 Rule 1 Rule 1
Rule 2 Rule 2 Rule 2
Rule 3 Rule 3 Rule 3
Rule 4 Rule 4 Rule 4

A party cannot be permitted to argue contrary to the contents of the agreement filed in
the court.

Commissioner of Income Tax v. Irish Electrical Co. Ltd. Civil Appeal No.22
of 1968 (not yet reported) (CA-K)

Rule 5 Rule 5 Rule 5

SUMMARY PROCEDURE

Kenya: Order XXXV Tanganyika: Order XXXV Uganda: Order XXXIII


(and see the Debts
(Summary Recovery) Act
(Cap. 42)

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Rule 1 Rule 1
(c.f. rule 2) Rule 1 (c.f. rule 2)
Rule 2 (c.f. rules 1, 2 & 3) (c.f. rules 2, 3 & 4)

Summary procedure cannot be invoked by the mortgagee under a “simple” mortgage,


as the relationship of landlord and tenant does not exist.

Gulabrai Khandubhai Desai v. Abdulla Khan (1932) 14 K.L.R. 107 (K)

A defective affidavit by the plaintiff may be cured by a supplementary affidavit.

British East Africa Corp. 91939) Ltd v. Ladha (1938-39) 18 K.L.R. 91 (K)

If it is desired to put in a supplementary affidavit, the leave of the court should be


sought.

Suleiman v. South British Insurance Co. Ltd [1965] E.A. 66 (K)

The necessary affidavit may be sworn by one of several plaintiffs: in such case, it is
preferable, but not essential, for it to state that it is made on behalf of all.

Camille v. Merali [1966] E.A. 411 (CA-K)

A defective affidavit may be cured by the affidavit filed for the defence.

Camille v. Merali [1966] E.A. 411 (CA-K)

All that the defendant has to show is that there is a triable issue of fact or law.

Churanjilal & Co. v. Adam (1950) 17 E.A.C.A. 92 (CA-K)


Kirat Singh & Co. v. Punja Meghji & Sons (1952) 19 E.A.C.A. 33 (CA-K)
Kundanlal Restaurant v. Devshi & Co. (1952) 19 E.A.C.A. 77 (CA-K)

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Leave will normally be given unconditionally; it will only be given subject to payment
into court where the defendant agrees or where there is good ground for believing that
the defence is a sham.

Kundalal Restaurant v. Devshi & Co. (1952) E.A.C.A. 77 (CA-K)


Camille v. Merali [1966] E.A. 411 (CA-K)

A counterclaim the facts of which do not also provide a defence to the claim is not a
reason for giving leave to defend; judgment should be entered but execution stayed.

Camille v. Merali [1966] E.A. 411 (CA-K)

Where a defence has been filed, the court cannot ignore it on an application for
summary judgment.

Mugambi v. Gatururu [1967] E.A. 196 (K)

Unconditional leave to defend granted where defendant claimed equitable set-off and
counterclaim.

Terrazo Paviors v. Standard Joinery & Building Co. [1967] E.A. 307 (K)

(c.f. rule 2) Rule 2 (c.f. rules 3 & 4)

A defendant who has not been given leave to appear and defend, cannot appear for the
purpose of applying that the decree provide for payment by installments.

Hassanali Jaffe Peerani v. Horn (1930) 1 T.L.R. (R.) 467 (T)

(Distinguish Tribhovan K. Joshi v. Raval (1940) 6 U.L.R. 93 appearing under


Uganda O. XXXIII, r. 3)

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(c.f. rule 2) (c.f. rules 1 & 2) Rule 2

The courts has no discretion to allow a claim to be brought by summary procedure if it


is not precisely within the terms of the rule; proper course for defendant where suit
wrongly brought under summary procedure; no power for court to strike out part of
claim; plaint cannot be amended without leave.

Uganda Transport Co. Ltd v. Count de la Pasture (1954) 21 E.A.C.A. 163


(CA-U)

Interest can only be claimed if the claim is based on an agreement for interest in the
document sued on or by statute.

E,M, Cornwell & Co. Ltd. v. Desai (1941) 6 U.L.R. 103 (U)
Sanghavi & Shah Ltd. v. Joshi (1952) 7 U.L.R. 4 (U)
Kasule v. Kawesa [1957] E.A. 611 (U)

A prayer for alternative relief is bad.

E.M. Cornwell & Co. Ltd. v. Desai (1941) 6 U.L.R. 103 (U)

Whether summary procedure can be used in a suit to recover possession of land.

Budai Coffee Hulling Factory Ltd. v. Babumba [1963] E.A. 613 (U)
Momin Corporation (U) Ltd. v. Jiwani [1964] E.A. 244 (u)

Belief that there is no defence to the suit must be based on reasonable grounds.

Uddham Singh v. Ambalal & Co. Ltd [1959] E.A. 67 (U)

(c.f. rule 2) Rule 3 (c.f. rules 3 & 4)

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All that the defendant has to show is that there is a triable issue of fact or law.

Hasmani v. Banque du Congo Belge (1938) 5 E.A.C.A. 88 (CA-T)

Leave to defend should be given to a defendant who has averred by affidavit that he
received no consideration.

Estratius Karageorgelis v. Emanuel Mavroudis (1933) 1 T.L.R. (R.) 479 (T)

The court may admit affidavits in reply, but leave of the court must first be applied for
and obtained.

National Bank of India Ltd. v. Hasmani (1937) 1 T.L.R. (R.) 512 (T)

An order refusing leave to appear and defend is appealable (Quaere: if there is a right
of appeal from an order giving leave).

Bombay Flour Mill v. Patel [1962] E.A. 803 (T)

The affidavit filed by the defendant when seeking leave to defend is not evidence in the
suit.

Hassanali Issa & Co. v. Jeraj Produce Store [1967] E.A. 555 (CA-T)

(c.f. rule 2) (c.f. rule 2) Rule 3

An application for leave to defend may be granted although out of time.

Twentsche Overseas Trading Co. ltd. v. Bombay Garage Ltd [1958] E.A. 741
(U)

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A request for judgment to be entered may not be signed until after the time for
applying for leave to defend has expired and judgement may not be signed before the
following day.

Perbhai Lalji & Sons Ltd. v. Hassanali Devji [1962] E.A. 306 (U)

The fact that the defendant may not appear and defend, does not preclude his
appearing and applying for the decree to direct payment by installments.

Tribhovan K. Joshi v. Raval (1940) 6 U.L.R. 93 (U)


(Distinguish Hassanali Jaffer Peerani v. Horn (1930) 1 T.L.R. (R.) 467
appearing under Tanganyika O.XXXV r. 2)

Rule 3
Rule 3A
Rule 4 Rule 4

If it is desired to put in a supplementary affidavit, the leave of the court should be


sought.

Suleman v. South British Insurance Co. Ltd [1965] E.A. 66 (K)

Rule 5
Rule 5 Rule 6
Rule 6 Rule 7
Rule 7 (c.f. rule 3) Rule 8

Leave will normally be given unconditionally; it will only be given subject to payment
into court where the defendant agrees or where there is good ground for believing that
the defence is a sham.

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Kundala Restaurant v. Devshi & Co. (1952) 19 E.A.C.A. 77 (CA-K)


Souza Figuorido & Co. Ltd. v. Moorings Hotel Co. Ltd [1959] E.A. 425 (CA-
U)
Camille v. Merali [1966] E.A. 411 (CA-K)

Rule 9
Rule 10
Rule 4 Rule 11

Save in exceptional circumstances, a judgement should not be set aside without giving
the plaintiff an opportunity to oppose the setting aside.

N.B. Patel & Co. v. African Cotton Corporation Ltd. 91933) 5 U.L.R. 6 (U)

Rule 5
Rule 6
Rule 8
Rule 9
Rule 7

ORIGINATING SUMMONS

Kenya: Order XXXVI Uganda: Order XXXIV

The Order is not exclusive as to the cases to which procedure by originating summons
is appropriate; where proceedings are to be initiated by summons, it can only be by
originating summons.

Boyes v. Gathurey. Civil Appeal No. 44 of 1968 (not yet reported) (CA-K)

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Where a judge has jurisdiction to make an order, his order is not a nullity because the
application, which should have been by originating summons, was brought in the form
of an interlocutory summons.

Boyes v. Gathurey. Civil Appeal No. 44 of 1968 (not yet reported) (CA-K)

Rule 1 Rule 1

The procedure is only appropriate where the issues are simple and clear-out.

Kulsumbai G.J. Ramji v. Abdulhussein J.M. Rahim [1957] E.A. 699 (Z)
Bhag Bhari v. Mehdi Khan [1965] E.A. 94 (CA-K)

The procedure is not appropriate where willful default is alleged; payment into court
should only be ordered where money is admitted or proved to be in the hands of an
administrator pending determination of entitlement; extraneous matters must not be
introduced.

Bhag Bhari v. Mehdi Khan [1965] E.A. 94 (CA-K)

Cannot be invoked where variation is sought of an order which was not final, as the
proceedings are interlocutory.

Mohamed Hassan v. Nana binti Mzee (1941) 8 E.A.C.A. 12 (CA-K)

The determination an originating summons is an order.

O’Dell v. Thompson (1955) 22 E.A.C.A. 177 (CA-K)

Rule 2 Rule 2
Rule 3 Rule 3
Rule 3A Rule 3A

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Where a mortgagee prays inter alia for a personal decree against the mortgagor, he
must proceed by ordinary action and not by originating summons.

Culamali Koorjee v. Noor Fatuma (1940) 19 K.L.R. 46 (K)

Is not in conflict with the Indian Transfer of Property Act, 1882, or the rules
thereunder.

Sheikh M. Bashir v. United Africa Co. (Kenya) Ltd [1959] E.A. 864 (CA-K)

Cannot be invoked by a mortgagee after he has exercised his power of sale.

Kehar Singh v. Bhatt [1962] E.A. 759 (K)

Rule 4 Rule 4
Rule 5 Rule 5
Rule 5A
Rule 6 Rule 6
Rule 7 Rule 7
Rule 8 Rule 8
Rule 8A
Rule 8B
Rule 9 Rule 9
Rule 10 Rule 10

Appeals lie as of right in respect of final but not interlocutory orders.

Dhillon v. Sham Kaur [1960] E.A. 795 (CA-K)

Rule 11 Rule 11
Rule 12

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COMPANY MATTERS

Uganda: Order XXXIVA


Rule 1
Rule 2
Rule 3
Rule 4
Rule 5
Rule 6
Rule 7
Rule 8
Rule 9
Rule 10
Rule 11
Rule 12
Rule 13
Rule 14
Rule 15

SELECTION OF TEST SUIT

Kenya: Order XXXVII Uganda: Order XXXV


Rule 1 Rule 1
Rule 2 Rule 2

ARREST AND ATTACHMENT BEFORE JUDGMENT

Kenya: Order XXXVIII Tanganyika: Order XXXVI Uganda: Order XXXVI


Rule 1 Rule 1 Rule 1

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It is not necessary to show that the defendant intends to obstruct or delay; it is enough
if his going away will have that effect.

Pyarali Datardii v. Anglo-American Amusement Park (1930) 4 U.L.R. 28 (U)

May be invoked when a suit falls partly within and partly without the excluded
categories.

Patel v. Suraj Ben [1960] E.A. 382 (U)

Cannot be invoked in proceedings under the Subordinate Courts (Separation and


Maintenance) Act (Cap. 153) (Kenya).

Surjit Singh Dhanjal v. R.M. Nairobi [1962] E.A. 653 (K)

If the evidence before the judge when he made an order was insufficient, the order
cannot be justified upon evidence placed before the court subsequently.

Porgieter v. Stumberg [1967] E.A. 609 (CA-K)

Rule 2
Rule 2 Rule 3 Rule 2
Rule 3 Rule 4 Rule 3
Rule 4 Rule 5 Rule 4
Rule 5 Rule 6 Rule 5

An order to furnish security cannot be made against a plaintiff.

Shamji Kara v. Moledina (1939) 6 U.L.R. 24 (U)

An order nisi cannot be made on an affidavit which does not show which facts were
the deponent’s knowledge and which from information received.

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Standard Goods Corporation Ltd. v. Harakohand Nathu & Co. (1950) 17


E.A.C.A. 99 (CA-K)

A debt can be the subject of attachment before judgement.

Nagarbhai Ramchand Patel v. Popatlal Premohand Vora (1956) 23 E.A.C.A.


360 (CA-K)

Rule 6 Rule 7 Rule 6


Rule 7 Rule 8 Rule 7
Rule 8 Rule 9 Rule 8

An order made in objection proceedings is not a decree and leave is necessary to


appeal from it.

Ratanbai Miyaji v. Essufali Gulamhusein (1929-30) 12 K.L.R. 20 (CA-K)

Rule 9 Rule 10 Rule 9


Rule 10 Rule 11 Rule 10
Rule 11 Rule 12 Rule 11
Rule 12 Rule 12

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Kenya: Order XXXIX Tanganyika: Order XXXVII Uganda: Order XXXVII


Rule 1 Rule 1 Rule 2

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Save in very exceptional cases, an injunction will not be granted unless there is a
likelihood of injury which is substantial and could not be adequately remedied by
damages.

Noormohamed Janmohamed v. Kassamali Virji Mashani (1953) 20 E.A.C.A. 8


(CA-K)

Injunction to restrain exercise by mortgagee of power of sale.

Shah v. Devji [1965] E.A. 91 (K)

Rule 2 Rule 2 Rule 2


Rule 3 Rule 3 Rule 3

Notice will not be dispensed with, without good cause.

Noormohamed Janmohamed v. Kassamali Virji Mashani (1953) 20 E.A.C.A. 8


(CA-K)

Rule 4 Rule 4 Rule 4


Rule 5 Rule 5 Rule 5
Rule 6 Rule 6 Rule 6
Rule 7 Rule 7 Rule 7
Rule 8
Rule 8 Rule 9 Rule 8
Rule 9 Rule 9

APPOINTMENT OF RECEIVERS

Kenya: Order XL Tanganyika: Order XXXVIII Uganda: Order XXXVIII


Rule 1 Rule 1 Rule 1

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Quaere: where the court has jurisdiction under the rule to appoint a receiver of a
company.

National & Grindlays Bank Ltd. v. Official Receiver [1959] E.A. 681 (CA-K)

Rule 2 Rule 2 Rule 2


Rule 3 Rule 3 Rule 3
Rule 4 Rule 4 Rule 4

APPEALS FROM ORIGINAL DECREES

Kenya: Order XLI Tanganyika: Order XXXIX Uganda: Order XXXIX


Rule 1 Rule 1 Rule 1

Meaning of “signed … and presented”.

Lal Singh v. Munishi Ram & Co. (1937) 4 E.A.C.A. 9

The copy of the decree or order must be signed by the proper or competent authority.

Kisumu Motor Works v. Gulamhussein Manji (1940) 19 K.L.R. 8 (K)

The requirement of a certified copy of the decree or order is mandatory.

Munshiram & Co. v. Star Soda Water Factory (1934) 16 K.L.R. 50 (K)
Kotak Ltd. v. Kooverji [1967] E.A. 348 (T)

An appeal which is incompetent for lack of a formal order should be struck out, and
for the purposes of an application for extension of time is not to be treated as an
appeal that has been filed.

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Essaji v. Solanki [1968] E.A. 218 (T)

Rule 2
Rule 2 Rule 3 Rule 2
Rule 3 Rule 4 Rule 3
Rule 4 Rule 5 Rule 4

The High Court has power to order a stay of execution either in its inherent
jurisdiction or under the rule; the rule contemplates that an appeal must be in being
before an application can be entertained.

Singh v. Runda Coffee Estates Ltd. [1966] E.A. 263 (CA-K)

Rule 5 Rule 6 Rule 5


Rule 6 Rule 7 Rule 6
Rule 7 Rule 8 Rule 7
Rule 8 Rule 9 Rule 8
Rule 9 Rule 10 Rule 9

Reasons for ordering security.

Gunning v. Motor Mart & Exchange Ltd. L.R.S. 1 of 1962 p. 5 (T)


(And see Noormohamed Abdulla v. Patel [1962] E.A. 447 (CA-K))

Rule 10 Rule 10
Rule 10A
Rule 11
Rule 12
Rule 13

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(c.f. rule 11) Rule 14 (c.f. rule 11)


Rule 11 (c.f. rule 14) Rule 11
Rule 12 Rule 15 Rule 12
Rule 13 Rule 16 Rule 13
Rule 14 Rule 17 Rule 14
Rule 15 Rule 18 Rule 15
Rule 16 Rule 19 Rule 16

Applies only to appeals from subordinate courts.

Amiri Ntambi v. Alideki Jumbi [1959] E.A. 129 (U)

Rule 17 Rule 20 Rule 17


Rule 18 Rule 21 Rule 18
Rule 22
Rule 19 Rule 23 Rule 19

Where an order remitting proceedings is merely ancillary to a decision that a


substantial determination was wrong in law, the rule is not relevant so as to make the
decision an order requiring leave to appeal.

Charan Kaur v. Mistry Makanji Vanmali (1956) 23 E.A.C.A. 5 (CA-K)

Rule 20 Rule 24 Rule 20


Rule 21 Rule 21
Rule 25
Rule 26
Rule 22 Rule 27 Rule 22

Conditions necessary to justify the reception of fresh evidence.

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Karmali Tarmohamed v. Lakhani & Co. [1958] E.A. 567 (CA-U)


Sadrudin Shariff v. Singh [1961] E.A. 72 (CA-K)
Paryani v. Choitram [1963] E.A. 464 (T)

Rule 23 Rule 28 Rule 23


Rule 24 Rule 29 Rule 24
Rule 30
Rule 31
Rule 25 Rule 25
Rule 26 Rule 32 Rule 26
Rule 27 Rule 33 Rule 27
Rule 34
(c.f. rule 28) Rule 35 (c.f. rule 28)
Rule 28 (c.f. rule 35) Rule 28
Rule 29 Rule 36 Rule 29
Rule 30 Rule 37 Rule 30
Rule 31 Rule 31

APPEALS FROM ORDERS

Kenya: Order XLII Tanganyika: Order XL Uganda: Order XL


Rule 1 (c.f. rule 1) (c.f. rule 1)

Paragraph (c) of sub-rule (1) applies to final but not to interlocutory orders made on
originating summonses.

Dhillon v. Sham Kaur [1960] E.A. 795 (CA-K)

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(c.f. rule 1) Rule 1 (c.f. rule 1)


(c.f. rule 1) (c.f. rule 1) Rule 1

In view of the definition of “order” in s.2, no appeal can lie where no formal order has
been drawn up; where no notice has been given of an application for leave to appeal,
an order allowing leave ex parte was without jurisdiction.

Janmohamed Alibhai v. Ramji A. Raichura (1953) 20 E.A.C.A. 24 (CA-U)

“Under these rules” to be construed strictly; the rule does not apply to appeals under
other statutes.

Rene Dol v. Official Receiver (1954) 21 E.A.C.A. 116 (CA-U)

Sub-rule (2) implicitly confers a right of appeal.

Gurbachan Singh Kalsi v. Yowani Ekori [1958] E.A. 450 (CA-U)

Rule 2 Rule 2 Rule 2

By applying the provisions of the preceding order, makes a formal order a prerequisite
to an appeal.

Kotak Ltd.v. Kooverji [1967] E.A. 348 (T)

And see cases cited under the Preceding Order.

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PAUPER APPEALS

Kenya: Order XLIII Tanganyika: c.f. the Court Uganda: Order XLI
Fees Rules,1964 (R.L.
Cap. 453, Supp. 64, p. 15)
r. 8
Rule 1 Rule 1
Rule 2 Rule 2
Rule 3 Rule 3

Reference

Tanganyika: Order XLI Uganda:


Rule 1 (c.f. the Magistrates’
Courts Act (Cap. 36) s.
29)
Rule 2 (c.f. the Magistrates’
Courts Act (Cap. 36) s.
29)
Rule 3
Rule 4
Rule 5
Rule 6

Review

Kenya: Order XLIV Tanganyika: Order XLII Uganda: Order XLII


Rule 1 Rule 1 Rule 1

Sub-rule (1): meaning of “any other sufficient reason”.

Tanitalia Ltd. v. Mawa Handels Anstalt [1957] E.A. 215 (Z)


Sardar Mohamed v. Charan Singh [1959] E.A. 793 (K)

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Ahmed H. Mulji v. Shirinbai Jadavji [1963] E.A. 217 (T)

Sub-rule (2): meaning of “who is not appealing”.


Mohamed Haji Abdulla v. Ghela Manek Shah (1956) 23 E.A.C.A. 342 (CA-K)
Quaere: whether there can be review of a judgment, by necessary implication
from O.XX, r. 3(3) (Kenya).

Mohamed Haji Abdulla v. Ghela Manek Shah (1956) 23 E.A.C.A. 342 (CA-K)

The High Court (Uganda) has no power to review its own judgements given on appeal
under any special jurisdiction.

Erimiya Serunkuma v. Elizabeth Nandyose [1959] E.A. 127 (U)

The procedure should normally be initiated by application for a rule nisi.

Jaffer v. Gupta [1959] E.A. 406 (T)

A point which is a good ground of appeal may not be a ground for an application for
review.

Balinda v. Kangwamu [1963] E.A. 557 (U)

Where no decree had been drawn up when application was made but a decree was
drawn up before the date of hearing, any irregularity was cured.

Sardar Mohamed v. Charan Singh [1959] E.A. 793 (K)

Rule 2 Rule 2 Rule 2


Rule 3
Rule 3 Rule 4 Rule 3
Rule 4 Rule 5 Rule 4
Rule 5 Rule 6 Rule 5

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Rule 7
Rule 6 Rule 8 Rule 6
Rule 7 Rule 9 Rule 7
Rule 8

ARBITRATION UNDER ORDER OF A COURT

Kenya: Order XLV (Tanganyika: Second Schedule) Uganda: Order XLIII


Rule 1 (Rule 1) Rule 1
Rule 2 (Rule 2) Rule 2
Rule 3 (Rule 3) Rule 3
Rule 4 (Rule 4) Rule 4
Rule 5 (Rule 5) Rule 5
Rule 6 (Rule 6) Rule 6
Rule 7 (Rule 7) Rule 7
Rule 8 (Rule 8) Rule 8
Rule 9 (Rule 9) Rule 9
Rule 10 (Rule 10) Rule 10
Rule 11 (Rule 11) Rule 11
Rule 12 (Rule 12) Rule 12
Rule 13 (Rule 13) Rule 13

The court is not bound by any decision of the arbitrator as to costs.

A.M. Marwaha & Co. v. Subhakhan (1931) 13 K.L.R. 29 (CA-K)

Rule 14 (Rule 14) Rule 14


Rule 15 (Rule 15) Rule 15

What amounts to misconduct in arbitrators.

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Bhagwanji Raja v. Swaran Singh {1962] E.A. 288 (CA-K)

Rule 16 (Rule 16) Rule 16

When pronouncing judgment, the court may allow interest, even though the award
does not provide for it.

Shah v. Sethi [1964] E.A. 246 (K)

Rule 17 Rule 17
Rule 18 Rule 18

District registries

Kenya: Order XLVI Tanganyika: c.f. the High Uganda: Order XLIV
Court Registries Rules,
1961 (R.L. Cap. 453 Supp.
62 p. 3)
Rule 1 Rule 1
Rule 2 Rule 2
Rule 3 Rule 3
Rule 4 Rule 4
Rule 4A
Rule 5
Rule 5
Rule 5A
Rule 6 Rule 6
Rule 7 Rule 7

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The words “proceeding or matter” are governed by the earlier words “in any
preliminary step or upon an interlocutory application.”

Chandubhai H. Patel v. Taylor (1943) 10 E.A.C.A. 1 (CA-K)

Rule 8

The first consideration is the convenience of parties and witnesses.

Bagorogoza v. Mbarinda [1959] E.A. 125 (U)

Rule 8 Rule 9
Rule 9 Rule 10

Is not mandatory that appeals shall be filed in District Registries, but permissive,
allowing an appeal to be filed in the appropriate District Registry or in the Central
Office.

Dullo v.Shah & Sons [1968] E.A. 595 (K)


(Velji Shahmad v. Shamji Bros. [1957] E.A. 438 (K) and
Storm v. Central Provision Stores [1057] E.A. 579 (K) distinguished and
explained.)

MISCELLANEOUS

Kenya: Order XLVII Tanganyika: Order XLIII Uganda: Order XLV


(c.f. O.XLVIII) Rule 1 (c.f. O. XLVI)
(c.f. O. L, r. 1) Rule 2 (c.f. O. XLVIII, r. 1)
Rule 1 Rule 3 Rule 1

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Rule 2 Rule 4 Rule 2


Rule 3 Rule 3

Although the rules do not expressly require it, a notice of motion should state the
order and rule under which it is made.

Suleman v. Nyaki Farmers Co-operative Ltd [1966] E.A. 409 (CA-K)

Rule 4 Rule 4

An application for extension of time is a matter of “procedure”.

Manibhai B. Patel v. Mehal Singh (1956) 23 E.A.C.A. 209 (CA-K)

Rule 5
Rule 6

POWERS OF REGISTRARS

Kenya: Order XLVIII Tanganyika: c.f. Order Uganda: Order XLVI


XLIII, r.1
Rule 1
Rule 2 (c.f. rule 2

It is unnecessary for the plaintiff formally to prove his case.

Eksteen v. Kutosi s/o Bukua (1951) K.L.R. 90 (K)

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Paragraph (1): the rule is permissive, not mandatory.

Rajinder Nath Dhiri v. Preetam Singh (1950) 24(1) K.L.R. 26 (K)

The rule is comprehensive and registrars and deputy registrars have no other power to
enter judgement.

Chandubhai H. Patel v. Taylor (1943) 10 E.A.C.A. 1 (CA-K)

Does not empower the registrar to enter judgement in default in favour of a defendant
seeking indemnity, since the defendant cannot get judgement against his co-defendant
without obtaining directions from the court.

Patel v. Universal Timber Co. Ltd (1952) 19 E.A.C.A. 29 (CA-K)


(And see Ol’Kalou Stores v. Daniel (1948) 23 K.L.R. 1 (K)

Does not empower the registrar to enter judgement where a judge has granted an
adjournment subject to conditions and there has been default in compliance.

Govindji Popatlal v. Sardarilal Sunnak. Civil Appeal No. 1 of 1964


(unreported) (CA-K)

Does not empower the registrar to enter judgement where the claim is for pecuniary
damages.

Mwatsahu v. Maro [1967] E.A. 42 (K)

Rule 2A
Rule 3 (c.f. rule 4)

Does not empower the registrar to dispense with notice before issue of a warrant
under O. XXI, r. 18.

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Govindji Popatlal Madhavji v. Nasser Alibhai [1960] E.A. 167 (K)

Whether confers power to conduct proceedings.

Mandavia v. Rattan Singh [1968] E.A. 146 (CA-K)

Rule 1
(c.f. rule 2) Rule 2
Rule 3

Does not enable a District Registrar to entertain an application for stay of execution.

Ramkunver Dhanji v. Bhagwanji Sunderji & Co. (1932) 5 U.L.R. 9 (U)

Intended to apply to formal steps and interlocutory applications in suits; does not apply
to the determination whether an application to sue as a pauper is in order.

Simoni P.Z. Bamuzale v. Corret [1961] E.A. 691 (U)

(c.f. rule 3) Rule 4


Rule 5
Rule 4 Rule 6
Rule 7
Rule 8
Rule 9

TIME

Kenya: Order XLIX Uganda: Order XLVII


Rule 1 Rule 1
Rule 2 Rule 2

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Rule 3 Rule 3
Rule 3A Rule 4
Rule 4 Rule 5
Rule 5 Rule 6

Can apply to the period prescribed by rule 7 of the Arbitration Rules, being brought in
by s. 89 of the Civil Procedure Act (Kenya).

Manibhai B. patel v. Mehal Singh (1956) 23 E.A.C.A. 209 (CA-K)

Rule 6 Rule 7
Rule 7 Rule 8
Rule 8 Rule 9

MOTIONS AND OTHER APPLICATIONS

Kenya: Order L Tanganyika: Uganda: Order XLVIII


Rule 1 (c.f. O. XLIII, r. 2) Rule 1

Proceedings may be initiated by originating motion.

St Benoist Plantations Ltd. v. Felix (1954) 21 E.A.C.A. 105 (CA-K)

Although the rules do not specifically require a notice of motion to state the order and
rule under which it is made, that is the usual practice and should be followed.

Sarwan Singh v. Notkin (1952) 19 E.A.C.A. 117 (CA-K)


Suleman v. Nyaki Farmers Co-operative Ltd [1966] E.A. 409 (CA-K)

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Applications by chamber summons not properly before the court, struck out.

Namukasa v. Bukya [1966] E.A. 433 (U)


Kigoya v. A.G. Uganda [1966] E.A. 463 (U)

Where the court had jurisdiction to make the order it did, the fact that the application
was in the wrong form was a mere irregularity.

St Benoist Plantations Ltd. v. Felix (1954) 21 E.A.C.A. 105 (CA-K)


Boyes v. Gathurey (1954) Civil Appeal No. 44 of 1968 (not yet reported (CA-
K)

Does not apply to applications for the revocation of grants of probate, which should be
by suit.

Patit v. Tonnet [1961] E.A. 449 (CA-K)

Rule 1A
Rule 2 Rule 2
Rule 3 Rule 3

No affidavit is necessary where the application rests on a matter of law.

Odongkara v. Kamanda [1968] E.A. 210 (U)

Rule 4 Rule 4
Rule 5 Rule 5
Rule 6 Rule 6
Rule 7 Rule 7
Rule 8 Rule 8
(and see the Judicature
Act, 1967 (No. 11 of
1967), s. 15)

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Rule 9 Rule 9
Rule 10 Rule 10

Proceedings by or against the government

Kenya: Order LI
Rule 1
Rule 2

Interpretation

Kenya: Order LII


Rule 1
Rule 2

Orders of mandamus, certiorari and prohibition

Kenya: Order LIII Uganda: c.f. the Law


Reform (Miscellaneous
Provisions) (Rules of
Court) Rules (S.I. 74-1)

Intituling of applications for leave and notices of motion.

Farmers Bus Service v. Transport Licensing Appeal Tribunal [1959] E.A. 779
(CA-K)

(and see Mohamed Ahmed v. R. [1959] E.A. 523 (CA-U)

The Crown Proceedings Ordinance (now the Republic of Kenya Proceedings Act)
does not govern an application for certiorari against a Minister (obiter).

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A.G. Kenya v. Shah [1959] E.A. 375 (CA-K)

Rule 1
Rule 2
Rule 3
Rule 5
Rule 6
Rule 7

Note (1): The following cases concern the exercise of the power to issue prerogative
orders.

The utmost good faith is required on the part of an applicant.

Hirji Transport Service, Re an application by L.R.S. No. 4 of 1962, p. 1 (T)

As to what acts are judicial or quasi-judicial.

De Souza v. Tanga Town Council [1961] E.A. 377 (CA-T)


Bukoba Gymkhana Club, Re an application by [1963] E.A. 478 (T)

As to what words are sufficient in a statute to exclude the jurisdiction of the courts.

Re Marples’ Application [1958] E.A. 153 (K)

Where a statute provides that there shall be no appeal from the decisions of a tribunal,
certiorari may issue but only for lack or excess of jurisdiction and there is no power to
grant mandamus.

Milling Ordinance, In re: Nagindas Himabhai Desai (1953) 2 T.L.R. (R.) 192
(T)

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Milling Ordinance, In re: Habib Punja and Sons Ltd (1954) 2 T.L.R. (R.) 205
(T)

Hirji Transport Service, Re an application by [1961] E.A. 88 (T)

The common law power to quash the verdict of an inquest by certiorari may be
invoked, notwithstanding the existence of statutory power.

Nicholson, Re an application by [1961] E.A. 339 (T)

As to the period of limitation for applying for certiorari (Tanganyika).

Dar es Salaam Motor Transport Co. Ltd. v. Transport Licensing Authority


[1959] E.A. 403 (CA-T)

Clear words are needed in legislation to take away the remedy of mandamus.

District Commissioner, Kiambu v. R. [1960] E.A. 109 (CA-K)

As a general rule, a demand for action and its refusal are prerequisites to mandamus,
but there are exceptions.

District Commissioner, Kiambu v. R. [1960] E.A. 109 (CA-K)

Failure to exercise a right of appeal does not necessarily preclude relief by way of
mandamus.

Fazal Kassam (Mills) Ltd., Re an application by [1960] E.A. 1002 (T)

Prohibition issued as of right where a purported reference to an arbitrator was a


nullity.

Masaka District Growers Co-operative Union v. Mumpiwakoma Co-operative


Society Ltd [1968] E.A. 630 (CA-U)

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Note (2): As regards the power of the court to issue orders of mandamus
prohibition and certiorari, see-

As regards Kenya, the Law Reform Act (Cap. 26), ss. 8 and 9;

As regards Tanganyika, the Law Reform (Fatal Accidents and Miscellaneous


Provisions Ordinance (Cap. 360), ss. 17 and 18, intended to be introduced by the Law
Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (Amendment) Act,
1968 (No. 55 of 1968) (not yet in operation) and the Government Proceedings Act,
1967 (No. 16 of 1967), s. 23(3) (not yet in operation);

As regards Uganda, the Judicature Act, 1967 (No. 11 of 1967), ss. 34 and 35 and the
Government Proceedings Act (Cap. 69), s. 30(3).

Note (3): In Uganda, the Judicature Act, 1967 (No. 11 of 1967), s. 33, confers on
the High Court power to issue writs of habeas corpus. In Kenya and Tanganyika,
there is no statutory provision regarding writs of habeas corpus on the civil side, but
such writs may be issued, see –

Keshavlal Punja Prabat Shah, In re (1955) 22 E.A.C.A. 381 (CA-K);


Keshavlal Punja Prabat Shah v. A.G. Kenya (1955) 22 E.A.C.A. 216 (CA-K);
Ibingira v. Uganda [1967] E.A. 445 (CA-U)

See also section 28 of the Constitution of Kenya and Article 22 of the Constitution of
Uganda.

ARBITRATION

(Kenya: Order XLV) Tanganyika: The Second (Uganda: Order XLVIII)


Schedule
(Rule 1) Rule 1 (Rule 1)
(Rule 2) Rule 2 (Rule 2)

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(Rule 3) Rule 3 (Rule 3)


(Rule 4) Rule 4 (Rule 4)
(Rule 5) Rule 5 (Rule 5)
(Rule 6) Rule 6 (Rule 6)
(Rule 7) Rule 7 (Rule 7)
(Rule 8) Rule 8 (Rule 8)
(Rule 9) Rule 9 (Rule 9)
(Rule 10) Rule 10 (Rule 10)
(Rule 11) Rule 11 (Rule 11)
(Rule 12) Rule 12 (Rule 12)
(Rule 13) Rule 13 (Rule 13)
(Rule 14) Rule 14 (Rule 14)
(Rule 15) Rule 15 (Rule 15)
(Rule 16) Rule 16 (Rule 16)
Rule 17

Meaning of “sufficient cause”, the onus is on the party resisting the reference to
arbitration.

Hercules Insurance Co. Ltd. v. Trivedi & Co. Ltd [1962] E.A. 358 (CA-T)

Rule 18

Meaning of “at the earliest possible opportunity”, application need not be made before
filing the written statement of defence.

Rule 19
Rule 20
Rule 21

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Table of included in the digest

Name and citation of case Section of rule under


which included
Abbassi v. Alarakhia Kheraj & Co. (1930) 1 T.L.R. (R.) 454 T. O.XXII, r. 9
Abdala Habib v. Harban Singh Rajput (1960) E.A. 325 U. O.XV, r. 1
Abdallah Mohamed v. Ahmed bin Salem Makharran (1956) 23 E.A.C.A. Introduction
260
Abdoo v. Saleh (1964) E.A. 115 See under K. s. 62
Abdul Ghani v. Khan Bahadur (1932) 14 K.L.R. 40 See under T. O.VII, r.11
Abdul Rehman v. Gudka (1957) E.A. 4 K. O.II, r. 7
Abdul Wahid & Sons v. Munshiram & Co. (1932) 14 K. L.R. 47 K. O.XXII, r.1
Abdulla v. Official Receiver (1954) 21 E.A.C.A. 85 K. O.I, r.1
Abdulla Jaffer Dewji v. Ali R.M.S. Dewji (1958) E.A. 558 K. O.XIX, r.1
Abdulla Sulemanji v. Esmail Jivanjee Civil Appeal No. 36 of 1968 (not K. I.VI, r.1; O.X, r.11
yet reported)
Adrinwalla v. Hogan (1966) E.A. 290 T. s.30
African Overseas Trading Co. v. Acharya (1963) E.A. 468 T. O.VI, r.17; O.VII, r.1
African Overseas Trading Co. v. Bhagwanji Harjiwan (1960) E.A. 417 T. O.VI, r.11: O.VII, r.1
Aggarwal v. Official Receiver (1967) E.A. 585 T. O.XI, r.2
Ahmed H. Mulji v. Shirinbai Jadavji (1963) E.A. 217 Introduction; T. s. 95;
O.XLII, r.1
Ali v. Sheth (1950) 17 E.A.C.A. 88 K. ss.2, 65
Ali Mahdi v. Abdullah Mohamed (1961) E.A. 456 T. s.19
Ali Omar Mote v. Ali Siraji (1959) E.A. 883 K. O.XVII, r.6
Ali Suleman Mandevia v. Rungwe African Co-op. Union Ltd. (1958) See under K. O.XXXII,
E.A. 524 r.5
Alidina v. Alidina (1961) E.A. 565 T. O.XX, r.11
Allah Ditta Qureshi v. Patel (1951) 18 E.A.C.A. 1 K. O.I, r.9
Alwi A. Saggaf v. Abed A. Algeredi (1961) E.A. 767 T. ).XIII, r.4: and see
under K. s.66
Ambalal N. Patel Ltd. v. Marietti (1967) E.A. 194 K. s.27
Amin Electrical Services v. Ashok Theatres Ltd. (1960) E.A. 298 U. O.VII, r.1
Authur v. Nyeri Electricity Undertaking (1961) E.A. 492 K. s.27
Assanand and Sons (Uganda) Ltd. v. East African Records Ltd. (1959) K. O.V, r.21; O.VII, r.1;

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E.A. 360 O.XVIII, r.3


A-G (Kenya) v. Akoko Mboya (1962) E.A. 460 K. O.XXI, r.20
A-G Kenya v. Shah (1959) E.A. 375 K. O.LIII
A-G (Tanganyika) v. Khatoon C. Satchu (1960) E.A. 505 T. O..XXI, r.22
Bagorogoza v. Mbarinda (1959) E.A. 125 U. O.XLIV, r.8
Bains v. Halimabibi (1957) E.A. 13 K. O.XVIII, r.3;
O.XXII, r.1
Baker v. Rush 91964) E.A. 602 K. s.2
Baldevkumar Mohindra v. Mathuradevi Mohindra (1953) 20 E.A.C.A. K. O.XVI, r.1
56
Balinda v. Kangwamu (1963) E.A. 557 U. O.XLII, r.1
Balwant Singh v. Joginder Singh (1962) E.A. 395 K. O.I, r.8
Balwant Singh v. Kipkoech arap Serem (1963) E.A. 651 K. OVI, rr.1, 5; O.VII,
r.1; O. VIII, r.17
Bank of India Ltd. v. Manibhai M. Patel Ltd. (1965) E.A. 638 Introduction; U. s.101;
O.VI, r.17
Bank of India Ltd. v. Shah 91965) E.A. 18 U. O.I, r.3
Barclays Bank D.C.O. v. Patel (1959) E.A. 214 U. O.I, r.1; O.II, r.2
Bassant Kaur v. Rattan Singh C.A. No. 95 of 1952 (unreported) K. s.27; O.XXIII, r.3
Batten v. Kampala Bus Company 91959) E.A. 328 U. O.XXV, r.4
A. Baumann & Co. (Uganda) Ltd. v. Nadiope (1968) E.A. 306 U. O.V, r.1
D.D. Bawa Ltd. v. Didar Singh (1961) E.A. 282 U. O.VI, rr.18, 30;
O.VII, r.1
Baxi v. Bank of India Ltd. (1966) E.A. 130 U. s.101; O.VI, r.26
B.E.A. Timber Co. v. Inder Singh Gill (1959) E.A. 463 K. s.76; O.VI, r.19
Bhag Bari v. Medhi Khan (1965) E.A. 94 Introduction; K. s.2;
O.XXXVI, r.1
Bhagat Premchand v. Gomes (1956) 23 E.A.C.A. 95 K. ss.65; 66, 72
Bhagwanji Raja v. Swaran Singh (1962) E.A. 288 K. ss.2, 27; O.XLV,
r.15
Bhanji v. Bortot (1965) E.A. 522 T. O.IX, r.13
Bhatt v. Visram (1966) E.A. 495 K. s.91
Bhimji Hasham v. Hall (1929-30) 12 K.L.R. 122 K. O.XXI, r.35
Bilimoria v. Bilimoria (1962) E.A. 198 U. ss.68, 77

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Bishen Singh Ghadha v. Mohinder Singh (1956) 28


Bolton v. Salim Khambi (1958) E.A. 360 T. O.I, r.1; O.VII, r.4
Bombay Flour Mill v. Patel (1962) E.A. 803 T. s.70; O.XIX, r.3;
O.XXXV, r.3
Boyes v. Gathurey Civil Appeal No. 44 of 1968 (not yet reported) K.OXXXVI; O.L, r.1
Bray v. Bray (1957) E.A. 302 See under U. s.80
British East Africa Corp. (1939) Ltd. v. Ladha (1938-39) 18 K.L.R. 91 K. O.XXXV, r.2
British India General Insurance Co. Ltd. v. G.M. Parmar & Co. (1966) K. O.VI, r.18
E.A. 172
Brooks v. Isher Kaur (1932) 14 K.L.R. 103 K. O.I, r.18
Budai Coffee Hulling Factory Ltd. v. Babumba (1963) E.A. 613 U. O.XXXIII, r.2
Buike Estate Coffee Ltd. v. Lutabi 91962) E.A. 328 U. O.II, r.3
Bukoba Gymkhana Club, Re an application by (1963) E.A. 478 See under K. O.LIII
Caltex (Africa) Ltd. v. Esmail Kassam (1965) E.A. 35 K. O.XX, r.5
Camille v. Merali (1966) E.A. 411 K. O.XVIII, r.3;
O.XXXV, rr.2, 7
Camille v. Merali (1968) E.A. 314 K. s.2
Campos v. de Sousa (1933) 15 K.L.R. 86 K. O.I, r.8
Caniri v. Suleman (1964) E.A. 619 K. O.XXI, r.30
Caspair Ltd. v. Gandy 91962) E.A. 414 U. O.XVII, r.3, O.XXV,
r.4
Central District Maize Millers Assn., Mbale v. Maciel & Co. Ltd. (1944) Introduction;
6 U.L.R. 130 U. O.VII, r.11
Champion Motor Spares Ltd. v. Barclays Bank D.C.O. (1964) E.A. 385 U. O.I, r.14
Champion Motor Spares Ltd. v. Phadke C.A. No. 23 of 1968 (not yet U. O.I, r.14
reported)
Chandubhai H. Patel v. Taylor (1943) 10 E.A.C.A. 1 K. O.XLVI, r.7;
O.XLVIII, r.2
Charan Kaur v. Mistry Makanji Vanmali (1956) 23 E.A.C.A. 5 K. ss.65, 72, 75; O.XLI,
r.19
Cheleta Coffee Plantantions Ltd. v. Mehlsen (1966) E.A. 203 K. O.VI, r.18
Chester House & Co. v. Nairobi City Council (1966) E.A. 1 K. s.79
Choitram v. Dadlani (1958) E.A. 641 K. O.VII, r.1
Choitram v. Lazar (1959) E.A. 157 K. O.VII, r.1

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Churanjilal & Co. v. Adam (1950) 17 E.A.C.A. 92 K. O.XXXV, r.2


Collector v. Kassam Shivji Bhimji (1959) E.A. 1063 K. s.2
Colonial Blankets Trading Co. v. National and Grindlays Bank Ltd. K. O.XXI, r.38
(1962) E.A. 537
Commissioner of Income Tax v. Irish Electrical Co. Ltd. Civil Appeal K. O.XXXIV, r.4
No. 22 of 1968 (not yet reported)
Commissioner of Lands v. Sheikh M. Bashiri (1958) E.A. 45 K. O.II, r.3
Commissioner of Transport v. Gohil (1959) E.A. 936 T. O.VII, r.1
Commissioner of Transport v. Kenya Co-op. Creameries Ltd. (1954) 21 K. s.2; O.XIV, r.2
E.A.C.A. 70
E.M. Cornwell & Co. Ltd. v. Desai (1941) 6 U.L.R. 103 U. s.26; O.XXXIII, r.2
Cottar v. A.G. Kenya (1935) 5 E.A.C.A. 18 K. O.VI, r.29; O.VII, r.1
Coverdale & Stanley v. Saleh Mohamed (1931) 13 K.L.R. 43 See under T. s.39
Credit Finance Corporation Ltd. v. Karmali (1965) E.A. 545 K. O.XXXI, r.3
Cxeczowiczka v. Markus (1936) 3 E.A.C.A. 5 K. O.XXI, r.32
Damodar Jamndas v. Noor Valji (1961) E.A. 615 K. O.V, r.8
Damodar Jinabhai & Co. Ltd. v. Eustace Sisal Estates Ltd. (1967) E.A. T. O.VI, r.3; O.VII, r.1;
153 O.VIII, r.2
Dar es Salaam Motor Transport Co. Ltd. v. Transport Licensing See under K. O.LIII
Authority (1959) E.A. 403
Darbar v. Fatin (1967) E.A. 526 K. s.38
Darcy v. Jones (1959) E.A. 121 K. O.VI, r.6; O.XIV, r.1
Dattani v. Ahmad (1959) E.A. 218 U. O.VII, r.18
Daud Adbulla v. Ahmed Suleman (1946) 13 E.A.C.A. 1 K. O.I, r.8
Dembeniotis v. Central Africa Co. Ltd. (1967) E.A. 310 T. s.27
Devji v. Jinabhai 91934) 1 E.A.C.A. 87 U. O.XI, r.6
Devram Nanji Dattani v. Dawda (1949) 16 E.A.C.A. 35 U. s.27
Dhillon v. Sham Kaur (1960) E.A. 795 K. s.2, O.XXXVI, r.10;
O.XLII, r.1
Dhulla Harichand v. Gulam Mahu-udin (1940) 19 K.L.R. 6 K. O.XXIII, r.11
Din Mohamed v. Lalji Visram & Co. (1937) K. O.IX, rr.17,24
District Commissioner, Kiambu v. R. (1960) E.A. 109 K. O.LIII
D.T. Dobie & Co. (U) Ltd. v. United India Fire & General Insurance Co. U. s.27
Ltd. (1964) E.A. 16

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Donnebaum v. Nikolascheck (1966) E.A. 25 K. O.V, r.21


Dullo v. Shah & Sons (1968) E.A. 595 K. O.XLVI, r.9
Durvesh v. Villain (1957) E.A. 91 See under K. O.XIV, r.5
East Africa Roofing Co. Ltd. v. Pandit (1954) K. O.III, r.1
East Bakery v. Castelino (1958) E.A. 461 U. O.VI, r.18
Eastern Radio Service v. Patel (1962) E.A. 818 K. O.VI, r.18; O.VII, r.1
Eastern Radio Service v. Tiny Tots (1967) E.A. 392 K. O.X, r.20
Eksteen v. Kutosi s/o Bukua (1951) 24(2) K.L.R. 90 K. O.IX, rr.4, 17, 24
O.XLVIII, r.2
Elkan v. Patel (1960) E.A. 340 U. O.III, r.4
Epicure Ltd. Re (1960) E.A. 308 U. s.101
Erimiya Serunkuma v. Elizabeth Nandyose (1959) E.A. 127 U. O.XLII, r.1
Erukana Kavuma v. Mehta (1960) E.A. 305 U. O.V, rr. 9, 14
Essaji v. Solanki (1968) E.A. 218 T. O.XXXIX, r.1
Estratius Karageorgelis v. Emanuel Mavroudis (1933) 1 T.L.R. (R) 479 T. O.XXXV, r.3
Farmers Bus Service v. Transport Licensing Appeal Tribunal (1959) K. O.LIII, r.1
E.A. 779
Farrab Inc. v. Robson (1957) E.A. 441 K. O.XXV, r.1
Fatin v. Darbar (1964) E.A. 662 K. s.38
Fazal Dhirani v.Abdulamohamed Ismail Ganji (1946) 13 E.A.C.A. 69 K. s.27
Fazal Haq v. Wassawa Singh (1940) 19 K.L.R. 23 K. O.VIII, r.18
Fazal Kassam (Mills) Ltd. Re an application by (1960) E.A. 1002 See under K. O.LIII
Fernandes v. Kara Arjan & Sons (1961) E.A. 693 T. O.I, r.10
Finaughty v. Prinsloo (1958) E.A. 657 K. O.V, r.1; O.IX, r.19
Fisher, Simmons & Rodway (East Africa) Ltd. v. Visram (1932) 14 K. O.IX, r.8
K.L.R. 93
Fort Hall Bakery Supply Co. v. Wangoe (1958) E.A. 118 K. O.IX, rr.10, 19, 24;
O.XX, r.11
Gajender Pal v. Ram B. Sirdaw (1961) E.A. 344 U. O.XXI, r.4
Ganatra v. Uganda Electricity Board (1963) E.A. 26 U. O.VIII, r.2
Gandy v. Caspar Air Charters Ltd. (1956) 23 E.A.C.A. 139 K. O.VI, r.1
General Manager E.A.R. & H.A. v. Thierstein (1968) E.A. 354 K. O.VI, r.18
General Trading Co. Ltd. v. Patel (1958) E.A. 702 U. O.VIII, rr.1, 12
George and Company v. Pritam’s Auto Service (1955) 22 E.A.C.A. 233 K. O.VI, r.19;
O.XXIX, r.9
Gillani’s Modern Bakery v. Kuntner (1954) 21 E.A.C.A. 123 K. s.25; O.XX, r.1

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Govindji Popatlal Madhavji v. Nasser Alibhai (1960) E.A. 393 K. s.92


Guaranty Discount Co. Ltd. v. Ward (1961) E.A. 285 K. O.VII, r.1
Gulabrai Khandubhai Dessai v. Abdulla Khan (1932( 14 K.L.R. 107 K. O.XXXV, r.2
Gulamali Koorjee v. Noor Fatuma (1940) 19 K.L.R. 46 K. O.XXXVI, r.3A
Gulamhussein Sachedina v. Nanji Khimji 91921) 3 U.L.R. 80 U. O.XIX, r.14
Gunning v. Motor Mart & Exchange Ltd. L.R.S. 1 of 1962, p. 5 T. O.XXXIX, r.10
Gupta v. Bhamra (1965) E.A. 439 Introduction; U. O.VII,
r.11
Gurbachan Singh Kalsi v. Yowani Ekori (1958) E.A. 450 U. ss.7, 77; O.XL, r.1
Gurdial Singh Dhillon v. Sham Kaur (1960) E.A. 795 K. s.2
Habib Javer Manji v. Vir Singh (162) E.A. 557 K. O.VI, rr.17, 18, 29
Hagod Jack Simonian v. Johar (1962) E.A. 336 K. O.VI, rr.17, 18, 21
Haji Abdurahim v. Abdulla Khimji (1929-30) 12 K.L.R. 58 K. O.VI, r.11
Harilal & Co. v. Standard Bank Ltd.91967) E.A. 512 K. O.VI, r.1
Harji Karsan v. Monjee Raghavji 91943) 10 E.A.C.A. 10 K. s.27; O.VI, r.18
Harnam Dass v. Corbin (1959) E.A. 834 K. O.XXVI, r.1
Harnam Singh v. Jamal Pirbhai (1956) 23 E.A.C.A. 226 K. ss.91, 97
Hasham Lalji v. Kotecha (1940) 19 K.L.R. 20 K. s.65
Hasham Meralli v. Javer Kassam & Sons Ltd (1957) E.A. 503 K. O.VI, r.18
Hasham Suleman Ltd. v. Sayani (1963) E.A. 603 T. O.VI, r.10
Hasmani v. Banque du Congo Belge (1938) 5 E.A.C.A. 89 T. O.XXXV, r.3
Hassam Karim & Co. Ltd. v. Africa Import & Export Central Corp. Ltd. T. ss.79, 95
(1960) E.A. 396
Hassan v. Hunt (1964) E.A. 201 T. O.VII, r.1
Hassanali s/o Somji v. Kishen Singh (1944-45) 21(1) K.L.R. 29 K. O.I, r.10
Hassanali Issa & Co. v. Jeraj Produce Store (1967) E.A. 555 T. O.XXXV, r.3
Hassanali Jaffer Peerani v. Horn (1930) 1 T.L.R. (R) 467 T. O.XX, r.11
O.XXXV, r.2
Hathisang Premji Patel v. Ramji Jethabhai 91947) 14 E.A.C.A. 23 K. O.IX, r.9
Helena Yakobo v. Tanganyika Contractors (1963) E.A. 261 T. O.VII, r.1
Heptulla Bros. Ltd. v. Thakore (1957) E.A. 358 K. s.2
Hercules Insurance Co. Ltd.v. Trivedi & Co. Ltd. (1962) E.A. 358 T. 2nd Schedule, r.17
Hirji v. Modessa (1967) E.A. 724 T. O.XVI, r.7
Hirji Transport Service, Re an application by, (1961) E.A. 88 See under K. O.LIII
Hirji Transport Service, Re an application by, L.R.S. No. 4 of 1962, p. 1 See under K. O.LIII

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Hogan v. Adrianwalla (165) E.A. 594 T. s.68


Hormusji K. Hathadaru v. Trustees for the Port of Aden, Civil Appeal No. See under K. I.VI, rr.4,
79 of 1963 (unreported) 29
Hornsted v. Hornsted (1963) E.A. 32 T. O.XXVL, r.15
Horra v. Horra (1959) E.A. 981 K. O.XXIX, r.1
Hussein Esmail Bros. V. Gordhan Bogha (1935) 2 E.A.C.A. 98 U. s.2
Hussein Janmohamed & Sons v. Twentsche Overseas Trading Co. Ltd T. s.30
(167) E.A. 287
Husseinali Dharamsi Hasmani v. National Bank of India Ltd (137) 4 T. O.VI, r.11;
E.A.C.A. 55 O.VII, rr.1, 11
Ibingira v. Uganda 91966) E.A. 445 See under K. s.66;
O.KIII
Iddi Halfani v. Hamisa binti Athumani (1962) E.A. 761 T. O.XXI, r.27
Ilanga v. Manyema Manyoka (1961) E.A. 705 T. O.VII, r.1
International Life Insurance Co. (U.K.) Ltd. v. Amin, Civil Application K. O.VI, r.21, s.97;
No. Nai. 12 of 1968 (unreported)
Iron & Steelwares Ltd. v. C.W. Martyr & Co. (1956) 23 E.A.C.A. 175 K. O.XVII, r.2
Isher Singh v. Patel (1952) 19 E.A.C.A. 64 K. O.VI, r.17;
O.VII, r.1
Ishmael v. Uganda Co. Ltd. (1934) 5 U.L.R. 99 U. O.XVII, r.3
Ismail Sunderji Hirani v. Noorali Esmail Kassam (1952) 19 EA.C.A. 131 K. O.XX, r.2;
O.XXIV, r.6
Jadva Karsan v. Harnam Singh Bhogal (1953) 20 E.A.C.A. 74 K. ss.6, 97; O.XI
Jaffer v. Gupta (1959) E.A. 406 T. s.79; O.XLII, r.1
Jaffers Ltd. v. Caltex (Africa) Ltd. 91961) E.A. 140 See under K. s.11
G.P. Jani Properties Ltd. v. Dar es Salaam City Council (1966) E.A. 281 T. O.VI, r.17
O.VII, r.11;
O.VIII, r.2
Janmohamed Alibhai v. Ramji A. Raichura (1953) 20 E.A.C.A. 24 U. s.2; O.XL, r.1
Janmohamed Ladha, Re (1961) E.A. 175 T. s.54; O.XXI, r.2
Janmohamed Umerdin v. Hussein Amarshi (1953) 20 E.A.C.A. 41 K. O.XIV, r.5
Jeraj Shariff & Co. v. Chotai Fancy Stores (1960) E.A. 374 U. s.66;
O.VI, r.29;
O.VII, r.1
Jiwan Singh v. Rugnath Jeram (1945) 12 E.A.C.A. 21 K. s.27
Joshi v. Uganda Sugar Factory Ltd. (1968) E.A. 570 U. O.VI, rr.3, 7, 9
Jupiter General Insurance Co. Ltd. v. Rajabali Hasham and Sons (1960) T. O.VI, r.17
E.A. 592
Kabaka v. Prince George Mawanda (1964) E.A. 718 U. s.2
Kagenyi v. Musiramo (1968) E.A. 43 U. s.18
Kaggwa v. Costaperaria (1963) E.A. 213 U. O.I, r.14

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Kaggwa v. Vallabhdas Vithaldas & Sons Ltd. 91965) E.A. 165 U. O.VII, r.1
Kamau v. Gecharu (1953) 20 E.A.C.A. 59 K. s.68
Kanani v. Desai (1954) 7 U.L.R. 135 U. O.I, r.3
Kanji Naran v. Velji Ramji 91954) 21 E.A.C.A. 20 K. O.IX, rr.3, 10
Kapadia v. Thakersey Laxmidas (1960) E.A. 852 K. O.XXV, r.1
Karachi Gas Co. Ltd. v. Issaq (1965) E.A. 42 K. O.V, r.21
Karia v. Shah (1962) E.A. 43 K. O.XVII, r.2
Karia v. Wambura 91961) E.A. 91 T. s.79
Karm Elahi v. Ahmed Mohamed 91929-30) 12 K.l.R. 49 K. O.XXV, r.1
Karmali Tarmohamed v. Lakhani & Co. (1958) E.A. 567 U. O.XXXIX, r.22
Karsan & Co. v. Akberali Jaffer (1964) E.A. 21 T. s.44
Karshe v. Uganda Transport Co. Ltd. (1967) E.A. 774 U. s.7; O.VIII, r.2
Kartar Singh v. Tilles (1952) 25 K.L.R. 10 K. O.VIII, r.2
Kashibai v. Sampagama 91967) E.A. 16 U. O.VI, r.3
Kassamali Gulamhusein Co. (Kenya) Ltd. v. Kyrtatas Bros Ltd. (1968) K. O.XVIII, r.3
E.A. 542
Kassamba v. Banafa 91955) 7 U.L.R. 142 U. s.27
Kasule v. Kawesa (1957) E.A. 611 U. s.26; O.XXXIII, r.2
Katikiro of Buganda v. A.G. Uganda 91958) E.A. 765 U. O.VII, r.11
Kaur v. City Auction Mart (1967) E.A. 108 U. O.V, r.1
Keeble v. Shelton (1948) 15 E.A.C.A. 14 U. s.101;
O.XXV, rr.11, 12
Kehar Singh v. Bhatt 91962) E.A. 759 K. O.XXXVI, r.3A
Keharchand v. Jan Mohamed 91919-21) 8 E.A.L.R. 64 K. s.7
Kenya African Assn. Of Farmers and Traders Co-op. Ltd. v. Mwigariuri K. s.95
(1950) 17 E.A.C.A. 70
Kenya Meat Commission v. Jackson & Hill (1958) EA. 719 K. O.I, r.19
Kenya Tobacco Co. Ltd. v. Nairobi Trading Stores (1954) 27 K.L.R. 37 K. O.XXIX, r.4
Keshavji Jethabhai & Bros. Ltd. v. Kurji L.R.S. No. 4 of 1962, p. 48 T. s.79
Keshavji Jethabhai & Bros. Ltd. v. Saleh Abdulla (1959) E.A. 260 T. O.XX, r.11
Keshavlal Punja Parbat Shah, In re. (1955) 22 E.A.C.A. 381 Introduction;
K. s.66; O.LIII
Keshavlal Punja Parbat Shah v. A.G. Kenya (1955) 22 E.A.C.A. 216 K. O.LIII
Khan v. Ramji Kanji & Co. (1966) E.A. 506 K. O.XXI, r.53;
O.XXII

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Khan v. Roshan (1965) E.A. 289 K. O.VVI, r.18


O.VII, r.6
Khan Stores v. Delawer (1959) E.A. 714 T. s.79
Khemaney v. Lachabai Murlidina (1960) E.A. 1 See under K. s.78
Khimji v. Bakari (1968) E.A. 685 K. O.XIV, r.6
Khushaldas & Sons Ltd v. Weinstein (1964) E.A. 734 K. O.XXIV, r.6
Kigoya v. A.G. Uganda (1966) E.A. 463 U. O.XLVIII, r.1
Kimani v. Gikanga (1965) E.A. 735 K. s.87
Kimani v. McConnel (1966) E.A. 547 K. O.IX, r.10
Kirati Singh & Co. v. Punja Meghji & Sons 91952) 19 E.A.C.A. 33 K. O.XXXV, r.2
Kirpal Singh v. Jagat (1965) E.A. 178 K. O.XXVII, r.11
Kiska Ltd. v. de Angelis Civil Appeal No. 9 of 1968 (unreported) K. s.27; O.VIII, r.13
Kisumu Motor Works v. Gulamhussein Manji (1940) 19 K.L.R. 8 K. O.XLI, r.1
Kohli v. Maghar Singh (1967) E.A. 282 K. O.XXI, r.52
Kohli v. Poatlal 91964) E.A. 219 K. O.I, r.10
Kotak Ltd. v. Kooverji (1967) E.A. 348 T. O.XXXIX, r.1;
O.XL, r.2
Kothari v. Qureshi (1967) E.A. 564 K. O.XXIII, r.4
Kulsumbai Ramji v. Abdulhussein Rahim (1957) E.A. 699 See under K.
O.XXXVI, r.1
Kuna arap Rona v. Swaran Singh Dhanjal 91966) E.A. 184 K. O.VI, r.29
Kundalal Restaurant v. Devshi & Co. 91952) 19 E.A.C.A. 77 K. O.XXXV, rr.2, 7
Lake Motors Ltd. v. Overseas Motor Transport (T) Ltd. (1959) E.A. 603 T. O.VII, r.1
Lakhan v. Bhojani (1950) 17 E.A.C.A. 7 K. O.VI, r.17
Lal Singh v. Munshi Ram & Co. (1937) 4 E.A.C.A. 9 K. O.XXIV, r.6;
O.XLI, r.1
Lamberito Kafuzi v. Yozefu Ntaama (1960) E.A. 14 U. s.27
Lata v. Mbiyu 91965) E.A. 592 K. s.26
Lewis Fernandes v. Issah & Son (1918-21) 8 E.A.L.R. K. s.11
Life Insurance Corporation of India v. Panesar (1967) E.A. 614 K. O.XVIII, r.3
Lobo v. Baganda Butchers Ltd. (1947) 14 E.A.C.A. 12 U. s.26
Lobo v. Modhoram (1951) 24(2) K.L.R. 28 K. s.47
Lombard Banking Kenya Ltd. v. Shah Bhaichand Bhagwanji (1960) E.A. K. O.I, r.10
969
London Overseas Trading Co. Ltd. v. Raleigh Cycle Co. Ltd (1959) E.A. U. O.XVII, r.3

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1012
M.B. Automobiles v. Kampala Bus Service (1966) E.A. 480 U. O.V, r.17
Magon v. Ottoman Bank (1968) E.A. 156 K. s.97; O.IX, r.10
Makumbi v. Puran Singh Ghana (1962) E.A. 331 U. s.63
Malik v. Gallow (1958) E.A. 99 T. ss.7, 78
Mandavia v. Rattan Singh (1962) E.A. 730 K. s.75
Mandavia v. Rattan Singh (1965) E.A. 118 K.ss.2, 7, 68
Mandavia v. Rattan Singh (196*) E.A. 146 K. s.2; O.XXI, rr.61, 73,
79; O.XLVIII, r.3
Mangat v. Sharma (1968) E.A. 620 T. O.VI, r.10
Manibhai B. Patel v. Mehal Singh (1956) 23 K. ss.89, 95;
O.XLIX, r.5
Mansion House Ltd. v. Wilkinson (1954) 21 E.A.C.A. 98 K. s.2
Manubhai B. Patel v. Gottfried (1953) 20 E.A.C.A. 81 K. O.XVI, r.1
Manyangenda v. Singo Wolfram Mines Ltd. 91955) 7 U.L.R. 144 U. O.XIX, r.62
Maria B.S. de Souza v. Campbell Clause 91932) 14 K.L.R. 56 See under T. s.39
Marples’ Application, Re (1958) E.A. 153 K. O.LIII
Marwaha v. Pandit Dwarka Nath (1952) 25 K.L.R. 45 K. O.I, r.10
O.IX, r.1
A.M. Marwaha & Co. v. Subhakhan (1931) 13 K.L.R. 29 K. O.XLV, r.13
Masaka District Growers Co-operative Union v. Mumpiwakoma Co- See under K. O.LIII
operative Society Ltd (1968) E.A. 630
Matayo K. Kaboha v. Abibu bin Abdulla (1942) 6 U.L.R. 121 U. s.18
Matemba v. Matemba (1968) E.A. 646 T. s.3; O.XX, r.3
Matemba v. Yamulinga (1968) E.A. 643 T. s.79
Matharu v. Italian Construction Co. Ltd. (1964) E.A. 1 T. O.I, r.10
Mbogo v. Shah (1968) E.A. 93 K. O.IX, r.10
Mehta v. Karsandas Pitamber & Bros (1958) E.A. 691 U. O.XIX, r.45
Mehta v. Karsandas Pitamber & Bros (1958) E.A. 694 U. O.XIX, r.45
Mehta v. Shah 91965) E.A. 321 K. s.106; O.I, r.10;
O.XXIII, r.3
M.P. de Mello v. Chhaganlal Chunilal Shah (1932) 14 K.L.R. 125 K. O.XXI, r.43
Meru Farmers Co-operative Union v. Abdul Aziz Suleman (No. 1) (1966) K. O.I, r.10;
E.A. 436 ).VI, rr.18, 29
Milling Ordinance, In re: Habib Punja and Sons Ltd 91954) 2 T.L.R. (R) See under K. O.LIII
205
Milling Ordinance, In re: Nagindas Himabhai Desai (1954) 2 T.L.R. (R) See under K. O.LIII
193
Mirza Mazhar v. Mathra Dass (1922) 9 E.A.L.R. 36 K. O.XXI, r.18

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Misango v. Musigire 91966) E.A. 390 U. O.VI, r.29


Mitha v. Ladak 91960) E.A. 1054 T. O.IX, r.13
Mityana Ginners Ltd. v. Public Health Officer, Kampala (1958) E.A. 339 U. ss.2, 93
Mohamed s/o Mohamed v. Athman Shamte (1960) E.A. 1062 T. s.29
Mohamed Ahmed v. R. (1957) E.A. 523 See under K. O.LIII, r.1
Mohamed B.M. Dhanji v. Lulu & Co. (1960) E.A. 541 T. O.XII, r.4
Mohamed Haji Abdulla v. Ghela Manek Shah (1956) 23 E.A.C.A. 342 K. s.80; O.XX, r.3;
O.XLIV, r.1
Mohamed Hassan v. Nana binti Mzee (1941) 8 E.A.C.A. 12 K. O.XXXVI, r.1
F.J. Mohamedbhai & Co. Ltd. v. Yusuf Abdul Ghani (1952) 19 E.A.C.A. K.s.2
38
Mohan Dairy v. Bhurabhai 91966) E.A. 571 I. O.XXIII, r.8
Momin Corporation (U) Ltd. v. Jiwani (1964) E.A. 244 U. O.XXXIII, r.2
Motibhai Girdharbhai v. Thomas E. King & Co. (Overseas) Ltd. (1959) See under K. O.VII, r.1
E.A. 270
Motor Mart & Exchange Ltd. v. Standard General Insurance Co. Ltd. U. O.X, r.19
(1960) E.A. 616
Mugambi v. Gatururu (1967) E.A. 196 K. O.XXXV, r.2
Muhinga Mukono v. Rushwa Native Farmers Co-op. Soc. Ltd. 91959) T. s.79
E.A. 595
Mukibi v. Bhavsar (1967) E.A. 473 U. O.VII, r.11
Muljibhai Dessaibhai v. Danieri Okiror (1932) 5 U.L.R. 12 U. O.XIX, r.14
Municipal Board of Mombasa v. Ogilvie (1956) 23 E.A.C.A. 117 K. O.VII, r.1
Munshiram & Co. v. Star Soda Water Factory (1934) 16 K.L.R. 50 K. O.XLI, r.1
Musa bin Khamis v. Kaporo bin Kasibu (1957) E.A. 189 See under K. s.7
Musa M. Luwala v. Collector for Western Uganda Rly. Extn. (1959) E.A. U. ss.3, 77
848
Musoke v. Dol 91943) E.A. 526 U. s.27
Mutungi v. Kabuchi 91966) E.A. 454 K. O.II, r.2
Mwatsahu v. Maro (1967) E.A. K. O.IX, r.4;
O.XLVIII, r.2
N.A.S. Airport Services Ltd. v. A.G. Kenya (1959) E.A. 53 K. O.IX, r.4;
O.VII, r.1
N.A.S. Airport Services Ltd. v. A.G. Kenya (1959) E.A. 349 K. s.27

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