[1933] EACA 13

[1933] EACA 13

The court held that in suits brought by the Crown, a counterclaim by the subject cannot be entertained. The proper procedure for asserting claims against the Crown is by petition of right and obtaining the Governor's fiat, as stipulated under Cap. 17, Laws of Kenya. Allowing counterclaims would undermine the statutory process and render the provisions of Cap. 17 ineffective. The authorities cited by the defendant were distinguished on the basis that the petition of right did not exist in those jurisdictions, whereas domestic legislation in Kenya provides a clear procedure for claims against the Crown. The court found that the defendant's counterclaim was procedurally improper and must be...

Citation
[1933] EACA 13
Parties
Plaintiff: The Attorney General; Defendant: Capt. E. Caswell Long
Court
East African Court of Appeal
Jurisdiction
Uganda
Judgment Date
1 January 1933
Case Number
C.C. 11/1933.
Procedural Posture
Civil Suit / Ruling
Outcome
counterclaim struck out; costs awarded to the Crown
Judges
Gamble. Ag. J. (Kenya)
Legal Topics
Counterclaim Against Crown, Petition of Right, Government Liability
Source Language
English
Civil Procedure Counterclaim Against Crown Petition of Right Government Liability

Case Brief

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Parties

The Attorney General

Plaintiff

Capt. E. Caswell Long

Defendant

Procedural Posture

Civil Suit / Ruling

Legal Issues

  1. 1 Whether a counterclaim by the subject can be entertained in suits brought by the Crown.
  2. 2 Whether the proper procedure for claims against the Crown is by petition of right and obtaining the Governor's fiat under Cap. 17, Laws of Kenya.

Ratio Decidendi

The court held that in suits brought by the Crown, a counterclaim by the subject cannot be entertained. The proper procedure for asserting claims against the Crown is by petition of right and obtaining the Governor's fiat, as stipulated under Cap. 17, Laws of Kenya. Allowing counterclaims would undermine the statutory process and render the provisions of Cap. 17 ineffective. The authorities cited by the defendant were distinguished on the basis that the petition of right did not exist in those jurisdictions, whereas domestic legislation in Kenya provides a clear procedure for claims against the Crown. The court found that the defendant's counterclaim was procedurally improper and must be...

Court Disposition

counterclaim struck out; costs awarded to the Crown

Orders

  • The defendant's counterclaim is excluded from the proceedings.
  • Taxed costs of this application are awarded to the Crown.