[1952] EACA 38

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and THACKER, J. (Kenva)

F. H. MOHAMEDBHAI & CO. LTD., Appellants (Original Defendants)

## YUSUF ABDUL GHANI, Respondent

Civil Appeal No. 67 of 1951, consolidated with Civil Appeal No. 70 of 1951

(Appeal from decision of H. M. Supreme Court of Kenya, Harley, J.)

Practice—Appeal Court—Order—Meaning of Kenya Civil Procedure Ordinance, section $\overline{2}$ .

The appellants in each appeal, appealed against an order of the Supreme Court but failed to draw up any final order as defined by section 2 of the Kenya Civil Procedure Ordinance.

Held (27-3-52).—An order still means the final expression of any decision of a Civil Court which is not a decree.

Cases cited: Munshiram & Co. v. Star Soda Water Factory, 16 K. L. R. (1934) 5,<br>page 50, Jivanji v. Jivanji (12 K. L. R. 41), Ribiero v. S. E. Facko, (1936) A. C. 300,<br>Aluminium Union Ltd. v. Narandas, (1937) 4 E. A. C. A. 20.

Nowroiee for appellant.

D. N. Khanna for respondent in Civil Appeal No. 70 of 1951.

Akram for respondent in Civil Appeal No. 67 of 1951.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—As the preliminary objection taken by learned Counsel for the respondents in both these appeals was the same, I propose to deliver a consolidated judgment. In both appeals the Court upheld the objection, dismissed the appeals with costs, and intimated that it would give its reasons in writing on another day.

Shortly, the issue is this. In the case of an appeal entered against an order made by a Judge of the Supreme Court of Kenya is it a competent appeal which can be entertained by this Court unless it purports and in fact does appeal against "an order" as defined in section 2 of the Kenya Civil Procedure Ordinance? That definition is as follows: -

"'Order' means the formal expression of any decision of a civil court which is not a decree and shall include a rule nisi."

In both these cases what is appealed against is not "an order" as so defined, because in neither case was any formal expression of the Court's decision drawn up, but the reasons given by the Judge for his decision.

Under section 16 (1) of the East African Court of Appeal Order in Council, 1950, jurisdiction is conferred on this Court to hear and determine appeals "from judgments and Courts of the Territories (including reserved questions of law and cases stated) and to exercise such powers and authorities as may be prescribed by or under any law for the time being in force in any of the Territories respectively".

It is beyond argument then that this Court can only entertain an appeal in both civil and criminal matters by reason of some provision in the municipal law of the Territory from which an appeal emanates under which the appellant can show that he had a right to prefer an appeal to this Court. In civil matters, so far as the Colony of Kenya is concerned, the right of appeal is governed by section 66 of the Civil Procedure Ordinance which reads as follows:-

"66. Unless otherwise expressly provided in this Ordinance, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees or any part of decrees and from<br>the orders of the Supreme Court to the Court of Appeal for Eastern Africa."

By other provisions of the Code or in the Rules of Court made thereunder some orders are appealable as of right and some only by leave of the Court making the order. For my present purpose I need not refer to these provisions; it is sufficient to note that in the two instant cases, the Judge in each case gave leave to appeal as an appeal did not lie as of right. What must at once be noted, however, is that when the term "order" is used in section 66 this must mean a formal expression of any decision of a Civil Court which is not a decree, for there is nothing in the section repugnant to the definition in section 2. This matter could end here because it is conceded that in neither case is there "an order" (as defined by section 2) in existence. There is nothing therefore against which the party aggrieved can appeal, because the municipal law of Kenya does not provide, in the case of a decision of a Civil Court which is not a decree, that an appeal can be entered either by leave or as of right against a decision of a Civil Court not formally expressed so as to constitute an "order". I propose, however, to extend my judgment somewhat because it is very evident that over the years, confusion has from time to time arisen over the precise meaning of the terms "decree", "judgment", "order". In 1934, Webb, J. of the Supreme Court of Kenya, sitting alone in appellate jurisdiction, distinguished between "a judgment" and "an order" and refused to entertain an appeal against the decision of a Resident Magistrate striking out an amended plaint because no formal order had been drawn up. (Munshiram & Co. v. Star Soda Water Factory, 16 K. L. R. 1934-5 at page 50.) In so doing he followed a ruling of this Court in Jivanji v. Jivanji (12 K. L. R. 41) to the effect that it was the duty of a party who wishes to appeal against or apply for a review of a decree or order to move the Court to draw up and issue a formal decree or order. Both these decisions came under review by their Lordships of the Privy Council in Ribiero v. S. E. Facko, (1936) A. C. 300 and were in effect approved. In that case the Privy Council refused to interfere with a discretion exercised by this Court refusing an application to appeal out of time and their Lordships stated that "they would have difficulty in affirming the contention of the respondents that the original judgment... not having been drawn up in the form of a decree within the definition contained in section 2, sub-section (4) of the Kenya Civil Procedure Ordinance, 1924, could be treated as a decree from which an appeal might competently have been taken". I should observe here that the term "decree" as defined in the Kenya Civil Procedure Ordinance, before the amending Ordinance 29 of 1935, meant the formal expression of an adjudication conclusively determining the rights of the parties. In the Ribiero case the Privy Council was not concerned with the amendment made in 1935 because it had been enacted after the case which their Lordships had under review (see Ribiero v. Sequiera I. E. A. C. A. at page 1).

The enactment by the legislature of Kenya of the Civil Procedure (Amendment No. 2) Ordinance, 1935 (Ordinance 29 of 1935), brought about a radical change in the meaning of the term "decree" because by section 2 the following proviso was added to the definition:

"Provided that for the purposes of appeal the word 'decree' shall include judgment and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up."

Since 29th November, 1935, therefore, in so far as the matter was governed by the municipal law of Kenya, an appeal from any judgment of the Supreme Court of Kenya, could be preferred to this Court whether or not a formal decree had been drawn up. Now the amending Ordinance of 1935, whether by accident or design, I know not, left the law precisely as it was so far as an appeal against an order is concerned. An "order" still means the formal expression of any decision of a Civil Court which is not a decree, nothing more and nothing less. This is so because the proviso to the definition of the term "decree" applies only to the judgment of a Court on an issue which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, although it may be either preliminary or final, or partly preliminary and partly final. The term "judgment" can never be properly extended to include the reasons given by a Court pursuant to the making of an order.

There still remains to be noted the amendment to the Rules of this Court made in 1938 (see Kenya Government Notification 654/1938). I refer to the amendment to rule 6 (2) which was as follows: $-$

"(2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree appealed against without any argument or narrative, and such grounds shall be numbered consecutively. The memorandum $(a)$ in the event of an appeal from a judgment, finding or order shall be accompanied by a copy of such judgment, finding or order; (b) in the event of an appeal from a decree issued in pursuance of a judgment, finding or order shall be accompanied by both a copy of such decree and a copy of the judgment, finding or order in pursuance of which such decree has been issued; $(c)$ in the event of an appeal from a sentence shall be accompanied by a copy of the judgment, finding or order upon which sentence is based.

The memorandum of appeal shall be in quadruplicate, and shall state whether the whole or part only of the decree is objected to, and in the latter case shall specify such part.

The memorandum of appeal shall also state the nature of the relief which is sought."

This rule is a procedural rule regulating the form which a memorandum of appeal shall take where by the municipal law of a constituent Territory a right of appeal to this Court is provided. The significance of the amendment, which was made after the decision of this Court in the Aluminium Union Case (1937 IV E. A. C. A. 20) is that it permitted a Kenya appellant in a case where a judgment had not been followed by a decree to attach to his memorandum of appeal a copy of the judgment only. In fact the amending rule is drafted in sufficiently wide terms that if the municipal law of Kenya permitted an appellant to appeal against a decision of a Court not subsequently formally expressed as "an order", it would be sufficient if the appellant attached a copy of the Judge's reasons only. It is only because the Kenya Ordinance of 1935 did not extend the proviso to the making of orders that the preliminary objection taken in these two instant cases succeeds.

In the Aluminium Union case (*supra*) this Court, on a preliminary objection, was presented with a conflict between its own rule, as it stood before the amendment made in 1938, and the enlargement in procedure brought about by the Kenya Ordinance 39 of 1935. The wording of rule 6 (2) of this Court before the 1938 amendment required an appellant to attach to his memorandum of appeal, not only a statement given by the Judge containing the reasons for his decision, but also a copy of the decree embodying his decisions. This Court held by a majority that where conflict existed between municipal legislation and Rules

of this Court made in pursuance of an Imperial Order in Council, the latter prevailed, and that accordingly, the objection that the appellant could not be heard because he had not filed a copy of the decree had to be sustained.

I have two observations to make on this case. Firstly, by it, this Court did not hold that by reason of its own Rules it could entertain an appeal not provided for by the municipal law of a constituent Territory. Secondly, so far as Kenya is concerned, the case has lost importance because now there is nothing in the rule as amended which prevents an appellant from Kenya from preferring his appeal to this Court in any case where by the law of Kenya he is entitled to appeal. Nothing that I have said, however, should be construed as expressing disagreement with the view of the majority on the general question of principle. That this is not so can be seen from the majority judgments of this Court in the recent case of Mrs. Friedericke Kropach v. Reginald Falkner and another (Civil Appeal No. 28 of 1951).

One more thing requires to be said. In Civil Appeal 67 of 1951, which we heard on the day following our decision to uphold the preliminary objection taken in Civil Appeal 70 of 1951, learned Counsel for the appellant informed us that he had obtained a formal expression of the order against which he was appealing and he asked us for permission to file it. Whilst we appreciated Mr. Nowrojee's industry and his desire to put himself right with the Court we were unable to comply with the request for the reason that the subsequent obtainment of a formal order did not cure the defect that existed when this memorandum of appeal was filed, which was the appeal before us, for it did not disclose on the face of it a matter concerning which, by the municipal law of Kenya, an appeal could lie.

For the above reasons, as we have already indicated the appeals in these two cases have been dismissed with costs.

SIR NEWNHAM WORLEY (Vice-President).-I agree and do not desire to add anything.

R. S. THACKER, J. (Kenya).—I agree and do not wish to add anything.