[1942] EACA 33
The court held that the Magistrate's decision was a ruling and not an order, as it did not direct any action or carry the implications of an order. Appeals are only permissible against final judgments or orders, not against interlocutory rulings made during the course of proceedings. The granting of leave to appeal...
Source-derived case information.
- Citation
- [1942] EACA 33
- Parties
- Appellant: Dipchand Panachand; Respondent: The Kenya General Stores
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Civil Appeal No. 31 of 1941
- Procedural Posture
- Civil Appeal / Interlocutory Appeal Prior to Final Judgment
- Outcome
- appeal dismissed as premature
- Judges
- Thacker J
- Legal Topics
- Interlocutory Appeals, Rulings Vs Orders, Leave to Appeal, Premature Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dipchand Panachand
Appellant
The Kenya General Stores
Respondent
Procedural Posture
Civil Appeal / Interlocutory Appeal Prior to Final Judgment
Legal Issues
- 1 Whether an appeal lies against a ruling on a point of law made during proceedings before final judgment.
- 2 Whether the Magistrate's decision constituted an appealable order or a mere ruling.
- 3 Whether leave to appeal was properly granted by the Magistrate.
Ratio Decidendi
The court held that the Magistrate's decision was a ruling and not an order, as it did not direct any action or carry the implications of an order. Appeals are only permissible against final judgments or orders, not against interlocutory rulings made during the course of proceedings. The granting of leave to appeal by the Magistrate was improper, as there was no appealable order. Consequently, the appeal was premature and could not be entertained until after final judgment, at which point the appellant would be at liberty to raise the relevant legal issues.
Court Disposition
appeal dismissed as premature
Orders
- The appeal is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
## APPELLATE CIVIL
## BEFORE THACKER. J.
## DIPCHAND PANACHAND, Appellant (Original 2nd Defendant)
$\mathbf{v}$ .
## THE KENYA GENERAL STORES, Respondent (Original Plaintiff) Civil Appeal No. 31 of 1941
Civil action—Submission during proceedings upon a point of law—Ruling by Magistrate during proceedings and before judgment—Appeal from ruling.
In a civil action before the Resident Magistrate, Mombasa, at the close of the plaintiff's case a submission was made by the advocate for the second defendant upon a point of law. The Magistrate ruled against the submission by the defendant and held that there was a case for this defendant to answer. Upon application, the Magistrate gave leave to the defendant to appeal against this ruling on a point of law.
Held (3-2-42).—That there can be no appeal during the course of proceedings against a mere ruling by the Magistrate upon a point of law. Such a ruling does not involve the making of an order by the Court and is merely a ruling and nothing more. A ruling on a point of law can only be the subject of an appeal after final judgment has been given, and as<br>part of the appeal against such final judgment. Leave to appeal should not have been granted by the Magistrate and the appeal was premature.
Inamdar and D. D. Doshi for the Appellant.
C. A. Patel for the Respondent.
JUDGMENT.—This is an appeal from a ruling made during the course of an action by the learned Magistrate, which action is still in course of hearing by that Magistrate. It is admitted that no judgment by the Court below has yet been delivered.
At the close of the plaintiff's case the advocate for defendant No. 2 submitted that there was no case to answer, and gave certain reasons for his submission. The Magistrate considered that submission and also that of the plaintiff in reply and then ruled that there was a case for defendant No. 2 to answer
The ruling is headed "Ruling" and it is referred to in the appellant's memo of appeal as a ruling.
However, in spite of all this Mr. Inamdar and presumably Mr. Doshi also for the appellant chose to describe it as an order and do so somewhat persistently. If it is an order, I ask myself, an order to do what? I have not the least idea nor has any been suggested. This was, of course, merely a ruling. It was in no sense an order and it contains no order-nor does it carry the implications or consequences of an order. I have never before heard the suggestion that a ruling by the Court that there is a case to answer is in any sense an order.
No appeal, of course, lies against this ruling, at the present stage, although if the defendant No. 2 is unsuccessful in the final result of the action which is now going on he may be at liberty to raise the questions of law raised in his memo of appeal, as well as any others which it is competent or proper for him to raise, and this Court would then be under a duty to consider them, and to adjudicate upon them.
It is no justification whatever for this appeal that the learned Magistrate gave leave to appeal because he should not have been asked for such leave, nor ought he to have granted it when he was asked. $\mathcal{E}^{\pm}$
The appeal is premature and is dismissed with costs.