[1946] EACA 4

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

### SHIVABHAI UMEDBHAI PATEL, Appellant (Original Defendant)

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# KESHAVLAL BHAVANISHANKER VYAS, Respondent (Original Plaintiff) Civil Appeal No. 16 of 1945

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

Execution of transferred decree—Cap. 16 Laws of Kenya—Limitation—Kenya Limitation Ordinance 1934, S. 3–Indian Limitation Act 1877, Art. 179.

The facts appear fully from the judgments.

Held (25-2-46).—(1) A decree of the High Court of Uganda is not a "foreign judgment".

(2) The Uganda law of limitation applies to the execution in Kenya of a Uganda decree

(3) Semble, the proper period of limitation applicable in Kenya for applications for execution of decrees is twelve years under the Kenya Limitation Ordinance S. 3 and not six years under the Indian Limitation Act Art. 179.

(4) Semble further, Ambalal Chhotabhai Patel v. The Highlands Produce Mill, 17 K. L. R. 100 was wrongly decided.

Appeal dismissed.

Cases referred to: Tincowrie v. Debendro Nath 17 Calcutta 491; Nabibhai Vazirbhai v. Dayabhai Amalakh 40 Bombay 504; Ambalal Chhotabhai Patel v. The Highlands Produce Mill 17 K. L. R. 100. </u

#### $C$ , A. Patel for the Appellant.

#### Nazareth for the Respondent.

SIR JOSEPH SHERIDAN, C. J.—In this appeal where the question is whether the. Uganda law of limitation or the Kenya law of limitation applies, I am satisfied that the learned Judge whose order is appealed from correctly decided the issue in holding that the former law applies. The case concerns the transfer for execution to the Supreme Court Mombasa of a decree passed by the High Court of Uganda. This was in accordance with the reciprocal arrangements existing between Uganda and Kenya by virtue of section 6 of the Judgments Extension Ordinance, Chapter 16 of the Laws of Kenya. The learned Judge referred to authority for his decision including the case of Tincowrie v. Debendro Nath 17 Calc. 491 in which is was held that the law of limitation applicable to the execution of a decree depends upon the Court by which it was passed and not upon the Court executing it.

The case for the appellant was based on the argument that the decree in question was the decree of a foreign Court and the case of Nabibhai Vazirbhai v. Dayabhai Amalakh 40 Bom. 504 was referred to in support of the argument. But in the present case there is in my opinion no question of the decree being that of a foreign Court. By reason of the legislation which I have referred to, there is to quote the words of Batchelor J. in Nabibhai's case "outstanding an order of a competent Court binding the parties and directing the execution of the decree". The duty of the Kenya Court in the circumstances of the case is limited to executing the decree transferred to it in the manner in which it would execute its own decrees. This being my view it is unnecessary to decide the second point raised by Mr. Nazareth namely whether even if the Kenya law of limitation governed the case, that law is not the same as the Uganda law. He contended that section 3 of the Limitation Ordinance prescribes the period of limitation as 12 years in the case of the kind under consideration. As against his contention Mr. C. A. Patel referred to the case of Patel v. The Highlands Produce Mill

17 K. L. R. 100. I must say that Mr. Nazareth's argument on this second point impressed me and I have some difficulty in understanding why in *Patel's case* the term "judgment" in section 3 of the Limitation Ordinance should not have been construed as meaning decree as it is in the Bankruptcy Ordinance 1930. It is true that "judgment" is defined in the Civil Procedure Code as meaning "the statement given by the Judge of the grounds of a decree or order" but as it is not reasonably possible to read "any sum of money secured by any ... judgment" in section 3 as meaning "any sum of money secured by ... the statement given by the Judge of the grounds of a decree or order" it seems to me that "judgment" in the section must be read in the English sense, the sense in which the term is used in section 8 of the Real Property Limitation Act 1874 which section 3 follows almost verbatim. I would dismiss the appeal with costs.

SIR NORMAN WHITLEY, C. J.—1 agree.

SIR G. GRAHAM PAUL, C. J.—This appeal raises two very short points of law. The respondent obtained a decree against the appellant in the High Court of Uganda on 2nd July, 1935. Under the Judgments Extension Ordinance of Kenya (Cap. 16 of the Laws of Kenya) an application was made by the respondent in the Supreme Court of Kenya for the execution of the decree in Kenya. It was objected by the appellant that the application was barred by limitation on the ground that it was the Kenya limitation law (period of 6 years) and not the Uganda limitation law (period of 12 years) that applied. The first point of law is whether the appellant was right in his contention.

The whole basis of the appellant's case is that the Uganda decree is a "foreign judgment". If he is right in that contention there can be no doubt on the authorities that it is the *lex fori*—i.e. the Kenya law of limitation—that applies. The law on this point is concisely stated in Dicey's *Conflict of Laws* (4th Ed. p. 799): $-$

"Hence any rule limiting the time within which any action may be brought, any *limitation* in the strict sense of that word, is a matter of procedure grounded wholly by the *lex fori*".

But in my opinion the decree of the Uganda Court, by reason of the domestic inter-colonial arrangement embodied in the Judgment Extensions Ordinances of Kenya and Uganda, is clearly not a "foreign judgment".

Upon this point it is necessary first to consider the definition of "foreign judgment" contained in the Civil Procedure Ordinance of Kenya (No. 3 of 1934) section 8, which is as follows:-

"'foreign judgment' means the judgment of a foreign Court" and section 2 (7) defines "foreign Court" as

"a Court situate beyond the limits of the Colony which has no authority in the Colony".

Obviously the Uganda High Court is "situated beyond the limits of the Colony" but is it *ad hoc* a Court "which has no authority in the Colony"?

Section 6 of the Judgments Extension Ordinance of Kenya (Cap. 16 of 1926) contains the following provision relating to decrees inter alia of the Uganda High Court:-

"where it is desired that such decree shall be executed upon the person or property of the judgment debtor in the Colony (of Kenya) such decree may be transferred to the Supreme Court or to any of the courts subordinate thereto for execution, and the provisions of the (Kenya Code of Civil Procedure) for the transfer and execution of decrees shall apply in the same manner as if such decree had been obtained or entered up in one court and transferred for execution to another court within the jurisdiction of the Supreme Court (of Kenya) and all proceedings shall be taken as if the decree

٠.

had been a decree originally obtained in the Supreme Court (of Kenya) or a court subordinate thereto ...'

That provision, it seems to me, has the effect of making the Uganda decree not a "foreign judgment" within the definitions quoted, for the reason that by this provision the Uganda High Court becomes a Court which has authority ad hoc within the Colony of Kenya. This is clear from Order XIX Rule 25 of the Kenya Civil Procedure Rules which by section 6 of Cap. 16 is applied to a decree transferred from the High Court of Uganda for execution in Kenya, Rule 25 is in the following terms: —

"Any order of the Court by which a decree is passed $\cdot$ . in relation to the execution of such decree, shall be binding upon the Court to which the decree is sent for execution".

That rule quite definitely gives the Court by which a decree is passed—in this case the High Court of Uganda—authority in the Colony of Kenya, and that at once takes the decree in question out of the category of "foreign judgment" as defined.

That being so, it follows that the general law laid down in Dicey's *Conflict* of Laws in regard to "foreign judgments" has no application whatever in this case. It is clear that the policy and expressed intention of the Judgments Extension Ordinances of Kenya, Zanzibar, Uganda, Nyasaland and Tanganyika was to effect what may be called an East African domestic arrangement whereby His Majesty's Courts of these countries will act as the executing machinery for each other's decrees at the same time giving—as we have seen from the application of Order XIX Rule 25-a species of *ad hoc* extra-territorial jurisdiction to the Court which passes the decree in the country in which it is desired by that Court that its decree should be executed.

Under Rule 25 the Uganda Court's orders in relation to the execution of the decree in Kenya are to be binding upon the Supreme Court of Kenya. It follows from that the law to be applied as regards the execution of the decree must be the law of Uganda as the High Court of Uganda has no authority to apply any law other than the law of Uganda plus, or subject to, the Kenya Rules of Civil Procedure which by section 6 of the Judgments Extension Ordinance are specifically applied to such cases.

From the foregoing reasoning it follows that it is the Uganda law of limitation that applies to the application for execution in question, and the learned Judge of that Court below was therefore right in the result at which he arrived. In my opinion the appeal must for that reason alone be dismissed.

The second point of law in this appeal arose upon the considerable argument which was addressed to us by Counsel for the respondent to the effect that even if the Kenya law of limitation applied the result would be the same as the period of limitation for applications for execution of decrees is governed by section 3 of the Kenya Limitation Ordinance 1934 (12 years) and not by Article 179 of the Indian Limitation Act (6 years). The contrary was decided by the Supreme Court of Kenya (Webb, J.) in the case of Patel v. The Highland Produce Mill (17 Kenya Law Reports, p. 100) but Counsel for the respondent argued that that decision was not binding upon this Court and that the case was wrongly decided. Upon the view I have taken of the case for the appellant it is unnecessary, and would be merely obiter dicta for this Court in this appeal to hold that Patel's case was wrongly decided, but I may say that I find it impossible to accept as correct the decision in that case, and in my opinion if the Kenya law of limitation were to be applied in this case the period of limitation would be twelve years under S. 3 of the Kenya Limitation Ordinance, 1934.

I would accordingly dismiss the appeal with costs.