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Bhanji v Thakore (C.C. 365/1930.) [1930] EACA 96 (1 January 1930)
- Citation
- [1930] EACA 96
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Barth, C.J (Kenya)
- Case number
- C.C. 365/1930.
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Barth, C.J (Kenya)
- Case number
- C.C. 365/1930.
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that when a defendant is granted conditional leave to defend a suit and fails to comply with the condition (in this case, depositing £100 into court), the leave lapses and judgment is entered ex parte. In such circumstances, the plaintiff is only entitled to the fixed costs as prescribed by the rules for specially endorsed plaints, not a full bill of costs. The court further clarified that the failure to fulfill the condition for leave to defend does not remove the case from the summary procedure cost rules. The Registrar's allowance of Sh. 30 for attendance on the application for leave was upheld, and an additional Sh. 34 was allowed for advocate's costs on the application to defend, apart from the attendance cost.
Court disposition
Plaintiff entitled only to fixed costs and specified additional costs; full bill of costs disallowed.
Orders
- Plaintiff awarded fixed costs of Sh. 100 as provided by the rules.
- Plaintiff awarded Sh. 30 for attendance in Chambers on 13-11-30.
- Plaintiff awarded Sh. 34 for advocate's costs on the application to defend.
- Court fees to be allowed.
- Full bill of costs disallowed.
02
Material facts
Parties
Lakhman Bhanji
Plaintiff Counsel: HopleyT. Thakore
DefendantAmounts and remedies
- Fixed Costs Awarded: KES 100
- Attendance in Chambers: KES 30
- Advocate's Costs on Application to Defend: KES 34
03
Procedural history
Posture
Civil Suit / Taxation of Costs
04
Questions and positions
Legal issues
- 01
Whether the plaintiff is entitled to full costs or only fixed costs when the defendant fails to fulfill the condition for leave to defend.
- 02
Whether conditional leave to defend, if unfulfilled, affects the rule for costs in summary cases.
Party arguments
- Applicant
- The advocate for the plaintiff contends that he is entitled to full costs under the circumstances, arguing that the failure of the defendant to fulfill the condition for leave to defend should entitle the plaintiff to a full bill of costs.
- Respondent
- The Registrar maintains that only fixed costs are allowable under the rules for specially endorsed plaints when the defendant fails to provide the required security, and that the case does not warrant a full bill of costs.
05
Court’s reasoning
Legal principles
- 01
Civil Procedure Rules, 1927, Order 33, Rule 8; Rules of Court at page 111 of Vol. 1 of the Subsidiary Legislation.
Where a defendant is granted conditional leave to defend but fails to fulfill the condition, the plaintiff is entitled only to the fixed costs provided by the rules for specially endorsed plaints.
- 02
Order 33, Rules 8, 10 and 5, Civil Procedure Rules, 1927.
Conditional leave to defend, if the condition is unfulfilled, does not take the case out of the rule for costs in summary cases.
06
Ratio, limits and disposition
Ratio decidendi
The court held that when a defendant is granted conditional leave to defend a suit and fails to comply with the condition (in this case, depositing £100 into court), the leave lapses and judgment is entered ex parte. In such circumstances, the plaintiff is only entitled to the fixed costs as prescribed by the rules for specially endorsed plaints, not a full bill of costs. The court further clarified that the failure to fulfill the condition for leave to defend does not remove the case from the summary procedure cost rules. The Registrar's allowance of Sh. 30 for attendance on the application for leave was upheld, and an additional Sh. 34 was allowed for advocate's costs on the application to defend, apart from the attendance cost.
Obiter and limits
- It is reasonable to allow advocates costs on the application to defend apart from the cost of the attendance.
Court disposition
Plaintiff entitled only to fixed costs and specified additional costs; full bill of costs disallowed.
- Plaintiff awarded fixed costs of Sh. 100 as provided by the rules.
- Plaintiff awarded Sh. 30 for attendance in Chambers on 13-11-30.
- Plaintiff awarded Sh. 34 for advocate's costs on the application to defend.
- Court fees to be allowed.
- Full bill of costs disallowed.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
ORIGINAL CIVIL.
Before SIR JACOB BARTH, C. J.
LAKHMAN BHANJI
$\mathbf{v}$ . T. THAKORE.
$\cdot$ C. C. 365/1930.
Civil Procedure Rules, 1927, Order 33, Rule 8-Amount of costs to.be allowed when defendant is granted conditional leave to defend and does not give the security required.
Held: That the Advocate is only entitled to the fixed costs (Sh. 100) provided by the rules in suits on specially endorsed plaints (see. Rules of Court at page 111 of Vol. 1 of the Subsidiary Legislation).
The following order was made by the Registrar:-
Mr. Hopley present for taxation. This is a plaint filed under Order XXXIII, therefore the costs are fixed at Sh.
100. Defendant was not granted leave to defend; he was granted only conditional leave on lodging £100 in Court which he failed to do, therefore Judgment was entered ex parte against him on 5-12-30, Order XXXIII, Rules 8, 10 and 5. I allow fixed costs Sh. 100, also Sh. 30 for attendance in Chambers on the 13-11-30, together with Court fees. I hold this is not a case where advocate is entitled to draw up and tax a full bill of costs and rule accordingly. Advocate contends he is entitled to full costs under the circumstances and asks for a Judge's ruling.
Hopley for applicant.
ORDER.—The Registrar has ruled in this case that as the condition on which leave to defend was not fulfilled the leave lapsed and the plaintiff is only entitled to the fixed costs of Sh. 100 provided by the Rules in suits on specially endorsed summonses.
In my view the Registrar is right in such ruling. In this case there was an application for leave to defend on 13th November, 1930. The Judge's order was that the application to defend was granted subject to the defendant paying £100 into Court by 27th November, 1930. Such sum was not paid. The leave therefore lapsed and the plaintiff obtained judgment on 5th December, 1930.
1 do not think that such a conditional leave to defend if the condition was unfulfilled takes the case out of the rule for costs in summary cases.
The Registrar has allowed Sh. 30 for the attendance on the · application for leave. I think it would be reasonable to allow advocates costs on the application to defend apart from the cost of the attendance. Such costs to be allowed at Sh. 34. $\mathcal{L}_{\mathcal{A}} \in \mathbb{R}^{3}$
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