Miyaji v Gulamhusein (C.A. 25/1929.) [1929] EACA 20 (1 January 1929)

COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), DOORLY, J. (Zanzibar), and Gower, J. (Tanganyika).

RATANBAI MIYAJI for herself and on behalf of others (Appellants) (Original Objectors)

$\mathbf{1}$

ESSUFALI GULAMHUSEIN (Respondent) (Original Plaintiff). C. A. $25/1929$ .

The Kenya Civil Procedure Rules, 1927—leave to appeal.

Held:—That an order made on objection proceedings taken under Order 36, Rule 8, is not a decree as defined in Section 2 (4) of the Civil Procedure Ordinance (No. 3 of 1924), nor is it included in Order 40, Rule 1. an appeal would lie if leave were given.

Christic and Patel for appellants.

Budhdeo for respondent.

SIR JACOB BARTH, C. J.-In this appeal a preliminary point has been raised, i.e., that the appeal does not lie without leave and that no leave has been obtained. The appeal is from an order in objection proceedings on an attachment before judgment. These proceedings were brought by the wife of the defendant in this suit and her two infant sons claiming that the property attached had been transferred to them. The proceedings were abortive and the application to set aside the attachment was dismissed with costs by the Judge of the Supreme Court of Kenya dealing with the matter. The objection proceedings were presumably had under O. 36 R.

8.

Order 40 R. 1 does not include orders made under O. 36 R. 8 in the list of appealable orders, neither is an order under O. 19 The rules of $0.19$ relevant to objection R. $58$ appealable. proceedings on an attachment in execution of a decree would in my view apply to objection proceedings on an attachment before judgment.

O. 40 R. 1 (2) provides that no appeal shall lie from any order other than those set out in O. 40 R. 1 (1) save with the leave of the Court making the order or of the Court to which an appeal would lie if leave were given.

O. 19 R. 60 appears to give the remedy for an order in objection proceedings, i.e., a suit.

It has been argued by the appellant's advocate that the order appealed from is a decree. I am clearly of opinion that the facts do not bring the order within the definition of a decree in section 2 (4) of the Civil Procedure Ordinance. The objection proceedings do not constitute a suit, that is to be deduced from O. 19 itself. The parties to the objection proceedings are in this case not the parties to the suit and the matter decided is not a matter in controversy in the suit. The proceedings are a speedy and summary remedy which however does not deprive the claimant of his remedy by suit. The order therefore does not come within the definition of a decree.

In my view the appeal should be dismissed on the ground that it does not lie, with costs.

Doorly, J.-I agree.

GOWER, J.-I agree.