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Yusuf v Kioko (Civil Case No. 1072 of 1951) [1951] EACA 332 (1 January 1951)
- Citation
- [1951] EACA 332
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Connell J
- Case number
- Civil Case No. 1072 of 1951
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Connell J
- Case number
- Civil Case No. 1072 of 1951
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that Order 9, rule 19 of the Civil Procedure Rules is mandatory and leaves no discretion to the court when the plaintiff fails to appear either in person or by recognized agent. The plaintiff's written request for adjournment and the submission of a medical certificate were insufficient to satisfy the requirements of appearance under the rules. The court further found that section 97 of the Civil Procedure Ordinance does not empower the court to disregard the explicit mandatory language of Order 9, rule 19. Accordingly, the suit was dismissed for non-appearance of the plaintiff.
Court disposition
suit dismissed for non-appearance of plaintiff
Orders
- The suit is dismissed under Order 9, rule 19 of the Civil Procedure Rules.
02
Material facts
Parties
Sherief Yusuf
PlaintiffPhillip Kioko
Defendant Counsel: Morgan03
Procedural history
Posture
Civil Suit / Judgment
04
Questions and positions
Legal issues
- 01
Whether the suit should be dismissed when the plaintiff fails to appear in person or by recognized agent.
- 02
Whether the court has discretion to adjourn the case in light of the plaintiff's absence and request for adjournment.
- 03
Whether section 97 of the Civil Procedure Ordinance overrides the mandatory provisions of Order 9, rule 19.
Party arguments
- Respondent
- The defendant, through his advocate Mr. Morgan, argued that under Order 9, rule 19 of the Civil Procedure Rules, the absence of the plaintiff or his recognized agent mandates dismissal of the suit. He submitted that the rule is clear and does not allow for discretion, and therefore judgment should be entered in favor of the defendant.
05
Court’s reasoning
Legal principles
- 01
Order 9, rule 19 Civil Procedure Rules
Order 9, rule 19 of the Civil Procedure Rules mandates dismissal of a suit where the plaintiff does not appear in person or by recognized agent.
- 02
Order 3 Civil Procedure Rules
Order 3 requires appearance by a recognized agent if not in person.
- 03
Section 97 Civil Procedure Ordinance
Section 97 of the Civil Procedure Ordinance allows the court to make orders necessary for the ends of justice, but does not override mandatory procedural rules.
06
Ratio, limits and disposition
Ratio decidendi
The court held that Order 9, rule 19 of the Civil Procedure Rules is mandatory and leaves no discretion to the court when the plaintiff fails to appear either in person or by recognized agent. The plaintiff's written request for adjournment and the submission of a medical certificate were insufficient to satisfy the requirements of appearance under the rules. The court further found that section 97 of the Civil Procedure Ordinance does not empower the court to disregard the explicit mandatory language of Order 9, rule 19. Accordingly, the suit was dismissed for non-appearance of the plaintiff.
Obiter and limits
- Order 15, rule 1, which previously allowed the court to grant adjournments, is not repeated in the new Rules of 1948.
- A medical certificate was submitted for a person not matching the plaintiff's name, further undermining the request for adjournment.
Court disposition
suit dismissed for non-appearance of plaintiff
- The suit is dismissed under Order 9, rule 19 of the Civil Procedure Rules.
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 CONNELL. J.
SHERIEF YUSUF, Plaintiff
v.
PHILLIP KIOKO, Defendant
Civil Case No. 1072 of 1951
Appearance by defendant—No appearance by plaintiff when suit called for hearing—Civil Procedure Rules Order 9, Rule 19. Order 3—Section 97 Civil Procedure Ordinance.
The defendant appeared represented by an advocate; the plaintiff did not appear though he wrote to Court asking for an adjournment.
Held (13-12-51).—As the plaintiff had not appeared either in person or by recognized agent the Court had no choice under O. 9, rule 19 except to dismiss the suit.
Plaintiff absent unrepresented.
Morgan for defendant.
ORDER.—On 25th October, 1951, the plaintiff in person filed a hearing notice for to-day in this Court.
On 24th November, Mr. Morgan for the defendant requested witness summonses to be issued for attendance of witnesses at Machakos. On 1st December the summonses were issued.
On 3rd December, 1951, the plaintiff telegraphed this Court that he was in hospital and asked to stop the case: on 5th December, 1951, the Deputy Registrar wrote to the Medical Officer, Mombasa, that if plaintiff was too ill a medical certificate should be sent. A medical certificate was set on 6th December stating Philip Kioko Sherief (which was not the plaintiff's name) was sick.
The plaintiff has not appeared. Mr. Morgan submits he is entitled to judgment under Order 9, rule 19.
It seems to me that such rule is mandatory; the plaintiff has not appeared either in person or through a recognized agent under Order 3. Moreover, Order 15, rule 1, allowing the Court to grant an adjournment is not repeated in the new Rules of 1948. Should I then apply section 97 of the Civil Code, which allows me to make "such orders as may be necessary for the ends of justice"?
I do not see how in the face of Order 9, rule 19, I am enabled to say that where a party is in clear breach of that provision I am entitled to say that he has not in fact acted in breach of that rule.
The suit is dismissed.
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