Warsama and Mohamed v. Ibrahim Civ. App. 90-A-70; 19/1/71; Kwikima Ag. J.

 

Warsama and Mohamed v. Ibrahim Civ. App. 90-A-70; 19/1/71; Kwikima Ag. J.

            The appellant obtained an order from the Court of the Resident Magistrate, Arusha, for the vacant possession of their premises. They duly commenced execution and got the Court Broker to extract Shs. 1. 972/- from the occupant who happened to be not the tenant but a third a party, the respondent. He objected to the execution. The Resident Magistrate sustained the objection, declared the respondent a statutory tenant and ordered that he money be refunded to him. The appellants appealed against this order. The respondent argued as preliminary issues that (a) the objection was made under Order 20 r. 57 and any order pursuant thereto is not listed as appellable under Order 40 r. 1 (1); (b) the memorandum had been filed without a copy of the order following the objection and therefore this appeal could not be heard. (Relying on Kotak Ltd. v. Kooverji [1967] E.A. 348).

            Held: (1) The first point of the respondent’s argument represented the correct position in law and no legal argument against it would serve any purpose. This is enough to dispose of the appeal. (2) [Distinguishing Kotak Ltd. v. Kooverji [1967] EA 348] In that case, Hamlyn J. based his decision on the earlier case of Munishiran and Co. v. Star soda Water Factory (1934) 16 K. L. R. 50 in which it was held: “that Or. 39 r. 1 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from, and that where an appellant has failed to comply with this provision, the appeal is not properly before the Court and must be dismissed.” In this case, however, the learned Resident Magistrate incorporated the order in his ruling, the bottom paragraph of which reads: “In the whole therefore, I rule that the objector is a statutory tenant of the suit premises and the decree passed against the judgment- debtor is not enforceable against him and that the payment of Shs. 1,972/- paid to the Court Broker as a result of the attachment levied by him should be refunded to the objector.” No separate order was drawn thereafter and in my view there was no need to draw any further order. The above quoted was sufficiently clear as to constitute such order as is required by law. Accordingly the second leg of Mr. Kapoor’s objection cannot be material to these cases, although he succeeds on his first leg. The ruling was an order as well and did meet the requirements of Or. 40 r. 2 (3) Appeal dismissed.