Attorney General v Abdulla (C.A. 27/1934.) [1935] EACA 48 (1 January 1935)

# COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, P.; ABRAHAMS, C. J. (Tanganyika), and Law, C. J. (Zanzibar).

> ATTORNEY GENERAL, Appellant, (Original Plaintiff-Respondent)

## HABIB ABDULLA, Respondent.

#### (Original Defendant-Appellant).

## C. A. $27/1934$ .

# Non-Native Poll Tax—Summons to show cause—Second appeal— Subject matter less than £50—Laws of Kenya, Cap. 52, sec. 9—Civil Procedure Ordinance, 1930, sec. 74.

Held (18-1-35).—That, if the case were a "Suit" within the meaning of the Civil Procedure Ordinance, the appeal failed, leave to appeal not having been obtained, and that, if it were not a Suit, no second appeal lay.

In May, 1934, the respondent was summoned, under section 9 of the Non-Native Poll Tax Ordinance (Cap. 52)-to-show cause-why he should not be ordered to pay the tax due by him for the year 1933. The Magistrate decided against him but on appeal to the Supreme Court this decision was reversed. The Crown appealed.

Ross for the Respondent: - No appeal lies, the subject matter is Sh. 60 and leave to appeal has not been obtained: C. P. O. sec. 74; Court of Appeal Rules, R. 9. (He referred to Ratanbai Miyaji v. Essufali Gulamhussein (12 K. L. R. 20).)

Lewey for the Appellant.

JUDGMENT.—If this case be regarded as a suit within the meaning of the Civil Procedure Ordinance inasmuch as special leave to appeal has not been obtained as prescribed by section 74 of C. P. O. the appeal must fail. Before the granting of special leave could be considered the appellant would require to comply with the provisions of Rule 9 of the Court of Appeal Rules and this he has not done. If on the other hand the case be not regarded as a "suit" then the appellant is in our opinion in a worse position, for we know of no procedure nor has counsel been able to indicate any procedure according to which a second appeal lies. We purposely refrain from definitely deciding the point whether the case is a "suit" or not so as to leave the point open for argument and decision in any future case that may arise. The appeal is dismissed with costs.