Kiroga v Maguka and Another (Civil Case No. 143 of 1940. O.S.) [1940] EACA 44 (1 January 1940)

## ORIGINAL CIVIL

## Before BARTLEY, J.

# IN THE MATTER OF THE CIVIL PROCEDURE RULES, 1927

and.

IN THE MATTER of an issue relating to the attachment of *shambas* (hereinafter described) attached by (1) Wallace wa Maguka, (2) Kagwi wa Gathii in Supreme Court Civil Case No. 66 of 1939 alleged to be the property of Mwangi wa Kamau—the judgment debtor.

## Between

# KAMAU WA KIROGA, Plaintiff (Objector)

#### and

# (1) WALLACE WA MAGUKA, (2) KAGWI WA GATHII. Defendants (Judgment Creditors)

## Civil Case No. 143 of 1940. O. S.

Execution proceedings—Objection to attachment of immovable property— Institution of proceedings by objector to establish claim-Court in which proceedings to be instituted—Order XIX, rule 58, Civil Procedure Rules, 1927.

An objector to attachment proceedings on five *shombas* filed proceedings to establish his claim in the Supreme Court. The value of the attached shambas was Sh. 900. The defendant in the objection proceedings submitted that as the value of the shambas was Sh. 900 only the summons was wrongly filed in the Supreme Court and should have been filed in a subordinate court in accordance with the provisions of the proviso to Order XIX, rule 58, of the Civil Procedure Rules, 1927.

Held (3-2-41).—(1) That whatever may be the effect of the proviso to Order XIX, rule 58, it cannot override the provisions of section 11 of the Civil Procedure Ordinance that any suit may be instituted in the Supreme Court which could have been commenced in a subordinate court.

(2) That a subordinate court has jurisdiction to hear and decide an objection to the attachment of immovable property.

### Madan for the Plaintiff (Objector).

# Dave for the Defendants (Judgment Creditors).

ORDER.-In Civil Case No. 66 of 1939 the plaintiffs Wallace wa Maguka and Kagwi wa Gathii having obtained judgment for Sh. 1,680 and costs against the defendant Mwangi wa Kamau, proceeded to execute their decree by attaching five shambas which they alleged belonged to the defendant Kamau wa Kiroga. the plaintiff (objector) in this proceeding gave notice in writing to this Court of his objection to the attachment claiming the shambas as his property.

The procedure set out in Order 19, rules 55 to 59, was duly followed and the plaintiff (objector) finally filed an originating summons in this Court in accordance with the provisions of Order 19, rule 59, citing the judgment creditors in Civil Case No. 66 of 1939 as defendants. The defendants filed a defence to the originating summons in which it was alleged inter alia "that the objection proceedings lodged by the plaintiff by way of originating summons are bad in law".

That preliminary point only has been argued before me. The advocate for the objector, however, confined his argument to the effect of the proviso to Order 19, rule 58, which reads: $-$

"Provided that the court in which the proceedings contemplated by this rule shall be instituted shall be the court of lowest pecuniary jurisdiction competent to try the issue. The court which shall so try the said proceedings shall certify its findings both as to the subject matter of the proceedings and as to the costs awarded therein, within ten days of the date thereof to the court from which the execution issued, and the latter court shall make the necessary order thereon without further proceedings."

The learned advocate submitted that as the value of the attached shambas was Sh. 900 only, this being the value set out in the affidavit filed by the plaintiff (objector), the summons was wrongly filed in this Court. He submitted that it should have been filed in a subordinate court in accordance with the provisions of the proviso to Rule 58 set out above.

That submission in my opinion fails. Section 11 of the Civil Procedure Ordinance provides "that any suit may be instituted in the Supreme Court which could have been commenced in a subordinate court" subject to certain provisions as to the amount of costs which may be awarded. Section 83 of the Ordinance provides for the making of rules and lays down that the Rules Committee "shall have power to make rules not inconsistent with the provisions of this Ordinance". The proviso to Order 19, rule 58, if read as preventing a suit being filed in the Supreme Court, would be inconsistent with the Ordinance.

Whatever may be the effect of the proviso to Order 19, rule 58, I am of the opinion that it cannot override the provisions of section 11 of the Ordinance.

Both advocates agreed that the proper court to decide the objection was the first class subordinate court at Fort Hall, as all the witnesses reside in Fort Hall District, and Mr. Madan for the objector stated that he filed the summons in this Court only because he had a doubt as to whether that Court had jurisdiction to deal with the objection as the question in issue was a claim to immovable property.

In my opinion there can be no doubt that a subordinate court has jurisdiction to hear and decide an objection to the attachment of immovable property just as a subordinate court has power to attach immovable property.

For the reason given I order under section 18 of Civil Procedure Ordinance that this suit be transferred for hearing to the first class subordinate court at Fort Hall and I direct the Subordinate Judge of that Court to certify his finding both as to the subject matter of the proceedings and as to the costs awarded thereon within ten days of the date thereof to this Court. Each party to bear his own costs of the application in this Court.