Mohamed v Lobo (C.A. 5/1935.) [1935] EACA 58 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, P., and WEBB, J. (both of Kenya).

## JAN MOHAMED, Applicant (the Debtor) 11

## T. B. LOBO, Respondent (Petitioning Creditor). C. A. $5/1935$ .

- Bankruptcy—Appeal against Receiving Order—Application for stay of proceedings—Application to Court of Appeal—Bankruptcy Ordinance, 1930, section 11 and 105. - Bankruptcy Rule 97-Court of Appeal Rule 27-E. A. Court of Appeal Order in Council, 1921, Art. 2. - Held (17-5-35).—That the fact that the Supreme Court possesses power to order a stay of proceedings does not deprive the Court of Appeal of the power to entertain and make an order on an application for a stay. - Held Further.-That the language of art. 2 of the Eastern African Court of Appeal Order in Council, 1921, is sufficiently wide to confer jurisdiction to hear and determine the present application.

Schwartze for Applicant.

Figgis, $K. C.,$ for Respondent.

Figgis.—The applicant should in the first instance have directed his application to the Supreme Court, which made the Receiving Order by virtue of section 11 or section 105 of the Bankruptcy Ordinance. Referred to Cropper v. Smith, (24 Ch. D. 305) and In re Artistic Colour Printing Co. (14 Ch. D. 502 at $505).$

Schwartze.—Rule 97, Bankruptcy Rules. Under Rule 27 of the Court of Appeal Rules, applicant may apply to either Court. Sections 11 and 105 of the Bankruptcy Ordinance do not detract from Appeal Court's power to entertain the application.

$\ddagger$

Figgis replied.

RULING.—The Court of Appeal has pending before it an appeal No. 5/1935, Jan Mohamed v. T. B. Lobo. The application under consideration is for a stay of all proceedings consequent upon the making of a Receiving Order against which the appeal has been lodged. Mr. Figgis has argued that we have no jurisdiction to entertain the application on the ground that the power to stay proceedings is vested solely in the Supreme Court sitting in bankruptcy under section 105 which provides: "The court may at any time, for sufficient reason, make an order staying the proceedings under a bankruptcy petition, either altogether or for a limited time, on such terms and subject to such conditions as the court may think just".

In our view the language of Article 2 of the Court of Appeal Order in Council in 1921 is sufficiently wide to confer upon the Court jurisdiction to entertain the application. The relevant words are "the said Court in the exercise of its appellate jurisdiction shall have full power to determine any question and to pass any decree, judgment or order, the determining or the passing of which may appear necessary to the said Court for the purpose of doing justice in the cause or matter before it". And in considering whether this Court has jurisdiction to entertain the application it must be assumed that an injustice would result if a stay were not granted. Rule 5 (4) of the Court of Appeal Rules provides for the hearing by two Judges of any interim order to prevent prejudice to the claims of any party pending the determination of the appeal. The fact that the Supreme Court possesses power to order a stay of proceedings does not in the absence of legislation, take away the jurisdiction in this Court.

The case of Cropper v. Smith (24 Ch. D. p. 305) is an authority for holding that the Supreme Court and the Court of Appeal possess concurrent jurisdiction to entertain an application to stay proceedings and in the absence of a provision similar to Order 58, r. 17 prescribing that the Court of Appeal jurisdiction shall not be exercised until an application has first been made to the Court below, the applicant is in our opinion entitled to come to this Court in the first instance.

Note.-An order of conditional stay of proceedings was made subsequently on 21-5-35.