Mohamerbhai v Hon. Commissioner of Lands for the Colony and Protectorate of Kenya (C.C. No: 14/1936 (Mombasa)) [1936] EACA 148 (1 January 1936)

## ORIGINAL CIVIL

#### Before LUCIE-SMITH. J.

# MULLA TAIBALI MOHAMERBHAI AS IMAM OF BOHRA COMMUNITY OF LAMU, Plaintiff

ν.

# THE HON. THE COMMISSIONER OF LANDS FOR THE COLONY AND PROTECTORATE OF KENYA, Defendant

## C. C. No. 14/1936 (Mombasa)

Petition of Right—Procedure—Demurrer—Cap. 17, Laws of Kenya— Civil Procedure Ordinance, 1924—Rules of Court.

Held (18-5-36).—That in the case of a claim in the nature of a petition of right against the Government of Kenya or any servant thereof, the Attorney General cannot enter a demurrer.

Plaintiff as trustee of the Bohra Community of Lamu instituted a plaint against the defendant claiming (1) a declaration that the plaintiff, as such trustee, was entitled to the ownership of certain lands in Kenya which were alleged to have been unlawfully entered and a door removed therefrom by a district commissioner, as servant of the defendant, and (2) Sh. 200 (being the value of the said door) damages and further and other relief and costs.

The said plaint was duly endorsed with the fiat of the Governor under Laws of Kenya, Cap. 17, section 5.

The Attorney General on behalf of the Government of the Colony and Protectorate of Kenya entered a demurrer to the said plaint. The plaintiff, by motion applied for an order that the said demurrer be struck out and that the defendant be ordered to file a defence and the costs of the said motion.

Ross for the plaintiff.—The right to demur is non-existant in Kenya. Once the fiat of the Governor has been obtained the case proceeds as an ordinary civil action, Laws of Kenya, Cap. 17, sections 3, 4, 5 and 8. The civil procedure in this Colony does not know demurrer.

Dennison, Crown Counsel, for the defendant.—The Attorney General's right to enter a demurrer has been recognized in this Colony. Rainey v. The General Manager, Uganda Railway (9 E. A. L. R. 58), at $pp.$ 60 and 61.

Ross in reply.—The case quoted is not material.

RULING.—It is not in dispute that the English procedure in Petitions of Right recognizes demurrer and, had we no legislation of our own on the subject, such procedure would be correct in this Colony. We have, however, legislation in Cap. 17 of our laws which lays down the procedure to be followed in Petitions of Right. Section 3 of the Ordinance lays down that claims against Government shall be instituted by suit and section 4, that the suit shall be commenced by the filing of a plaint in the Supreme Court. Should the plaint

receive the Governor's *fiat* then the suit shall be prosecuted in the Supreme Court (section 5). Section 8 lays down the procedure to be adopted in the event of the suit being prosecuted in the Supreme Court. That section lays down, inter alia, that the practice and course of<br>procedure of the Supreme Court shall apply to suits and proceedings by or against the Government.

The practice and procedure now obtaining in the Supreme Court is governed by our Civil Procedure Ordinance and the Rules of Court made thereunder. The course of an action is plaint, entry of appearance, defence, etc. Our procedure does not know demurrer.

For the above reasons, I am of opinion that Mr. Ross's contention must prevail and that the first part of the motion now before the Court must be allowed with costs. It is further ordered that the defendant herein be at liberty to enter an appearance within ten days from to-day and to file a defence within ten days of his so entering an appearance. Order accordingly.