Ngumi v Muthui (Civil Appeal No. 16 of 1953) [1955] EACA 43 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill (President), Sir Enoch Jenkins (Acting Vice-President) and BRIGGS, Justice of Appeal

PATRICK NJEROGE NGUMI, Appellant (Original Defendant)

## LIVINGSTONE WANJII MUTHUI, Respondent (Original Plaintiff)

## Civil Appeal No. 16 of 1953

(Appeal from the decision of H. M. Supreme Court of Kenya, Mayers, J.)

Security-Security not furnished within due time-Civil Procedure (Revised)

Rules, Order XXV, rule 2 (1) and (2), and Order XLIV, rule 1—Whether

application to reinstate suit under Order XXV, rule 2 aforesaid governed by procedure for a review of judgment-Whether lack of funds is "sufficient cause" for Order XXV, rule 2 aforesaid.

When the case came on for hearing in the Supreme Court, the plaintiff was absent. The case was dismissed, a stay being given to enable an application to be made to reinstate it.

That application was made and allowed on terms, one of which was that the plaintiff should furnish security in a certain sum by a certain date. With this term, due to lack of funds, the plaintiff was unable to comply.

Later, upon the defendant's motion, Harley, J., dismissed the action under Order XXV, rule 2 (1) aforesaid.

The plaintiff then successfully applied to Mayers, J., to reinstate the action under Order XXV, rule 2 (2) aforesaid, and from this decision the defendant appealed, his substantial grounds of appeal being (1) that an application under Order XXV, rule 2.(2), is in all cases an application for a review and therefore subject to the provisions of Order XLIV of the said Rules so that the application should have been made to the Judge who dismissed the action, and, (2) that there was no evidence on which it could be found that the plaintiff was prevented by any sufficient cause from furnishing the security as required.

Order XXV, rule 2 aforesaid reads: -

"(1) In the event of such security not being furnished within the time fixed, the court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.

(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside, and, if it is proved to the satisfaction of the court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the court shall set aside the dismissal upon such terms as to security, costs, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

Order XLIV, rule 1, provides: $\rightarrow$

"(1) Any person considering himself aggrieved...may apply for a review of judgment to the court which passed the decree or made the order."

Held (26-9-53).-(1) An application to reinstate a case under Order XXV, rule 2 (2) aforesaid is not governed by the procedure applied by Order XLIV of the said Rules for a review of a judgment.

(2) Merc lack of funds is not "sufficient cause" for the purpose of Order XXV. rule $2(2)$ aforesaid.

Appeal allowed. Order of Mayers, J., set aside, save in so far as it ordered the plaintiff to pay the defendant's costs of the application, and order of Harley, J., to stand. Case referred to: Ramgopal Sahu and another v. Barsati Singh and others 1908/9 36 I. A. 27.

Long for appellant. Holland for respondent.

[Editorial Note.—In Shabir Din v. Ram Parkash Anand post, page 48, the court gave its decision on the question of "sufficient cause" in Order IX, rule 20 of the aforesaid rules, and expressed an *obiter* opinion on the same words appearing in Order IX, rule 24 of the said rules.]

BRIGGS, J. A.—This appeal is the latest and perhaps the last stage in litigation which has been a series of unfortunate accidents. The plaintiff commenced his action in 1951 and in October, 1951, obtained an interim injunction ex parte. In December the injunction was renewed on certain terms, and in the same month a defence was filed which raised substantial issues. In February, 1952, an order was made which fixed the venue as Nakuru. On 19th March, 1952, the case came on for hearing at Nakuru. The plaintiff was himself absent, but was represented by counsel. Counsel finding himself unable to proceed with the suit, since he could not call the necessary evidence, the action was dismissed by Rudd, J., but a stay was given for such time as would enable application to be made to reinstate the suit. On 10th April, 1953, that application, having been duly made, was heard and allowed on terms. One of the terms was that Sh. 1,000 security should be furnished by the plaintiff by 25th April, and the costs thrown away should be paid. Counsel were quite unable to inform this court whether a formal order was extracted or not, but we have before us in the record the learned Judge's note of his order; the relevant parts are:-

"I set aside the decree and reinstate the case on the following terms: Plaintiff to pay all the costs of the day in respect of 19th March, 1952, and all costs thrown away or occasioned by the passing of the decree and the setting aside of it including the costs of this motion and also to lodge Sh. 1,000 in court as security for costs of the action within 15 days."

Counsel for the plaintiff tendered to the Registrar just before time ran out a bond for Sh. 1,000 in purported compliance with the order for security referred. to above. The learned Registrar refused to accept this. His reasons do not appear on the record, but whatever they may have been it is quite clear that he was. right, in that the order made by the learned Judge was clearly not an order for "security in the sum of Sh. 1,000 to the satisfaction of the Registrar", as is: sometimes made, but was an order for lodgment of Sh. 1,000 cash. The reason for offering the bond instead of lodging cash as security is set out with completecandour in a subsequent affidavit of the plaintiff and was simply that he could not then raise the necessary money. There is no reason to suppose that either heor his counsel ever thought that the bond would be accepted by the Registrar, or would be a sufficient compliance with the learned Judge's order for security. On 28th April, 1952, the plaintiff, having succeeded in raising some money, lodged Sh. 1,000 in court, but this lodgment was, of course, out of time and was therefore not a sufficient compliance with the terms of the learned Judge's. order. On 17th December, 1952, the defendant moved for dismissal of the action on the grounds that the terms of Rudd, J.'s order had not been complied with and Harley, J., dismissed the action under Order XXV, rule 2 (1). The plaintiff was duly represented.

It seems, on the wording of Order XXV, rule 2 (1), that on this application Harley, J., had no discretionary powers and was obliged by law to make the order which he did. Immediately thereafter the plaintiff applied to set aside that order under Order XXV, rule 2 (2), and the application was allowed by Mayers, J., on terms on 14th January, 1953. From that order the defendant's appeals.

There were two substantial grounds of appeal: first, that an application under Order XXV, rule 2 $(2)$ , is in all cases an application for review, and is therefore subject to the provisions of Order XLIV, and in particular the provision of Order XLIV, rule 2, that it "shall be made only to the Judge who passed the decree or made the order sought to be reviewed". There appears to have been no reason why this application should not have been made to Harley, J., and it was contended that, that being so, there was no jurisdiction in Mayers, J., to hear it. I think that the provisions of Order XXV exist entirely separately from those of Order XLIV, and that an application to reinstate under Order XXV, rule 2 (2), is not an application for review under Order XLIV. It is to be observed that, if the applicant can prove that he was prevented by any sufficient cause from furnishing the necessary security, the court is absolutely bound under Order XXV, rule 2 $\overline{(2)}$ , to set aside the dismissal and "to appoint a day for proceeding with the suit". If this were an application for review, the court's duty would be governed by Order XLIV, rules 3 and 6. Under rule 6 "the court may at once rehear the case or make such order in regard to the rehearing as it thinks fit". I think these two directions as to the court's duty on hearing an application to reinstate after failure to furnish security and on application for review are, or at least may be, irreconcilable with one another, and indicate clearly that an application of the former kind is not a species of application for review under Order XLIV. That being so, the provision requiring it to be made to the Judge who dealt previously with the action does not apply, and there is jurisdiction in another Judge to hear it. This appears to me to be in accordance with the practical requirements of the case. Where a Judge dismisses an action for failure to furnish security under Order XXV, rule 2 (1), the dismissal is automatic and does not require the exercise of any judicial discretion. If, therefore, an application is made to set that order aside, it is not necessary in the interests of justice that the Judge hearing the application should know what was in the mind of the Judge who made the previous order. On the other hand, in many cases where review is asked for, it is of the utmost importance that the Judge hearing the application should have full knowledge of the circumstances which led up to the decree or order complained of, and in many cases it would be impossible for any Judge, other than the one who made such decree or order, to deal adequately with the application for review. I have not overlooked the fact that in England there has long been a practice that applications to set aside an ex parte order, which are somewhat analogous to these applications, should be made, if possible, to the Judge who made the order which it is sought to set aside. I express no opinion whether such a practice exists, or ought to exist, in Kenya. It could not, in any event, take away jurisdiction. This ground of appeal fails.

The other ground of appeal was that there was no evidence on which the learned Judge could find that the plaintiff "was prevented by any sufficient cause from furnishing the security within the time allowed". It is, of course necessary for the defendant to go as far as this, since, if there was evidence on which the court could properly so find, this Court would decline to interfere with the exercise of the Judge's discretion. As I have stated, the order clearly required a lodgment of cash, and the only reason for not making that lodgment was that the plaintiff had no funds from which to make it. The learned Judge, however, stated in the course of his order: $-$

"The plaintiff certainly endeavoured to furnish security within the proper time, and in the absence of any indication of the reason for the Registrar's refusal to accept the bond furnished I am not prepared to hold that the plaintiff could reasonably be expected to have foreseen that the bond furnished by him within the specified time would be rejected.

I therefore order that the order of Mr. Justice Harley dismissing this suit be set aside upon terms that plaintiff do pay into court on or before the 1st day of February, 1953, the sum of Sh. 500 by way of further security for costs and that this suit be proceeded with on the 16th day of February."

This appears to indicate a clear misconception. It suggests that the learned Judge believed that the order was one for security to the satisfaction of the Registrar, in which case a suitable bond might have been accepted as compliance with the order. I express no opinion on the question whether, if that had been the case, it would have been reasonable for the plaintiff to assume that any particular bond would be acceptable without prior reference to the Registrar, or to tender one so late that, if it was unacceptable, he would have no time to furnish better security. It is clear that in this case the order was for lodgment of cash only, and no reasonable person could have supposed that the Registrar would accept a bond instead. We think that this misconception in the learned Judge's mind prevented him from exercising his discretion in a judicial manner, and that in consequence it is open to this Court to deal with the matter in this respect as *res integra*. We are satisfied that the mere lack of funds is not "sufficient cause" for failure to furnish security and that no grounds were shown for setting aside the dismissal of the suit.

Certain other grounds of appeal were raised, but in my opinion it is not necessary to deal with them.

I think this appeal should be allowed with costs. The order of Mayers, J., dated 14th January, 1953, should be set aside, save in so far as it orders that the plaintiff should pay the defendant's costs of the application, and that of Harley, J., should stand.

I wish to add that in my opinion the plaintiff's correct course in the circumstances was to apply as soon as possible after obtaining funds for extension of time to furnish the security up to the date of the actual lodgment of Sh. 1,000. If this had been done before the action was dismissed, I see no reason why the court should not have allowed the application, although time had run out. I also wish to add that I should feel great reluctance to allow this appeal, were it not that the plaintiff can, if he so desires, file another suit on the same cause of action. Where this is not so, the point must always be kept in mind as one of the factors which should affect the exercise of the discretion.

SIR BARCLAY NIHILL (President).—I have very little to add to the judgment delivered by my brother the learned Justice of Appeal with which I am in entire agreement. I, too, am fully persuaded that an application to the court under Order XXV, rule 2 (2), is in no sense governed by the procedure applied by<br>Order XLIV to an application for review of a judgment. Dismissal of a suit under Order XXV, rule 2 (1), involves no exercise of judicial discretion for it must follow. automatically on proof of one fact, namely non-compliance with the terms of an order to furnish security. Another Judge accordingly is in just as good a position as the Judge who dismissed the suit to inquire into the matter of sufficient cause.

The learned Justice of Appeal has referred to the English practice where if possible applications to set aside an *ex parte* order are put before the Judge who made the order. The practice is doubtless a salutary one, but I can well believe that its general adoption in these territories would not be without difficulty.

This Court, however, definitely hopes that the advantages to be obtained from it will be borne in mind by Registrars and others responsible for the allocation of business.

For the reasons given by my learned brother this appeal will be allowed and an order will be made in the terms he has proposed. '

Sir Enoch Jenkins (Acting Vice-President).—I concur and have nothing to add. .