Panachand v Kenya General Stores (Civil Appeal No. 31 of 1941) [1942] EACA 33 (1 January 1942)

## APPELLATE CIVIL

## BEFORE THACKER. J.

## DIPCHAND PANACHAND, Appellant (Original 2nd Defendant)

$\mathbf{v}$ .

## THE KENYA GENERAL STORES, Respondent (Original Plaintiff) Civil Appeal No. 31 of 1941

Civil action—Submission during proceedings upon a point of law—Ruling by Magistrate during proceedings and before judgment—Appeal from ruling.

In a civil action before the Resident Magistrate, Mombasa, at the close of the plaintiff's case a submission was made by the advocate for the second defendant upon a point of law. The Magistrate ruled against the submission by the defendant and held that there was a case for this defendant to answer. Upon application, the Magistrate gave leave to the defendant to appeal against this ruling on a point of law.

Held (3-2-42).—That there can be no appeal during the course of proceedings against a mere ruling by the Magistrate upon a point of law. Such a ruling does not involve the making of an order by the Court and is merely a ruling and nothing more. A ruling on a point of law can only be the subject of an appeal after final judgment has been given, and as<br>part of the appeal against such final judgment. Leave to appeal should not have been granted by the Magistrate and the appeal was premature.

Inamdar and D. D. Doshi for the Appellant.

C. A. Patel for the Respondent.

JUDGMENT.—This is an appeal from a ruling made during the course of an action by the learned Magistrate, which action is still in course of hearing by that Magistrate. It is admitted that no judgment by the Court below has yet been delivered.

At the close of the plaintiff's case the advocate for defendant No. 2 submitted that there was no case to answer, and gave certain reasons for his submission. The Magistrate considered that submission and also that of the plaintiff in reply and then ruled that there was a case for defendant No. 2 to answer

The ruling is headed "Ruling" and it is referred to in the appellant's memo of appeal as a ruling.

However, in spite of all this Mr. Inamdar and presumably Mr. Doshi also for the appellant chose to describe it as an order and do so somewhat persistently. If it is an order, I ask myself, an order to do what? I have not the least idea nor has any been suggested. This was, of course, merely a ruling. It was in no sense an order and it contains no order-nor does it carry the implications or consequences of an order. I have never before heard the suggestion that a ruling by the Court that there is a case to answer is in any sense an order.

No appeal, of course, lies against this ruling, at the present stage, although if the defendant No. 2 is unsuccessful in the final result of the action which is now going on he may be at liberty to raise the questions of law raised in his memo of appeal, as well as any others which it is competent or proper for him to raise, and this Court would then be under a duty to consider them, and to adjudicate upon them.

It is no justification whatever for this appeal that the learned Magistrate gave leave to appeal because he should not have been asked for such leave, nor ought he to have granted it when he was asked. $\mathcal{E}^{\pm}$

The appeal is premature and is dismissed with costs.