Gatanga General Store & 2 others v Githere [1988] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal cannot hear appeals from High Court decisions on rent tribunal matters when the law says those decisions are final.
What this practically means
#Executive summary
#Key legal issues
#Scope of the ouster in the proviso to section 15(4) of cap 301
The words 'on any appeal' in the proviso cover both interlocutory and final appeals, so no appeal lies to the Court of Appeal from any decision of the High Court in an appeal under the Act
The majority read 'decision of the High Court on any appeal under this Act' as comprehensive, drawing on Gilbert v Endean's definition of interlocutory applications. Since no final appeal lies to the Court of Appeal, the court could not meaningfully supervise the conduct of the High Court appeal, and assuming jurisdiction would be to confer jurisdiction on itself contrary to statute.
Whether rules of court or the Civil Procedure Rules can found jurisdiction
They cannot; jurisdiction must come from statute
Counsel for the applicant relied on order 41 rule 4 of the Civil Procedure Rules and rules 39, 40 and 41 of the Court of Appeal Rules. The majority held that subsidiary legislation cannot bypass a clear statutory removal of jurisdiction, and rule 39/40 routes fail because cap 301 contains no provision for leave or certification to appeal to the Court of Appeal.
Legal principles established
#- The jurisdiction of the Court of Appeal is statutory and cannot be conferred by rules or subsidiary legislation; where a statute makes the High Court's decision on any appeal final, no appeal or application lies to the Court of Appeal even on an interlocutory matter
- Rules of court cannot enlarge the jurisdiction of the Court of Appeal
- A court whose order it cannot enforce should not assume jurisdiction, as disobedience could not be punished and the court would be brought into disrepute
Court orders
#- 1.The preliminary objection succeeds; the notice of motion seeking stay of execution is struck out as incompetent together with the intended appeal
- On appeal from
- High Court of Kenya
- HC Civil Appeal No 249 of 1984 (application for stay refused June 11, 1987)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; challenged under the proviso to section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatanga General Store & 2 others v Githere [1988] KECA 86 (KLR)", Case Analysis (1988). Court of Appeal application under rule 5(2)(b) arising from HC Civil Appeal No 249 of 1984 (BPRT Cases Nos 113 of 1981, 366 of 1980 and 91 of 1981). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/86/eng@1988-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.