Premchand Nathu & Co Ltd & 4 others v Kariuki [1990] KECA 48 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear appeals from Business Premises Rent Tribunal cases once the High Court has decided them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to entertain an appeal arising from a determination of the Business Premises Rent Tribunal where the High Court dismissed the first appeal under section 79B of the Civil Procedure Act
- 2.Whether section 66 of the Civil Procedure Act confers a right of appeal to the Court of Appeal in such matters
- 3.Whether the decision of the High Court on an appeal from the Tribunal is final and not subject to further appeal
Key legal issues
#Jurisdiction of the Court of Appeal over matters emanating from the Business Premises Rent Tribunal
The Court has no jurisdiction; the appeal was struck out.
Section 3(1) of the Appellate Jurisdiction Act confines the Court of Appeal to appeals from the High Court in which an appeal lies under any law. The Landlord and Tenant Act (cap 301) excludes the Civil Procedure Act except as to procedure for appeals from subordinate courts, and section 15(4) makes the High Court's decision on any appeal final. Section 66 is therefore inapplicable, and the legislature intended finality at the High Court.
Whether section 66 of the Civil Procedure Act confers a right of appeal to the Court of Appeal in this matter
It does not; section 66 presupposes application of the Civil Procedure Act, which does not extend to appeals under cap 301, and in any event does not define the Court of Appeal's jurisdiction.
Section 66 merely prescribes that an appeal lies from decrees and orders of the High Court except where otherwise provided. The jurisdiction of the Court of Appeal is defined by section 3(1) of the Appellate Jurisdiction Act. Because cap 301 does not import the Civil Procedure Act generally and its section 15(4) adopts only the procedure for appeals from subordinate courts, section 66 is rendered inapplicable.
Effect of the earlier ruling in Civil Application NAI 220/89
That ruling, made on an application for stay under rule 5(2)(b), did not decide and cannot be taken to imply that the Court has jurisdiction over Tribunal matters.
Rule 5(2)(b) merely empowers the court to order a stay on terms it thinks just, engaging considerations of urgency and whether the appeal would be rendered nugatory. Such an interlocutory ruling on stay is of no assistance on the distinct question of the court's jurisdiction.
Legal principles established
#- The Court of Appeal's jurisdiction is statutory and derived from section 3(1) of the Appellate Jurisdiction Act; not every determination of the High Court is appealable to it.
- An appeal from the Business Premises Rent Tribunal ends with the decision of the High Court; by the proviso to section 15(4) of cap 301 that decision is final and not subject to further appeal.
- Section 66 of the Civil Procedure Act does not apply to appeals from the Tribunal to the High Court and does not define the jurisdiction of the Court of Appeal; only the procedure relating to appeals from subordinate courts is adopted by section 15(4).
Court orders
#- 1.The appeal is struck out for want of jurisdiction
- 2.Costs are awarded to the respondent against each one of the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- Section 3(1) of the Appellate Jurisdiction Act (cap 9); the court found it had no jurisdiction over an appeal from the High Court's dismissal of an appeal from the Business Premises Rent Tribunal
Relief refused
#The appellant's appeal to the Court of Appeal (framed as an appeal from the refusal of Shields J to set aside the dismissal of the first appeal)
The Court has no statutory jurisdiction to entertain an appeal from the High Court's decision on an appeal from the Business Premises Rent Tribunal; section 15(4) makes the High Court's decision final
Costs
Costs are awarded to the respondent against each one of the appellants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have gone at length into the question of jurisdiction of this court in respect of any appeal from the decision of the High Court on appeal before it from the Business Premises Rent Tribunal. We find that we do not have jurisdiction to entertain this appeal. The same is truck out. Costs are awarded to the respondent against each one of the appellants. Orders accordingly.
there is, in our view, a clear manifestation of the intention of the legislature to bring a finality to the appeal with the decision of the High Court. Trying to take the appeal on some pretext or the other beyond the High Court is, in our view, an attempt to defeat the purpose of the legislature.
The jurisdiction of this court to entertain an appeal from the High Court is essentially derived from the law which is applicable to the matter in issue before the High Court.
The jurisdiction of this court is statutory. For this court to entertain this matter would be to confer jurisdiction on itself in the face of statutory provisions against appeal from a decision of the High Court, irrespective of whether that decision is interlocutory or final.
Issues in the judgment
#Typographical error in the final orders: 'truck out' appears where 'struck out' is evidently intended
The judgment does not state the case number of the appeal itself; the case number field is reconstructed only from internal references
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Premchand Nathu & Co Ltd & 4 others v Kariuki [1990] KECA 48 (KLR)", Case Analysis (1990). Court of Appeal Civil Appeal arising from High Court appeal under section 15(2), Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, cap 301. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/48/eng@1990-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.