ABDULSHAKOOR KHANDWALLA v EAST AFRICAN BUILDING SOCIETY [2008] KECA 75 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that High Court decisions in Rent Restriction Tribunal appeals are final and cannot be appealed further, even with a judge's permission.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 8(4) of the Rent Restriction Act bars an appeal to the Court of Appeal from a High Court ruling made in an appeal from the Rent Restriction Tribunal, even where the appeal has not been determined on the merits
Yes. Section 8(4) makes the High Court the final court in appeals from the Rent Restriction Tribunal. The High Court's orders, made in an application within the appeal, finally determined the appeal by terminating it and ordering a retrial, so no appeal lies to the Court of Appeal.
Section 8(1) makes tribunal decisions final; Section 8(2) permits limited High Court appeals; Section 8(4) prohibits any further appeal from a High Court determination under Section 8(2). The superior court was exercising appellate jurisdiction under the Act, not independent original civil jurisdiction. Its orders terminated the appeal and ordered a rehearing, thereby finally determining it. Distinguishing H. Odongo on the absence of a merits determination did not assist the appellant, as no authority or statutory provision permits an appeal against an interlocutory order of the High Court in such an appeal.
Whether leave to appeal granted by the High Court could found jurisdiction in the Court of Appeal
No. Leave is of no effect where the statute does not authorise an appeal, whether with or without leave; leave so granted is ultra vires the law.
Jurisdiction under Section 3(1) of the Appellate Jurisdiction Act exists only where an appeal lies under the law of Kenya. The Rent Restriction Act contains no provision sanctioning an appeal to the Court of Appeal with the leave of the High Court. Mwera J's grant of leave on 15th September 2004 therefore could not create a right of appeal that Parliament did not confer.
Legal principles established
#- No appeal lies to the Court of Appeal from a determination or order of the High Court in an appeal from the Rent Restriction Tribunal, by virtue of Section 8(4) of the Rent Restriction Act.
- A right of appeal exists only if expressly conferred by statute and cannot arise by implication; leave granted by a superior court cannot cure the absence of statutory authority for an appeal.
- Procedural rules applicable to an appeal do not confer jurisdiction; jurisdiction and procedure are distinct.
Court orders
#- 1.The application to strike out the record of appeal is allowed with costs
- 2.Civil Appeal No. 164 of 2005 is struck out with costs to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 30 of 1994
- Jurisdiction invoked
- Section 8(4) of the Rent Restriction Act (Cap 296) and Section 3(1) of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Bureau of Standards v Geo Chem Middle East [2019] KECA 109 (KLR)[2019] KECA 109 (KLR)22 Nov 2019
Cite this brief
#Cite this brief
Caselaw, "ABDULSHAKOOR KHANDWALLA v EAST AFRICAN BUILDING SOCIETY [2008] KECA 75 (KLR)", Case Analysis (2008). Civil Appeal (Appli) 164 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/75/eng@2008-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.