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Court of AppealAllowedCivil Appeal (Appli) 164 of 2005· [2008] KECA 75 (KLR)

ABDULSHAKOOR KHANDWALLA v EAST AFRICAN BUILDING SOCIETY [2008] KECA 75 (KLR)

Court of Appeal of Kenya
14 November 2008
2,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an application under Rule 80 of the Court of Appeal Rules by Abdulshakoor Khandwalla to strike out Civil Appeal No. 164 of 2005 filed by East African Building Society (EABS) against a ruling of Maraga J of the High Court at Mombasa dated 11th June 2004. The underlying dispute concerned a controlled tenancy under the Rent Restriction Act (Cap 296); after a rent assessment, the applicant moved the Tribunal to set aside the Rent Control Certificate, the Tribunal ruled against him, and he appealed to the High Court under Section 8(4) of the Act. The Tribunal file was lost, and the High Court, invoking Section 3A of the Civil Procedure Act, ordered the dispute remitted to the Tribunal for hearing de novo and the appeal marked withdrawn, each party bearing its own costs. EABS appealed to the Court of Appeal after obtaining leave from Mwera J. The Court of Appeal held that Section 8(4) of the Rent Restriction Act makes the High Court the final court in appeals from the Rent Restriction Tribunal; that no appeal lies to the Court of Appeal from any order or determination of the High Court in such an appeal, whether or not determined on the merits; that a right of appeal must be expressly conferred by statute and cannot arise by implication; and that the leave granted was ultra vires and of no effect. The application was allowed and the appeal struck out with costs to the respondent.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 4
02

Whether leave to appeal granted by the High Court could found jurisdiction in the Court of Appeal

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application to strike out the record of appeal is allowed with costs
  2. 2.Civil Appeal No. 164 of 2005 is struck out with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 80
  • Rent Restriction Act (Cap 296)Section 8(1)
  • Rent Restriction Act (Cap 296)Section 8(2)
  • Rent Restriction Act (Cap 296)Section 8(3)
  • Rent Restriction Act (Cap 296)Section 8(4)
  • Rent Restriction Act (Cap 296)Section 37
  • Civil Procedure ActSection 3A
  • Rent Restriction (Appeals) RulesRule 3
  • Civil Procedure RulesOrder XLI
  • Appellate Jurisdiction ActSection 3(1)

Cases cited (2)

  • H. Odongo & 6 Others vs. Savings and Loans Kenya Ltd
    Mombasa, Court of Appeal Civil Appeal No. 22 of 1987 (unreported)
  • Cheema vs. Rodrigues (No. 2)
    [1984] KLR 788
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.