Ramadhan Mohamed Ali v Hashim Salim Ghanim [2016] KECA 616 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that when a law says a High Court decision is final, the Constitution does not guarantee you a second appeal.
What this practically means
#Executive summary
#Key legal issues
#Distinction between jurisdiction and the right of appeal under Article 164(3)
Article 164(3) confers jurisdiction on the Court of Appeal but does not confer a right of appeal; a litigant must have a right of appeal before invoking that jurisdiction.
The court held that the appellant misapprehended the distinction between jurisdiction, which is conferred on a court, and the right of appeal, which is granted to a litigant. Article 164(3) addresses the Court of Appeal's jurisdiction to hear appeals from the High Court and tribunals as prescribed, but statutes may define and limit which decisions are appealable. Section 15(4) of cap 301 makes the High Court's decision final, and prior decisions of the Court, including five-judge benches, have consistently rejected the 'thoroughfare' argument.
Whether statutory limits on appeals violate Article 2(4), Article 50 and Article 25 of the Constitution
No violation; denying a second appeal from the Tribunal does not breach the right of access to justice or fair trial where the litigant has been heard before the Tribunal and on first appeal in the High Court.
The court found it stretched imagination to claim that, absent a second appeal, the appellant's rights of access to justice and fair trial were violated. The appellant had been heard before the Tribunal and had exercised his right of appeal to the High Court. Consistent lines of authority, some from five-judge benches, had held that Article 164(3) is not an unrestricted doorway to the Court of Appeal, and nothing was placed before the court to justify a different view.
Legal principles established
#- Article 164(3) of the Constitution confers jurisdiction on the Court of Appeal to hear appeals from the High Court but does not itself create a right of appeal in every litigant; a statutory bar on further appeal is effective, and jurisdiction cannot be invoked without a right of appeal.
- There is no right of second appeal to the Court of Appeal from the original decision of the Business Premises Rent Tribunal where section 15(4) of the Act provides the High Court's decision is final.
Court orders
#- 1.The appeal is struck out with costs to the respondent
- On appeal from
- High Court at Mombasa
- HCCA No. 32 of 2013
- Jurisdiction invoked
- Article 164(3) of the Constitution (appeals from the High Court); the court found section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301 bars a further appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ramadhan Mohamed Ali v Hashim Salim Ghanim [2016] KECA 616 (KLR)", Case Analysis (2016). Civil Appeal No. 64 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/616/eng@2016-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.