Odongo & 6 others v Savings and Loan Kenya Ltd [1987] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that when the law says a decision is final, you cannot use review to reopen it.
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 had jurisdiction to hear an appeal from the High Court's dismissal of an application for review of its appellate decision under the Rent Restriction Act
- 2.Whether the High Court had jurisdiction to entertain an application for review under section 80 of the Civil Procedure Act and Order 44 rule 1 of the Civil Procedure Rules of its own appellate judgment under the Rent Restriction Act
Key legal issues
#Whether review under section 80 of the Civil Procedure Act is available against a High Court appellate decision under the Rent Restriction Act
It is not; section 8(4) makes the High Court's appellate decision final and section 80 does not apply to the Rent Restriction Act.
Section 8(4) of the Rent Restriction Act forbids further appeals from the High Court's appellate decision. Section 80 of the Civil Procedure Act provides for review only of orders from which an appeal is allowed by that Act, and the Rent Restriction Act is outside it. Allowing review would permit a litigant indirectly to do what the legislature has directly forbidden, subverting its expressed intention that there be an end to litigation after one appeal.
Consequence for the appeal to the Court of Appeal
Since the High Court had no jurisdiction over the review application, no appeal lay to the Court of Appeal and the appeal was struck out.
The court accepted the respondent's preliminary objection that the High Court lacked jurisdiction over the review. A decision rendered without jurisdiction cannot ground an appeal. The matter the appellants sought to revisit on review had already been considered and determined on the earlier appeal, and resurrecting it would circumvent section 8(4).
Legal principles established
#- Section 8(4) of the Rent Restriction Act renders the High Court's appellate decision final; no further appeal or review lies, and review cannot be used to circumvent that finality.
- A right of appeal must be expressly conferred and cannot arise by implication.
- A litigant may not achieve indirectly, by review, what he is barred from doing directly by statute.
Court orders
#- 1.Preliminary objection on jurisdiction upheld
- 2.Appeal struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Lead judgment: no appeal lies to the Court of Appeal from the High Court's appellate decision under section 8(4) of the Rent Restriction Act; the High Court had no jurisdiction to entertain the application for review.
We therefore hold that the High Court had no jurisdiction to entertain the application for review. The preliminary objection is therefore upheld with the consequence that this appeal is struck out with costs.p. 2
Wrote the judgment
Agreed the appeal should be struck out as incompetent; section 80 of the Civil Procedure Act applies only to orders from which an appeal is allowed by that Act and therefore does not apply to the Rent Restriction Act.
Section 80 of the Civil Procedure Act provides for review of orders from which an appeal is allowed by that Act and therefore does not apply to the Rent Restriction Act.p. 2
Wrote the judgment
Concurred: a right of appeal cannot accrue by implication and must be expressly conferred; a litigant cannot do indirectly by review what is barred directly, in the public interest that there be an end to litigation.
I do not think we should accept that a litigant could contrive to do indirectly what he is legally barred from doing directly.p. 3
- On appeal from
- High Court
- Jurisdiction invoked
- Section 8(4) of the Rent Restriction Act, Cap 296; appeal to Court of Appeal treated as a first appeal under section 66 of the Civil Procedure Act (Hamzaali Alibhai)
Relief refused
#The appellants' appeal against the High Court ruling dismissing their application for review
The High Court had no jurisdiction to entertain the review application, so no appeal lay to the Court of Appeal
Costs
Appeal struck out with costs to the respondent
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 therefore hold that the High Court had no jurisdiction to entertain the application for review. The preliminary objection is therefore upheld with the consequence that this appeal is struck out with costs.
I think it is a platitude that right of appeal cannot accrue to a litigant by implication. It must be expressly conferred.
I do not think we should accept that a litigant could contrive to do indirectly what he is legally barred from doing directly.
it is in the public interest that there should be an end to litigation
Section 80 of the Civil Procedure Act provides for review of orders from which an appeal is allowed by that Act and therefore does not apply to the Rent Restriction Act.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo & 6 others v Savings and Loan Kenya Ltd [1987] KECA 86 (KLR)", Case Analysis (1987). Mombasa Civil Appeal (arising from High Court appeal by Savings and Loan Kenya Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/86/eng@1987-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.