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Court of AppealDismissedCourt of Appeal application under rule 5(2)(b) arising from HC Civil Appeal No 249 of 1984 (BPRT Cases Nos 113 of 1981, 366 of 1980 and 91 of 1981)

Gatanga General Store & 2 others v Githere [1988] KECA 86 (KLR)

Court of Appeal of Kenya
17 May 1988
3,231 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 cannot hear appeals from High Court decisions on rent tribunal matters when the law says those decisions are final.

What this practically means

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Executive summary

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The applicants, aggrieved by a Business Premises Rent Tribunal judgment of January 5, 1984 in BPRT Cases Nos 113/81, 366/80 and 91/81, had filed HC Civil Appeal No 249 of 1984. After the High Court (Gicheru J) refused on June 11, 1987 their application to set aside eviction proceedings and to stay execution pending the hearing of that appeal, they moved the Court of Appeal under rule 5(2)(b) for a stay of execution. The respondent raised a preliminary objection on jurisdiction, relying on the proviso to section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301, which makes the decision of the High Court on any appeal under the Act final and not subject to further appeal. Nyarangi JA, with Masime Ag JA concurring, upheld the objection. He held that the words 'on any appeal' cover interlocutory and final appeals alike, that rules of court and the Civil Procedure Rules cannot confer jurisdiction where statute has withdrawn it, and that the court could not meaningfully supervise or enforce orders in an appeal over which it had no ultimate appellate oversight. The application and intended appeal were therefore struck out. Platt JA dissented: in his view the proviso barred only an appeal from the decision on the substantive appeal, ouster of a superior court's jurisdiction requires express words, and interlocutory refusals of stay remain appealable under sections 66 and 75 of the Civil Procedure Act; he would have allowed the matter to proceed to full hearing. The judgment binds subordinate courts and the High Court on the limits of appellate jurisdiction where a statutory ouster governs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction under rule 5(2)(b) to entertain a notice of motion for stay of execution from an interlocutory decision of the High Court where the proviso to section 15(4) of cap 301 makes the High Court's decision on any appeal under the Act final
  2. 2.Whether rules 39, 40 and 41 of the Court of Appeal Rules or order 41 rule 4 of the Civil Procedure Rules can confer jurisdiction on the Court of Appeal

Key legal issues

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01

Scope of the ouster in the proviso to section 15(4) of cap 301

Holding

The words 'on any appeal' in the proviso cover both interlocutory and final appeals, so no appeal lies to the Court of Appeal from any decision of the High Court in an appeal under the Act

Reasoning

The majority read 'decision of the High Court on any appeal under this Act' as comprehensive, drawing on Gilbert v Endean's definition of interlocutory applications. Since no final appeal lies to the Court of Appeal, the court could not meaningfully supervise the conduct of the High Court appeal, and assuming jurisdiction would be to confer jurisdiction on itself contrary to statute.

p. 2
02

Whether rules of court or the Civil Procedure Rules can found jurisdiction

Holding

They cannot; jurisdiction must come from statute

Reasoning

Counsel for the applicant relied on order 41 rule 4 of the Civil Procedure Rules and rules 39, 40 and 41 of the Court of Appeal Rules. The majority held that subsidiary legislation cannot bypass a clear statutory removal of jurisdiction, and rule 39/40 routes fail because cap 301 contains no provision for leave or certification to appeal to the Court of Appeal.

p. 5

Legal principles established

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  • The jurisdiction of the Court of Appeal is statutory and cannot be conferred by rules or subsidiary legislation; where a statute makes the High Court's decision on any appeal final, no appeal or application lies to the Court of Appeal even on an interlocutory matter
  • Rules of court cannot enlarge the jurisdiction of the Court of Appeal
  • A court whose order it cannot enforce should not assume jurisdiction, as disobedience could not be punished and the court would be brought into disrepute

Court orders

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  1. 1.The preliminary objection succeeds; the notice of motion seeking stay of execution is struck out as incompetent together with the intended appeal

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

majority

Wrote the judgment

Upheld the preliminary objection: the proviso to section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act ousts any appeal to the Court of Appeal, whether interlocutory or final; the application and intended appeal are incompetent.

I would for those reasons reject the argument for the applicant and rule that the application as well the appeal are incompetent and should be struck out.p. 2
dissenting

Wrote the judgment

Would have dismissed the preliminary objection. In his view the proviso bars only an appeal from the decision on the substantive appeal under the Act, not from an interlocutory order such as refusal of a stay, which remains appealable under the Civil Procedure Act; ouster of a superior court's jurisdiction requires express words.

I would therefore dismiss the objection and allow the appeal to go forward to hearing.p. 5
majority

Wrote the judgment

Agreed with Nyarangi JA that the preliminary objection should be upheld; relying on subsidiary legislation (order 41 rule 4) cannot bypass the clear statutory removal of the Court of Appeal's jurisdiction.

I would uphold the preliminary objection and agree with the orders proposed by Nyarangi JA.p. 5
On appeal from
High Court of Kenya
HC Civil Appeal No 249 of 1984 (application for stay refused June 11, 1987)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; challenged under the proviso to section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301

Relief refused

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Stay of execution of the Business Premises Rent Tribunal judgment of January 5, 1984 pending the intended appeal

The Court of Appeal lacks jurisdiction: the proviso to section 15(4) of cap 301 makes the High Court's decision on any appeal under the Act final and the jurisdiction of the Court of Appeal is purely statutory

p. 2

Costs

No costs order recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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 provision against appeal from a decision of the High Court, irrespective of whether that decision is interlocutory or final.
p. 2Statutory jurisdiction and ouster
I would for those reasons reject the argument for the applicant and rule that the application as well the appeal are incompetent and should be struck out. As Masime Ag JA agrees it is so ordered.
p. 2Final orders and disposition
Those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in status quo till the rights can be decided
p. 2Definition of interlocutory applications (Gilbert v Endean, cited by the majority)
A distinct and unequivocal enactment is also required for the purpose of either adding to or taking away from the jurisdiction of a superior court of law
p. 4Dissent: express words needed to oust a superior court's jurisdiction

Issues in the judgment

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minor

The judgment does not state the case number, neutral citation or parties' names of the present application, identifying it only by reference to the underlying BPRT and High Court matters

minor

No costs order appears in the judgment despite the application being struck out

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gatanga General Store & 2 others v Githere [1988] KECA 86 (KLR)", Case Analysis (1988). Court of Appeal application under rule 5(2)(b) arising from HC Civil Appeal No 249 of 1984 (BPRT Cases Nos 113 of 1981, 366 of 1980 and 91 of 1981). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/86/eng@1988-05-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.