Gatanga General Store & 2 others v Githere [1988] KECA 86 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Scope of the ouster in the proviso to section 15(4) of cap 301
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
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.
Whether rules of court or the Civil Procedure Rules can found jurisdiction
They cannot; jurisdiction must come from statute
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.
Legal principles established
#- 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
#- 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
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
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
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
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
#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
Costs
No costs order recorded in the judgment
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.
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.
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.
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
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
Issues in the judgment
#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
No costs order appears in the judgment despite the application being struck out
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.