Odongo & 6 others v Savings and Loan Kenya Ltd [1987] KECA 86 (KLR)

the Tribunal but rather as a first appeal against a decision of the High Court under section 66 of the Civil Procedure Act. When the appeal opened for hearing, however, learned counsel for the respondent raised a preliminary objection to the jurisdiction of the High Court to entertain this appeal. It was submitted that the legislature intended that the appellate jurisdiction of the High Court under the Rent Restriction Act should be regulated by rules made under that Act and not by rules made under the Civil Procedure Act (see section 37 of the Act). The Rent Restriction (Appeals) Rules made under section 37 provide, inter alia:3. "The Civil Procedure Rules shall, mutatis mutandis apply in respect of the procedure to be followed in an appeal under section 8(2) of the Act as they apply in respect of an appeal from a subordinate court to the High Court.” 5. Section 65 of the Civil Procedure Act which provides for the appellate jurisdiction of the High Court does not include appeals from the Rent Restriction Tribunal though it covers subordinates courts and Khadhi’s Courts. And section 8(4) provides that the decision of the High Court exercising its appellate jurisdiction shall be final. The Civil Procedure Rules are by Rule 3 of the Rules limited in their application to Rent Restriction matters to appeals under section 8(2) and so it is contended, review is excluded. 6. We consider that the matters convassed in the review application before the High Court are the same matters that were before the Court in its appellate jurisdiction and that they were duly considered and determined. To allow the appellant to resurrect them as the High Court did in the review application would amount to circumventing the provisions of the Rent Restriction Act in section 8(4) whereby no further appeals are permitted. 7. 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. Judgemet of Nyarangi JA 1. I agree that this appeal should be struck out as incompetent. The question raised in the preliminary point is whether the High Court had jurisdiction to hear the Notice of Motion under section 80 of the Civil Procedure Act and Order 44 r 1 of the Civil Procedure Rules. The Notice of Motion followed a decision by the High Court in an appeal by Savings and Loan Kenya Limited. No appeal lies from the determination of an appeal to the High Court: Section 8(2), and (4) of the Rent Restriction Act, cap 296. 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. 2. The question for decision therefore turns upon the construction of the Rent Restriction Act and the Civil Procedure Act. Mr Aboo strenuously contended that the High Court had jurisdiction. I have, like my brethren, reached the conclusion that that proposition is unsound. 3. Mr Khanna’s submission was well founded. Accordingly the High Court had no jurisdiction to deal with the Notice of Motion and that being the case there can be no appeal to this court. 4. As Apaloo JA also agrees the appeal is struck out with costs. 5. I agree with the order on costs proposed by Masime Ag, JA https://new.kenyalaw.org/akn/ke/judgment/keca/1987/86/eng@1987-07-24 2

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Judgment of APALOO JA 1. I have read in draft the ruling of my brother Masime and agree with it. I think it is a platitude that right of appeal cannot accrue to a litigant by implication. It must be expressly conferred. And in so far as the Legislature expressed its will in this matter, it expressed it clearly against allowing a second appeal from the decision of the High Court from a Rent Tribunal. 2. The section which prohibits a second appeal is section 8(4) of the Act which my brother Masime has read. It is in clear language and does not admit of any other interpretation than that a further appeal from the High Court appellate decision from a Tribunal is forbidden. 3. I understand Mr Aboo’s ingeneous submission aright, he argues that that this clear expression of the legislative will can be overridden by the combined efiect of the provisions of Rule 3(1) the Rent Restriction Appeal Rules, section 80 of the Civil Procedure Act and Order 44 of the Civil Procedure Rules. So he said, in efiect that the finality accorded to the appellate decision of the High Court in a Rent Restriction case can be set at nought, as it were by the process of a review. 4. I cannot subscribe to that construction of the law. It would be subversive of the clearly expressed intention of the Legislature and I cannot accept that is the proper function of any court. Sound reasons of public policy may have decided Parliament to enact that when a Rent Tribunal pronounces on a dispute before it, a person aggrieved by its judgment may have one right to contest it on appeal and thereafter the matter should rest for all time. After all, it is said, and said wisely, that it is in the public interest that there should be an end to litigation. 5. I do not think we should accept that a litigant could contrive to do indirectly what he is legally barred from doing directly. And that will be the practical result of acceding to Mr Aboo’s argument. In my judgment, it cannot be right. In my opinion, Mr Khanna’s contention is the right one. It, at least, has the merit of according with both the spirit and the letter of the relevant pieces of legislation. 6. Accordingly, I also agree that the preliminary objection succeeds and I concur in the order proposed. DATED AD DELIVERED AT MOMBASA THIS 24TH DAY OF JULY 1987 J.O. NYARANGI ................................ JUDGE OF APPEAL F.K. APALOO ................................ JUDGE OF APPEAL J.R.O. MASIME ................................ AG JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/1987/86/eng@1987-07-24 3

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