[1940] EACA 6

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and HAYDEN, J. (Kenya)

## B. E. A. CORPORATION LTD., Appellants (Original Defendants)

## ABDULLA ALIBHAI KANJI and HASSANALI ALIBHAI KANJI, as Administrators of the estate of ALIBHAI KANJI, Deceased, Respondents $(Original\!iffs)$

Civil Appeal No. 12 of 1940

(Appeal from the decision of H. M. Supreme Court of Kenya)

- Appeal—Taxation—Whether an appeal lies from decision of a judge on a reference under Rule 7, Rules of Court (Advocate's Remuneration and Taxation of Costs) No. 2 of 1916—East Africa Order in Council, 1902, Article 22— East Africa Order in Council, 1906, Article 2. - Held (21-11-40).—That no appeal lies from the decision of a judge on a reference made to him under Rule 7, Rules of Court (Advocate's Remuneration and Taxation of Costs) No. 2 of 1916.

Christie for Appellants.

Atkinson & Inamdar for the Respondents.

SIR JOSEPH SHERIDAN, C. J.—It is provided by Rule 7 of Rules of Court No. 2/1916, Advocate's Remuneration and Taxation of Costs Rules, "Should any party object to a decision of the Taxing Officer he may refer his objection for the decision of a Judge of the Supreme Court". The appeal before us is from a decision of a Judge of the Supreme Court on a reference made to him from a decision of the Taxing Officer (the Acting Deputy Registrar, Mombasa). The Rules of Court referred to were made under the authority conferred by Article 22 of the East Africa Order in Council, 1902, and Article 2 of the East Africa Order in Council, 1906. Although both Orders in Council have been repealed and replaced by the Kenya Colony Order in Council, 1921, the Rules of Court No. 2/1916 are kept alive by the proviso to that Order in Council. In the present appeal the point which we have to decide is whether an appeal lies from an order made by a Judge of the Supreme Court under Rule 7. The Rules themselves provide no right of appeal and if a right of appeal does lie one must look elsewhere for it. Before us it has been argued by Mr. Christie that this right is to be found in Order XL R. 1(2) of the Civil Procedure Rules, 1927. I shall examine that proposition. It is provided by Order XL Rule 1(1) that "An appeal shall lie as of right from the following orders under the provisions of section 75 of the Ordinance, namely: $-$

- "(a) An order under Rule 10 of Order VII returning a plaint to be presented to the proper Court; - (b) An order made under Rule 20 of Order IX rejecting an application for an order to set aside the dismissal of a suit; - (c) An order under Rule 24 of Order IX rejecting an application for an order $\mathbf{r}$ to set aside a decree passed *ex parte*; - (d) An order made under Rule 21 of Order X; - (e) An order under Rule 10 of Order XIV for the attachment of property; - (f) An order under Rule 19 of Order XIV pronouncing judgment against a party; - (g) An order under Rule 31 of Order XIX on an objection to the draft of a document or of an endorsement;

- (h) An order under Rule 67 or Rule 85 of Order XIX setting aside or refusing to set aside a sale: - (i) An order that execution be levied made under Rule 6 of Order $XX$ ; - (i) An order under Rule 8 of Order XXI refusing to set aside the abatement or dismissal of a suit: - (k) An order under Rule 9 of Order XXI giving or refusing to give leave; - (1) An order under Rule 6 of Order XXII recording or refusing to record an agreement, compromise, or satisfaction; - $(m)$ An order under Rule 2 of Order XXIII rejecting an application for an order to set aside the dismissal of a suit: - (n) Orders in interpleader suits under Rules 3, Rule 6 or Rule 7 of Order XXXI: - (p) An order made upon the hearing of an originating summons under Order XXXIV: - (q) An order made under Rule 1, Rule 2, Rule 4, Rule 8 of Order XXXVII. - (r) An order under Rule 1 or Rule 4 of Order XXXVIII. - (s) An order of refusal under Rule 16 of Order XXXIX: - (t) An order under Rule 4 of Order XLII granting an application for review; - (u) An order made in an interlocutory matter by a District Registrar; "

All these are orders made under Rules of the Civil Procedure Ordinance. In addition to the Orders set out in Rule $1(1)$ it is provided by Rule $1(2)$ : "An appeal under these rules shall lie from any other order with leave of the Court making the order or of the Court to which an appeal would lie if leave were given". It is the construction of this sub-rule which is the crux in this appeal. Mr. Atkinson has argued that the rule must be a rule as defined by the Ordinance and Mr. Christie the contrary. While Mr. Christie has been unable to point out any rule in the Civil Procedure Rules covering the case, he has submitted that the Rules No. 2/1916 must be deemed to have been incorporated in the Civil Procedure Rules and accordingly falling within the provisions of sub-rule (2) thus making it possible for the Court to give leave to appeal from an order made under Rule 7 of Rules No. 2/1916. He referred us to Order XLIV R. 8 in support of his contention but frankly I cannot see that any assistance is forthcoming from that quarter, for it makes no mention directly or indirectly of the matter to which we are seeking an answer. It will be seen from Order XL that the rule-making authority is section 75 of the Civil Procedure Ordinance and in so far as it is material I shall refer to that section. Section 75(1) provides "An appeal shall lie from the following orders, and save as otherwise expressly provided in this Ordinance or by any law for the time being in force, from no other orders". Here as in the case of Order XL there follows a list of orders (a) to (h) made appealable under this section. And it will be observed that the orders referred to in (a) to (e) refer to orders made under Order XLIII of the Civil Procedure Rules, that the order in $(f)$ refers to an order made under section 64 of the Ordinance and that $(g)$ refers to orders under other provisions of the Ordinance. Then comes $(h)$ which provides for an appeal from "any order made under rules from which an appeal is expressly allowed by Rules". Thus it will be seen that section 75 apart from the saving clause at the start refers exclusively to matters falling within the provisions of the Ordinance or its rules, just as Order XL R. 1 refers to matters within the Civil Procedure Rules. It occurs to me that it would be indeed strange if the Ordinance, and much more so its rules, were to purport to deal with matters outside the provisions of the Ordinance and where the question is whether a right of appeal exists, I should require very definite language to convince me to the contrary. Where one is considering a question of this kind it is idle to speak generally of what is reasonable and the possible hardship consequent on there being no right of appeal. One must keep one's mind glued to

the question "Where is the statutory authority for the proposition that a right of appeal has been given". Now taking the provisions S. $75(1)(h)$ which I regard as the authority for Order XL and bearing in mind that "rules" is defined as meaning "rules and forms made by the Rules Committee to regulate the procedure of Courts" it becomes clear that the power of the Rules Committee as one would expect it to be, is confined to providing for appeals from orders made under Rules made by the Rules Committee and in my opinion no argument to the contrary can survive. I have however considered whether the construction sought to be placed upon Order XL R. 1(2) by Mr. Christie cannot be upheld in the use of the word "Ordinance" in section 75(1) though Mr. Christie did not raise this point. It is true that "Ordinance" is defined in the definition section as including rules, but I am satisfied that having regard to the provisions of section $75(1)(h)$ . the fact that section 75 in making provision for appeals from orders confines itself to orders under the Ordinance and its rules, that Order XL R. 1(1) is confined to orders made under Rules under the Ordinance and that Rule 7, the Rule in question in this appeal, is a Rule made by quite a different body, namely the Judges exercising powers granted to them by an Order in Council, the orders referred to in Order XL R. 1(2) are orders under the Civil Procedure Rules. 1 find that no appeal lies and dismiss the appeal with costs.

WHITLEY, C. J.—I have had the advantage of reading the judgment of the learned President with which I entirely agree. I was disposed at one time to think that there might be some substance in an argument in favour of the appellants' contention based upon the words "save as otherwise expressly provided in this Ordinance" in section $75(1)$ of the Ordinance. Applying the interpretation in section 2 those words must be taken to mean "save as otherwise expressly provided in this Ordinance or in the Rules made thereunder", Order XL R. 1(2) gives a right of appeal with leave of the Court "from any other order". The word "order" is not qualified in any way. If it had read "any other order made under this Ordinance or these Rules" it would have been quite clear that there was no intention to give a right of appeal with leave from orders made under other Ordinances or Rules. Without such words of limitation it might seem arguable that no such limitation was intended. These words "any other orders" must however in my opinion be interpreted to mean "any other orders which we, the<br>Rules Committee, are competent to deal with", and it is difficult to see how that Committee could have the power to decide when an appeal should lie in the case of orders made under a set of rules such as the Advocate's Remuneration and Taxation Rules, which rules were made by a totally different rule-making authority, namely the Judges of the Supreme Court constituted under and deriving its authority from the Order in Council and not from the Civil Procedure Ordinance at all. The Judges of the Supreme Court when framing those rules thought fit to provide a right to review of the Taxing Master's order by a Judge but provided no further right of appeal. It would be strange indeed if a different authority such as the Rules Committee constituted under an Ordinance and not under the Order in Council should have the power to vary or add to what the Judges of the Supreme Court had thought proper to lay down.

The right of appeal is the creature of statute and can only be given by express legislation and if the Rules Committee were to seek to create any such right in the case of orders not within the purview of the Civil Procedure Ordinance they would seem to be arrogating to themselves a power to legislate which had not been conferred upon them. I agree with the learned President that "orders" in Order XL R.1(2) must mean orders made under the Ordinance or under the rules made by the Rules Committee and that accordingly there is no right of appeal. I would dismiss the appeal with costs.

HAYDEN, J.—I concur.