[1950] EACA 5

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and SIR ENOCH JENKINS, Justice of Appeal

# (1) CHARAN KAUR as Administratrix of the Estate of KARTAR SINGH. Deceased, (2) HARCHARAN SINGH, Appellants (Original Defendants)

#### $\mathbf{1}$ MISTRY MAKANJI VANMALI, Respondent (Original Plaintiff)

## Civil Appeal No. 64 of 1952 (1)

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

Landlord and Tenant—Procedure—Decision of Supreme Court in appellate jurisdiction—Preliminary objection—Whether order of remittal for hearing appealable—Kenya Increase of Rent (Restriction) Ordinance, 1949, sections 5 (1) (f) and 16 (1) (a) and (b)—Kenya Civil Procedure Ordinance (Cap. 5), sections 2, 72, 75 (1) and (2)—Kenya Civil Procedure Rules, Order XLI, rule 19. Order XLII, rule 1.

The Central Rent Control Board dismissed the present respondent's application for possession. Objection was taken that the Board had no jurisdiction because the proceedings were in respect of a vacant piece of land. The evidence disclosed that the respondent had rented the site as an open plot and had erected on it various structures which had not been authorized as required by the Nairobi Municipal By-laws. The Board stated that they were not prepared to assist him as landlord to recover rents in respect of illegal structures. On appeal the Supreme Court held that the Board had jurisdiction and remitted the matter to the Board for determination. The appellants appealed against the Supreme Court judgment and on the hearing the respondent took an objection in limine to the competency of the appeal on the ground that the order of the Supreme Court was not a final determination of the rights of the parties but only an order of remand under Order XLI, rule 19, that such an order is not appealable as of right and no leave to appeal was obtained.

**Held** (3-7-53).—Once a matter has arrived at an established Court by way of appeal the ordinary legislation dealing with further appeals from that Court must be held to apply, with certain exceptions.

(2) The Board did not reject the head-tenant's application on the objection to jurisdiction raised on the sub-tenants' reply: they heard evidence and decided in effect<br>that they would not consider granting relief because the suit premises were illegal<br>structures. The substantial part of the decision consideration was merely ancillary and consequential and could not be treated as an order of remand under Order XLI, rule 19.

Preliminary objection disallowed. Appeal relisted for argument on the merits.

[*Editorial Note*.—The decision on the merits is reported at p. 14 *infra.*]

Cases referred to: Sheikh Noordin Gulmohmed v. Sheikh Brothers Ltd., 18 E. A. C. A. 42; Chelekani Rama Rao, (1916) L. R. 43 I. A. 192.

Khanna for appellants.

Trivedi for respondent.

JUDGMENT.—This is an appeal from a decision of the Supreme Court of Kenya in Civil Appeal No. 1142 of 1951, which allowed with costs the present respondent's appeal from a decision of the Central Rent Board and directed that the matter be remitted to the Board for due hearing and consideration.

The present respondent is the head-tenant of the suit premises and the present appellants are his sub-tenants. The present respondent was the applicant to the Board on an application for an order for possession under sections 5 (1) (f) and 16 (1) (a) and (b) on the grounds that the sub-tenants had failed to pay arrears of rent amounting to Sh. 1,340, had been irregular in payment and had "proved nuisance" [sic]. He also asked for further rent or mesne profits until vacant possession.

The sub-tenants (present appellants) in a written reply denied the allegations relating to payment of rent and nuisance, and they also alleged that the Board had no jurisdiction to determine the matter because, they alleged, it related to a vacant parcel of land.

When the application came on for consideration before the Board on 10th September, 1951, Mr. Khanna for the sub-tenants raised the issue of jurisdiction. The Board then viewed the *locus* and after doing so, decided to hear the evidence. In the course of the applicant's (head-tenant's) evidence he disclosed that he rented the site as an open plot from the owner and had erected on it various structures which had not been authorized as required by the Nairobi Municipal By-laws.

At this stage the Board stopped the case and dismissed the application. In their written "Decision" they said that if regarded as a claim for rent of an open space (which was the basis of the applicant's first letter of demand: Exhibit A), the Board had no jurisdiction. Alternatively, they were not prepared to give any assistance to a landlord seeking to recover rents in respect of unauthorized premises.

The Supreme Court held that the Board had jurisdiction even though the structures were unauthorized and, as already stated, remitted the matter for further consideration and determination.

The sub-tenants having appealed to this Court from the decision of the Supreme Court, when the appeal came on for hearing, Mr. Trivedi, who appeared for the head-tenant, took an objection *in limine* to the competence of the appeal: this was argued before us as a preliminary objection and we reserved the point for consideration.

Mr. Trivedi's argument may be tabulated as follows: —

- (a) The Increase of Rent (Restriction) Ordinance, 1949, gives a limited right of appeal from determinations of the Central Board to the Supreme Court, but it does not give any right of further appeal to this Court. - (b) A right of appeal from any decision of the Supreme Court made in appellate jurisdiction can only be conferred by the Civil Procedure Ordinance (Cap. 5) or by rules made thereunder. If the decision is a decree passed in appeal a right of appeal is conferred by section 72 of the Ordinance: if it is an order made on appeal then either— - (i) an appeal is expressly barred by sub-section $(2)$ of section 75 of the Ordinance; or - (ii) no appeal lies as of right except as provided in section $75$ (1) and Order XLII, rule 1. - (c) In Civil Case Appeal No. 57 of 1950, Sheikh Noordin Gulmohamed v. Sheikh Bros. Ltd., this Court held that an appeal lay because the decision of the Supreme Court dismissing the first appeal from the Board was a "decree" within the definition of that term in section 2 of the Civil Procedure Ordinance in that it finally determined the rights of the parties.

(d) In the instant case there was no such final determination, because the Supreme Court merely remitted the matter to the Board for determination. The order made was an order of remand under Order XLI, rule 19 (the Board having disposed of the application upon a preliminary point); such an order is not appealable as of right and no leave to appeal was obtained.

We have come to the conclusion that this argument cannot succeed. The question as to whether an appeal to this Court lies from decisions of the Supreme Court on appeal from the Rent Control Boards was exhaustively considered by Lockhart-Smith, J. A., in the case cited above, Civil Appeal No. 51 of 1950. Basing his views on decisions of the Privy Council, that learned Judge (with whose judgment the President agreed) decided that such an appeal did lie: that case has been consistently followed subsequently and must now be regarded as binding on this Court.

A study of the judgment shows that the learned Justice of Appeal followed the Privy Council in not resting his decision upon the strict interpretation of the definitions of "decree" and "order": one test as to when an appeal will lie is quoted from the report of the Judicial Committee in Chelekani Rama Rao, (1916) L. R. 43 I. A. 192, in the following passage: $-$

"The claim was an assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation."

His general conclusion is expressed in the following passage: after referring to the fact that the attention of Their Lordships did not appear to have been drawn to the definitions, which present a real difficulty, he says:

"Be that as it may, it must, in my opinion, now be regarded as well settled that once a matter has arrived at an established Court by way of appeal, the ordinary legislation dealing with further appeals from that court must be held to apply, unless excluded by special legislation, or unless the case can be brought within the principle laid down in the Rangoon group of authorities."

(The reference to the "Rangoon group" is elucidated in the judgment: the present case certainly does not come within that group.)

We think that on the authority of this case we are bound to hold that this present appeal is competent. Moreover we are not satisfied that the decision of the Supreme Court can properly be treated as an order of remand under Order XLI, rule 19. The Central Board did not reject the head-tenant's application on the objection to jurisdiction raised on the sub-tenants' reply: they heard evidence and decided, in effect, that they would not consider granting relief because the suit premises were illegal structures. The substantial part of the decision of the Supreme Court is that this determination was wrong in law and the order remitting the matter for further consideration was merely ancillary and consequential.

For these reasons, the preliminary objection fails and we direct that the appeal be relisted for argument on the merits. The appellants will have the costs of and incidental to the argument on the preliminary objection. In the event of the respondent succeeding on the appeal and obtaining an order for his costs, these are to be set off against the costs now awarded the appellants.