Islam Ahmed Said v King Feisal Trust of Kenya [2017] KEHC 783 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 215 OF 2010

ISLAM AHMED SAID...................................APPEALLANT

VERSUS

KING FEISAL TRUST OF KENYA.............RESPONDENT

J U D G M E N T  O N  R E V I E W

1.  Further to the court ruling dated the 20th June 2017 allowing theAppellant’s application for review on account of glaring error on theface of the record which founded and informed the courts decision in the judgment dated 19/2/2016,  this decision is on the fate of the appeal, the Order for striking out having been set aside.

2.  In the judgment of 19/2/2016, the court heard found and held:-

“13. My understanding of the jurisdiction granted to the Tribunal under section 5(1) m is that it entitles the tribunal to reopen and revisit any of its decision of whatever nature I believe for the ends of justice to be met. I hold and find that the tribunal had jurisdiction to entertain the application to reopen the proceedings even if there had been an order assessing rent beyond the statutory sealing of kshs.2500/=.  If it was the order sought to be disturbed.  To hold as the tribunal did would be to defeat the purpose of the provision and to make the tribunal helpless even where an obvious injustice can be seen by it.

14. However, there is the question whether there is indeed a competent appeal before me to deliberate upon. It is trite that a right of appeal is never automatic but must be granted by statute. Under the Civil Procedure Act Section 75 and order 43(1) provide for orders for which an appeal arises as of right.  My reading of those provisions inform me that a ruling on a preliminary objection is not one of the orders from which an appeal has a right.

15. In the instant case, the order appealed against was arising out of a preliminary objection and this could only be filed with the leave of the court under 43 Rule1 (2).

16. This was taken up by Ms. Ali and no response was made to the issue by Mr. Odongo for the Appeallant. Infact a reading of the entire record reveal that no leave was ever sought nor was any  granted with the consequence that this appeal was filed contrary to the law and it is to that extent incompetent. Having found that it is incompetent I therefore proceed and strike it out on that score”.

3.  The appeal was struck out for the reasons I did find in the ruling of20/6/2017 to have been accentuated by an error apparent on the face of the record.  However on the merits, paragraph 13 of the ruling of 19/2/2016 found the same to have been meritorious.

4.  Having so found in the previous ruling, there would be no proposeserved for me to look at the appeal afresh. I order it allowed on terms that the decision by the trial court dated 7/9/2010 is set aside and it is ordered that the matter be placed before the tribunal for the purposes of hearing and determining the application dated 12/5/2010 which is hereby reinstated for that purpose.

5.  I award the costs of this application and the appeal to the Appellantas the successful party.

6.  It is so ordered.

Dated and delivered at Mombasa this 1st day of September 2017.

P.J.O. OTIENO

JUDGE