Mcdonald v Berkley (Civil Appeal No. 33 of 1939) [1940] EACA 33 (1 January 1940)

### **APPELLATE CIVIL**

#### BEFORE THACKER, J.

#### GEORGE ALEXANDER MCDONALD, Appellant (Original Respondent)

$v$ .

# RONALD JOSEPH BERKLEY, Respondent (Original Appellant)

## Civil Appeal No. 33 of 1939

- The Public Travel and Access Roads Ordinance (Chapter 113) section 17— Whether an application for leave to appeal out of time from an order of a district board can be granted—Jurisdiction of a subordinate court of the first class. - Held (25-4-40).—That a subordinate court of the first class has no power to enlarge the time given for entering an appeal from an order of a district board.

Schermbrucker for the Appellant.

Angus for the Respondent.

JUDGMENT.—This is an appeal from the decision of the Resident Magistrate in which he granted leave to appeal from an Order made by a District Board under the provisions of section 17, Chapter 113, Laws of Kenya. It is admitted the desired appeal was out of time. The single question before me is whether the Resident Magistrate has power to enlarge the time for appeal, whether by statute or by inherent power. The words of section 17, Cap. 113, Laws of Kenya, are as follows: $-$

S. 17 (1) An appeal from an order of a district board shall lie to a subordinate court of the first class.

(2) Every such appeal shall be entered within thirty days of the date of such order.

These words are mandatory and there is here no power given to the subordinate court of the first class to enlarge the time given for entering an appeal, namely 30 days from the date of the order desired to be appealed from. These words mean what they say and if the legislature had intended the subordinate court of the first class to have power to enlarge the time for entering an appeal it would have so enacted. The magistrate seems to have been in some doubt whether or not the word "shall" in sub-section (2) is mandatory. There can be no doubt whatever as to the answer. The word "shall" is clearly mandatory.

Order 47, rule 5, is not relevant to the question and applies to proceedings set out in the Civil Procedure Code and not to Cap. 113, Laws of Kenya.

It is argued for the respondent that section 79, Civil Procedure Code, applies and that therefore the provisions of section 65(2) apply to this case. In my judgment however Part VII of the Civil Procedure Code which includes section $65(2)$ cannot be invoked in aid. Part VII applies to appeals from subordinate courts to the Supreme Court and to appeals from appellate Decrees, and to various appeals from orders set out in section 75, and not to appeals under Cap. 113 of the Laws of Kenya.

It is argued that the words "special or local law" embrace Cap. 113 of the Laws of Kenya. I do not think so. The words "in which a different procedure is not prescribed" have to be read with reference to the words "special or local law" and the procedure has been definitely laid down in Cap. 113 which enacts that an appeal must be entered within thirty days.

I find it difficult to ascertain what exactly the words "special or local law" refer to but, in my judgment, whatever they are intended to mean, they at least do not refer to Cap. 113. Moreover I do not think there is any inherent power in a magistrate to enlarge the time for entering an appeal. The existence of section 65(2) in the Civil Procedure Code supports me in this view. If courts had an inherent power it would have been unnecessary to enact section 65(2).

The learned Magistrate was wrong in exercising any discretion in the matter and in applying to his jurisdiction in this appeal the practice of the Supreme Court or the Court of Appeal for Eastern Africa.

This appeal is therefore allowed with costs.