Shah v Jethabhai Oil Mills and Soap Factory Limited (Civil Application No. 4 of 1955) [1955] EACA 307 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and MACDUFF, J. (Kenya)

## M. K. SHAH (Proprietor of Manilal & Company), Applicant

## THE JETHABHAI OIL MILLS & SOAP FACTORY LIMITED, Respondent Civil Application No. 4 of 1955

Application for leave to appeal to Privy Council—Application made out of time— Application for leave to appeal to Privy Council from order of Judge in Chambers-Eastern African (Appeal to Privy Council) Order-in-Council, 1951, sections 3 (b) and 4—Eastern African Court of Appeal Rules, 1954, rule $73$ (4).

An appeal having been listed for hearing on 4th February, 1955, the Court (Worley (Vice-President), O'Connor, C. J., and Jenkins, J. A.) were present as was the respondent's advocate, but the appellant (the present applicant) was absent. The appeal was dismissed without prejudice to any application for reinstatement made under rule 73 (4) of the Eastern African Court of Appeal Rules, 1954.

On 4th April, 1955, Briggs, J. A., dismissed an application by the applicant to set aside the said dismissal of 4th February, 1955.

Section 4 of the aforesaid Order-in-Council provides: "Applications to the Court for leave to appeal shall be made by motion or petition within sixty days from the date of the judgment to be appealed from..." and the motion was filed more than sixty days after 4th February, 1955.

Section 3 (b) of the same Order-in-Council provides: "Subject to the provisions of this order, an appeal shall lie $(b)$ at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the appeal is one which, by reason of its great general or public importance or otherwise, ought to be submitted to His Majesty in Council for decision".

Held (21-7-55).—(1) The Court of Appeal has no power, under the Eastern African (Appeal to Privy Council) Order-in-Council, 1951, to extend the time for an application for leave to appeal to the Privy Council.

(2) The decision of 4th April, 1955, was not a final judgment as it could have been reviewed, upon application, by a full court, and the case was not one where the Court ought to exercise its discretion under section 3 $(b)$ of the said Order-in-Council.

Application dismissed.

Case referred to: Dagnino v. Bellotti (1886) 11 A. C. 604.

Applicant in person.

C. A. Patel for respondent.

JUDGMENT (delivered by Nihill (President)).—We must uphold the preliminary objections submitted by the respondents to this application for leave to appeal to the Privy Council. In addition to defects in form, the applicant is out of time with his application for leave to appeal against the judgment of this Court, dated 4th February, 1955, and this Court has no power under the East African (Appeal to Privy Council) Order-in-Council, 1951, to extend time.

As regards the applicant's application for leave to appeal against the decision of Mr. Justice Briggs, dated 4th April, 1955, that decision was not a final judgment, as the applicant could have had it reviewed by the full Court. This step he has not taken. This case is obviously one in which this Court should not exercise the discretion given us under section 3 $(b)$ of the Order-in-Council.

This application is accordingly dismissed with costs.