Shariff and Another v Gaga (Civil Appeal No. 5 of 1952) [1952] EACA 314 (1 January 1952)

APPELLATE CIVIL

#### Before DE LESTANG, J.

# (1) MOHAMMED SHARIFF, (2) ALLA RAKHA, Appellants

### (Original Applicants Landlords)

v.

# NGIGII s/o GAGA (alias GEGE s/o JIGIL), Respondent (Original Respondent Tenant)

### Civil Appeal No. 5 of 1952

(Appeal from the decision of the Central Rent Control Board, Nairobi)

Landlord and tenant-Rent Control Board's power to review its own decision after full hearing—And whether an appeal lies.

In December, 1951, the Rent Control Board heard an application by two landlords jointly for possession of certain premises. After hearing evidence and argument the Board made an order for possession. In January, 1952, the tenant applied to the Board to review and set aside its decision on the ground that one of the landlords had died before the decision was given. The Board heard arguments and made an order setting aside its previous decision.

Held (11-7-52).—The Board has no power to review its own decision after a full hearing on the merits and once it has given its decision it becomes functus officio.

(2) No appeal lies against an order of the Board setting aside its previous decision as such an order is not a determination within the meaning of section 7 of the Ordinance.

Appeal dismissed with costs.

Cases referred to: Arjan Singh Virdee v. Mechani and Others, C. A. No. 378 of 1951; Gujerat Commercial Corporation v. Laxman Dass and Others. 25 (1) K. L. R. 101; Sheikh Noordin Mohamed v. Sheikh Bros., Ltd., 18 E. A. C. A. 42.

Trivedi with Travadi for appellant.

D. V. Kapila for respondent.

JUDGMENT.—The main point for decision in this appeal is whether the Rent Control Board is entitled to review its own decision.

On 20th December, 1951, the Rent Control Board heard an application by two landlords jointly for possession of certain premises to which the Increase of Rent, etc., applies from the respondent on the ground of non-payment of rent. The parties were represented by advocates. The Board after hearing evidence from both sides and argument by learned advocates made an order for possession and for payment of arrears of rent.

On 12th January, 1952, the tenant applied to the Board to review and set aside its decision on the ground that one of the landlords had died before the decision was given. Again the Board heard arguments from learned advocates for the parties and on 24th January made an order setting aside its previous decision.

Mr. Trivedi, on behalf of the appellant, submits that the Board has no power to review its own decisions.

Mr. D. V. Kapila, on behalf of the respondent, contends the contrary and relies on two judgments of the Supreme Court sitting in appeal from the decisions of the Rent Control Board.

If either of these judgments covers the present case I would have to consider myself bound by them and follow them.

The first judgment is by Thacker, J., in Arjan Singh Virdee v. Mechani and Another, 25 (1) K. L. R. 101. In that case the Board had set aside its decision given ex parte and the Supreme Court held that it had power to do so under section 9 of the Increase of Rent, etc., Ordinance.

In the second case, Gujerat Commercial Corporation v. Lazman Dass and Another, C. A. No. 539 of 1951, again the Board had set aside an ex parte decision and Bourke, J., held that as the Board's order did not affect the final determination of the case on its merits but enabled the points in litigation to be decided on the merits, the ideal goal of all litigation, no appeal lay under section 7 of the Ordinance. He went on, however, to say that if it were otherwise he would have considered himself bound by the judgment of Thacker, J., in the case I have already cited.

It will be noticed that both these cases deal with the power of the Board to review its *ex parte* decisions. They are consequently no authority for the proposition that the Board is entitled to review its decisions arrived at after a full hearing on the merits as in the present case. In such a case, in my view, the Board has no power of review. Once a tribunal has given a decision in a case it becomes functus officio and in the absence of express legislation provision it has no power to review its decision and set it aside. I can see no such provision in the Increase of Rent, etc., Ordinance.

The other point for decision is whether an appeal lies against an order of the Board setting aside its previous decision. In other words is such order a "determination" within the meaning of section 7 of the Ordinance. It seems to me that it is not and further that this point is concluded by authority.

It was held by Bourke, J., in Gujerate Commercial Corporation case that an order of the Board setting aside an ex parte decision was not appealable. Again in Sheikh Noordin Mohamed v. Sheikh Bros., Ltd., 18 E. A. C. A. 42, when the Board had declined to hear an application and dismissed it, the Court of Appeal for Eastern Africa upheld the decision of the Supreme Court of Kenya dismissing the appeal on the ground that the decision of the Board was not a determination within the meaning of section 7 of the Ordinance and accordingly no appeal lay.

For these reasons I hold that the order of the Board in the present case setting aside its previous decision is not appealable and that this appeal must be dismissed with costs.