In the case of the Interim Independent Electoral Commission & Another vs Paul Waweru Mwangi Civil Application No. NAI 130 of 2011 (unreported) (eKLR) (the Kamukunji By Election Case), the Court of Appeal had this to say about its jurisdiction, “The jurisdiction of the Court of Appeal as provided in Section 164(3) of the Constitution is not different form its jurisdiction under Section 64(a) of the former Constitution. It is limited to “hear appeals from the High Court” and in any other Court which Parliament may prescribe….” The Constitution at Article 164(3) provides that the Court of Appeal has jurisdiction to hear appeals from (a) the High Court and (b) any other court or tribunal as prescribed by an Act of Parliament. Accordingly, then the scope and exercise of appellate jurisdiction must be in accordance with the provisions of the statute. At common law a court has no jurisdiction to hear an appeal against a decision of another court. It can only do so if that authority is conferred on it by the statute under which it is constituted, and then it must function in terms of that statute.
Section 16 of the Environment and Land Court Bill, 2011 provides that “Appeals from the Court shall lie to the Court of Appeal against any judgment, award, order or decree issued by the Court in accordance with Article 164(3) of the Constitution.” This kind of provision is not helpful as it merely re-states the power of the Courts to hear appeals. Appeals from the High Court exercising civil and criminal jurisdiction are regulated by the Civil Procedure Act and the Criminal Procedure Code. As a general rule, where the High Court exercises original jurisdiction, there is a direct right of appeal and to the Court of Appeal. Where the High Court exercises appellate jurisdiction, the second appeal is usually limited to matters of law. Interlocutory appeals are limited by way of provision for leave from either court.
As drafted section 16 means that the Court of Appeal will be inundated with appeals on both final and interlocutory matters. These provisions negate one of the principles of the overriding objective that interlocutory appeals must be kept at a minimum. The general trend is to limit the scope of interlocutory appeals as these have the effect of delaying litigation but also increasing costs.
Section 16 of the Environment and Land Court Bill, 2011 provides that “Appeals from the Court shall lie to the Court of Appeal against any judgment, award, order or decree issued by the Court in accordance with Article 164(3) of the Constitution.” This kind of provision is not helpful as it merely re-states the power of the Courts to hear appeals. Appeals from the High Court exercising civil and criminal jurisdiction are regulated by the Civil Procedure Act and the Criminal Procedure Code. As a general rule, where the High Court exercises original jurisdiction, there is a direct right of appeal and to the Court of Appeal. Where the High Court exercises appellate jurisdiction, the second appeal is usually limited to matters of law. Interlocutory appeals are limited by way of provision for leave from either court.
As drafted section 16 means that the Court of Appeal will be inundated with appeals on both final and interlocutory matters. These provisions negate one of the principles of the overriding objective that interlocutory appeals must be kept at a minimum. The general trend is to limit the scope of interlocutory appeals as these have the effect of delaying litigation but also increasing costs.
The Employment and Labourt Court Bill, 2011 takes a different approach. Section18 provides that any party to any proceeding may appeal to the Court of Appeal against any final judgment, award or order of the Court. Section 18(2) further provides that the appeal shall be limited to matters of law only. Two issues are to be noted; First, interlocutory appeals are excluded completely from the scope of appeals and second, whether the appeal is from an original or appellate judgment, award or order the appeal will be only on a matter of law.
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