Shah v Attorney General of Kenya (Civil Appeal No. 10 of 1955) [1955] EACA 289 (1 January 1955)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President), SIR KENNETH O'CONNOR, Chief Justice (Kenya), SIR ENOCH JENKINS, Justice of Appeal, and Hooper, J. (Kenya).

IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS.

KESHAVLAL PUNJA PARBAT SHAH, Appellant $\mathcal{V}$ .

THE ATTORNEY-GENERAL OF KENYA, Respondent Civil Appeal No. 10 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, de Lestang, J., and Harley, Ag. J.)

Prerogative writ—Habeas Corpus—Jurisdiction of Supreme Court to entertain applications for prerogative writs on its civil side—Stare decisis—Liberty of the subject.

Holding that it was bound by the decision of the Court of Appeal in Makhan Singh v. Principal Immigration Officer until it was expressly overruled, the Supreme Court held that an application for a writ of habeas corpus which had been brought on the civil side of its jurisdiction must be dismissed.

Held (7-4-55).—(1) Makhan Singh v. Principal Immigration Officer was wrongly decided.

(2) A departure from the rule of stare decisis was justified, even though Makhan Singh $\nu$ . Principal Immigration Officer was a criminal matter and the instant case was a civil one, because the liberty of the subject was involved.

Appeal allowed. Order of Supreme Court set aside. Matter remitted to Supreme Court to be heard and decided on its merits.

Cases referred to: Makhan Singh v. Principal Immigration Officer 17 E. A. C. A. 40; In the matter of an application for directions in the nature of habeas corpus by Keshavlal Punja Parbat Shah, post, page 381; Lall Khan $v \cdot R$ . 17 E. A. C. A. 118; R. v. Taylor $(1950)$ 2 A. E.

170.

Gledhill for appellant.

Webber for respondent.

JUDGEMENT (prepared by WORLEY (Vice-President).—The simplest way to approach the issues in this appeal is to refer to the judgment of this Court delivered on 28th January, 1955, in Criminal Appeal No. 996 of 1954, post, page 381 in which the present appellant was also the appellant. The relevant facts and history of this matter are there set out, and it is only necessary now to add that after delivery of the judgment in the previous appeal, the appellant on the same day in Kenya Supreme Court Miscellaneous Civil Application No. 2 of 1955 obtained from that court a writ of habeas corpus addressed to the officer in charge of H. M.'s Prison, Nairobi. On 1st February, 1955, the return to the writ came before two Judges of the Supreme Court who referred to the judgments of this Court in Makhan Singh v. Principal Immigration Officer (1950) 17 E. A. C. A. 40 and in Criminal Appeal No. 996 of 1954 (supra). They held, and if we may respectfully say, correctly held that they were bound by the decision in Makhan Singh's case until it was overruled: they were therefore constrained to hold that the application before them was wrongly brought on the civil side of the Supreme Court and must be dismissed.

The present appeal is brought from that order of dismissal. It was not opposed by the Crown, Mr. Webber stating that, in the view of the Law Officers, Makhan Singh's case was wrongly decided and that the jurisdiction to issue the prerogative writs on the civil side of the Supreme Court had not been taken away. We allowed the appeal, set aside the order appealed from and directed that the matter be remitted to the Supreme Court to be heard and determined on its merits. We now give our reasons.

Mr. Gledhill, for the appellant, relied for his argument that Makhan Singh's case should not be followed entirely upon the reasons and arguments set out in the judgment in Criminal Appeal No. 996 of 1954 (*supra*). We propose in the instant case to do the same and adopt what was there said without repeating it.

The only point which has troubled us is how far we are justified in departing from the rule of stare decisis in the present appeal which has come before us as a civil matter. It could be said that, until the moment of our decision to overrule Makhan Singh's case, the present appeal was in law, despite its form, a criminal matter. It could also be said that, even if a civil matter, it was one involving the liberty of the subject and, therefore, by parity of reasoning from the case of $R$ , $v$ . *Taylor* (1950) 2 All E. R. 170, one in which the rule observed in civil cases relating only to property rights and claims as between subject and subject ought not to be applied. We think that, as this Court said in Criminal Appeal No. 996 of 1954 "the true distinction is not whether the proceedings are criminal or civil, but whether the liberty of the subject is involved".

There is another ground on which our decision not to follow Makhan Singh's case could be justified. In that case this Court followed and applied its dictum in Lall Khan v. R. (1950) 17 E. A. C. A. 118, relying, at least in part, upon the absence from the Civil Procedure Ordinance of any provision for the issue of prerogative writs. It does not appear from the judgment in either of those cases. that the court directed its mind to the provisions of section 3 of that Ordinance which is fully considered in Criminal Apeal No. 996 of 1954. To this extent therefore it may be said that the decision in Makhan Singh's case was given per incuriam.

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