Judgment No. SC 27/18
Civil Appeal No. SC 173/17
alleged that the matter for which notice had been filed was interlocutory in nature and required
leave to appeal in terms of s 43 of the High Court Act. It was counsel’s contention that without
leave to appeal nothing was pending before the court. MALABA DCJ, as he was then, stated
the following:
“I agree with Mr Mlotshwa that a single Judge of the Supreme Court sitting in chambers
has no power derived from any provision of the relevant statutes, to make an order
striking an appeal pending in the Supreme Court off the roll. The answer to the question
whether a single Judge sitting in chambers has power to hear and determine an
application for an order striking an appeal off the roll lies in the relevant provisions of
the Statute in terms of which the Supreme Court was created and the Rules regulating
its proceedings. It is also necessary to take into account provisions of the enactments
by which the right of access to the Supreme Court on appeal is given.” [My emphasis]
Mr. Mwonzora for the applicants submitted that the above cited case could be
distinguished from the present matter as they were seeking an order that the notice of appeal
be declared a nullity on the basis that the Registrar should not have accepted it in the first place.
He sought to make the distinction that this was not an application for the striking off of an
appeal which was on the Supreme Court roll, but for the setting aside of a decision of the
registrar who had improperly accept such notice of appeal.
In my view this point brings to the fore the question of the role of the registrar
when accepting process. The registrar’s office is established by s 169 (4) of the Constitution.
The provision provides:
“An Act of Parliament may provide for the conferring, by way of rules of court, upon
a registrar of the Supreme Court, duly appointed thereto, of the jurisdiction and powers
of the Supreme Court in civil cases in respect of—
(a)
(b)
the making of orders in uncontested cases, other than orders affecting status or
the custody or guardianship of children;
deciding preliminary or interlocutory matters, including applications for
directions but not including matters affecting the liberty of the subject.”
Section 33 of the Supreme Court Act establishes the officers of the registrar in
compliance with the Constitution. It provides:
“(1) There shall be a registrar of the Supreme Court and such deputy registrars, assistant
registrars and other officers of the Supreme Court as may be required, whose offices
shall be public offices and shall form part of the Judicial Service.”
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