By Evarist Baimu Nyaga Mawalla - Home

situations, namely (a) where the party applying for revision did not rev=ceivenotice of the proceedings and (b) where the decision was made in the absence ofthat party. He concedes that in these circumstances the remedy of revision is notopen to his client because he does not qualify under the conditions which havebeen laid down by the Rules. He contends further, as we are also awre, that heright of appeal is constitutional. He cites two cases in support of his argment:James F. Gwagilo V. Attorney – General, Civil Case No. 23 of 1993 (Unreported(and Njombe / Ludewa/Makete Co-operative Union V. Minister for Labour, Youthand Culture, Misc. Civil Cause No. 8 of 1994 (Unreported). We are aware ofmore decisions on this point but we think that that is not the issue, really. Theissue is whether the applicant can assail the constitutionality of a statute in anapplication such as this one. We make this observation with the full knowledge ofthe pronouncement of the Court of Appleal regarding ouster clauses which Yestexclusive jurisdiction in quasi-judicial tribunals. We may only observe that there isa remarkable distinction between the background in Attorney-General V. LohaAkkonaay and Joseph Lohay (CA) Civil Appeal No. 31 of 1994 (Unreported). Thedistinction resides in the manner and mode in which the litigation was instituted inthe Akkonaay case. The latter case was not instituted as an application forprerogative orders; it was a petition for a declaratory judgment that the provisionsof a statute which ousts the jurisdiction of the municipal courts is unconstitutional.And that was precisely the decision of the Court of appeal.514