Lord Atkin.—

This is an appeal from an order of the Court of Appeal for Eastern Africa, varying an order of the Supreme Court of Kenya, which dismissed a motion by the applicant Abdulhusein Kaderbhai for a mandamus addressed to the appellant, the Commissioner for Local Government Lands and Settlement in Kenya. The Commissioner had given notice of an auction sale of town plots at Mombasa at which Europeans only were to be allowed to bid and purchase. The notice contained the further special condition, that during the terms of the grant the grantee should not permit the dwelling house or outbuildings which had to be erected upon it to be used as a place of residence for any Asistic or African not a domestic servant employed by him. The applicant, who is an Indian subject of His Majesty resident in Mombasa on 10th August 1928, by notice of motion dated 9th August, moved the Court for a mandamus commanding the Commissioner to allow the applicant to bid for and purchase at the auction sale the plots on Mombasa Island, notified to be held on 11th August, and also commanding the respondent to cancel or annul the condition No. 5 of the special conditions, being the condition above referred to, restricting the use of the dwelling-house. The learned Judge before whom the application came ex parte made an order postponing the sale and ordered that

"a notice to show cause do issue to the respondent upon the above mentioned motion for a mandamus."

returnable in a month. Eventually, in December, counsel for the applicant and the Commissioner were heard on that order, and the learned Judge dismissed the motion. On appeal to the Court of Appeal for East Africa the Court allowed the appeal as to the right to bid and purchase, but dismissed it as to the restrictive condition. The decree reads :

"It is ordered that the appeal be allowed . . . to the extent that the rule in regard to the first prayer is made absolute, viz., the appellant is allowed to bid for and purchase certain Crown land proposed to be sold by auction in Mombasa Island."

No objection appears to have been taken at any time to the form of the proceedings, counsel for the Commissioner in the Supreme Court stating that he was instructed not to take any technical points, but to argue the case on its merits. Their Lordships will proceed therefore to dispose of the legal question involved, and will reserve any comments on the procedure.

The disposal of Crown lands in Kenya is regulated by the Crown Lands Ordinance No. 12 of 1915. The case made by the applicant is that under the provisions of the ordinance the Commissioner is bound to permit all members of the public or, alternatively, all subjects of the Crown, to bid and purchase at an auction of town plots, and is equally bound not to insert in the lease of any such plots restrictive conditions adversely affecting the Asiatic or African population of Kenya, at any rate, to such an extent as to make a purchase by them of no practical value. The case of the Commissioner is that the terms of the ordinance do not prevent him from imposing the restrictions of which complaint is made. It is desirable to point out that the Courts are concerned only with the bare question of law, viz., the powers of the Commissioner under the ordinance. Questions of policy, or, in other words, how the legal powers shall be exercised, are not matters for the legal tribunal, but have to be determined by the appropriate constitutional authority. Approaching thus the construction of the ordinance it is found that it is divided into twelve parts. Those with which this controversy is concerned are Part 2, Administration; Part 3, Disposal of Land within Townships; Part 4, Disposal of Agricultural Land. By S. 6, the first section falling under Part 2, the Governor is given power to grant lease or otherwise alienate on His Majesty's behalf, any Crown lands for any purpose and on any terms and conditions as he may think fit. He is further given power to remit covenants an