Wilson Osolo v John Ojiambo Ochola & Attorney General
The bottom line
#Kenya's Court of Appeal ruled that statutory deadlines for judicial review cannot be extended, killing a certiorari case filed twelve years late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court had jurisdiction to grant leave de novo to file a notice of motion out of time, twelve years after the event
- 2.Whether time limited by statute (section 9(3) of the Law Reform Act) can be extended
- 3.Whether a valid notice of motion was filed within 21 days of the grant of leave by Platt J
Key legal issues
#Extension of statutory time limits for certiorari leave
Section 9(3) of the Law Reform Act fixes a six-month limit for seeking certiorari leave which cannot be extended; Order 49 CPR extends only procedural time limits, not statutory ones.
Order 53 rule 2 derives verbatim from section 9(3) of the Law Reform Act. While time under the Civil Procedure Rules may be extended under Order 49, that procedure cannot extend a time limit imposed by statute. The Limitation of Actions Act has no relevance. Platt J's ex-parte extension was therefore a fundamental error and a nullity.
Jurisdiction to grant leave de novo
Okubasu J had no jurisdiction to grant leave de novo and extend time twelve years after the event, duplicating Platt J's (null) orders.
The learned judge knew Platt J had extended the period, yet proceeded to hear the same application de novo, granted leave to file the already-filed notice of motion out of time and ordered priority hearing. Making orders which another judge had made twelve years earlier was a clear error and an excess of jurisdiction.
Filing of notice of motion within 21 days of leave
Order 53 rule 3(1) mandatorily required the notice of motion to be filed within 21 days of grant of leave; no such filing occurred, so no proper application was before the court.
Assuming Platt J's order was valid, no notice of motion was filed within 21 days of 15th February 1982; the application filed on 26th February 1982 was a chamber summons of unknown contents. The 21-day period could have been extended under Order 49, but the only such application came on 28th April 1994, far too late.
Legal principles established
#- Time limits for applying for leave to apply for certiorari set by statute cannot be extended; only time limits under the Civil Procedure Rules are extendable.
- An order granting extension of time made without jurisdiction is a nullity and all steps taken in reliance on it are of no consequence.
- A judge cannot re-make orders already made by another judge of concurrent jurisdiction; to do so is without jurisdiction.
Court orders
#- 1.Appeal allowed with costs here and below
- 2.Notice of Motion filed in the Superior Court on 4th May, 1994 dismissed with costs
- 3.Cross appeal by the second respondent allowed with costs
- 4.Notice of grounds to affirm the decision of Okubasu J dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.MISC.C.C. No. 343 of 1982
- Jurisdiction invoked
- First appellate jurisdiction over a High Court ruling in judicial review proceedings (Order 53, Civil Procedure Rules)
Relief refused
#Notice of grounds to affirm the decision of Okubasu J
Cross-appeal succeeded; the affirmation grounds failed
Costs
Appeal allowed with costs here and below; Notice of Motion dismissed with costs; cross appeal allowed with costs; notice of grounds to affirm dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
that procedure cannot be availed of for the extension of time limited by statute, in this case, the Law Reform Act.
It therefore is apparent that the extension of time granted by Platt J. was a nullity. Any steps taken thereafter are therefore of no consequence.
We do not see how the learned judge could again have made orders which Platt J. made twelve years earlier. In so doing the learned judge clearly erred. He had no jurisdiction to make such orders.
This appeal therefore succeeds and is allowed with costs here and below with the result that the Notice of Motion filed in the Superior Court on 4th May, 1994 is dismissed with costs.
Issues in the judgment
#Date of Platt J's leave order inconsistently given as 1983 case vs 15th February 1982 filing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Osolo v John Ojiambo Ochola & Attorney General", Case Analysis (1996). Civil Appeal No. 6 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/217/eng@1996-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.