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Court of AppealDismissedCivil Appeal No. 51 of 2010· [2013] KECA 519 (KLR)

Kiura Kigundu v David Muriithi Kigundu & 5 others [2013] KECA 519 (KLR)

Court of Appeal
20 June 2013
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
1,177 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that applications to quash tribunal decisions must be filed within six months—filing ten years late ends the case.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Visram, Koome & Odek, JJ.A) dismissed an appeal against a ruling of the High Court at Embu (W. Karanja, J) dated 10th February, 2010, which had refused the appellant leave to institute judicial review proceedings seeking certiorari to quash a Provincial Land Appeals Committee award of 24th November, 1999. The dispute concerned family land, Ngariama/Kabari/225, registered in the appellant's name as eldest son during demarcation because his father was mentally ill and his mother could not hold title under Kikuyu customary law. The Gichugu Land Dispute Tribunal directed subdivision among the appellant and his four brothers, an award confirmed by the Appeals Tribunal and adopted as judgment of the Principal Magistrate's Court at Kerugoya on 2nd June, 2009 in Award Cause No. 24 of 1999. The Court held that under Order 53 rule 2 of the Civil Procedure Rules, framed in mandatory terms, leave for certiorari must be sought within six months; the appellant's application, filed on 10th February, 2010, was about ten years late. Applying the Mbogo v Shah standard, the Court found no misdirection justifying interference with the Judge's discretion. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the High Court's refusal of leave to apply for certiorari should be disturbed

Holding

The appeal fails because the leave application was filed about ten years after the tribunal decision of 24th November, 1999 and after its adoption as judgment on 2nd June, 2009, well beyond the six-month limitation in Order 53 rule 2; the Judge's discretion was properly exercised.

Reasoning

The Court applied Order 53 rule 2, which is couched in mandatory terms, limiting certiorari applications to six months after the proceeding. Both the tribunal award (24th November, 1999) and its adoption as judgment (2nd June, 2009) predated the 10th February, 2010 application by far more than six months. The application was therefore bad in law. Applying the Mbogo v Shah standard for interference with discretion, the Court found no basis to disturb the learned Judge's decision and dismissed the appeal with costs.

p. 3

Legal principles established

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  • Leave to apply for an order of certiorari must be sought not later than six months after the date of the proceeding sought to be quashed; an application made outside that period cannot be granted
  • An appellate court will not interfere with a judge's discretionary decision to refuse leave for judicial review unless the judge misdirected herself, misapprehended the law, or failed to take into account relevant matters, resulting in a wrong decision or injustice

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII (now Order 53), rule 2
  • Land Disputes Tribunal Actsection 3
  • Registered Land ActChapter 300 (repealed)

Cases cited (1)

  • Mbogo & Another vs. Shah
    (1968) E.A. 93
On appeal from
High Court of Kenya at Embu
Judicial Review No. 5 of 2010
Jurisdiction invoked
First appeal from the High Court in an application for leave to institute judicial review under Order 53 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiura Kigundu v David Muriithi Kigundu & 5 others [2013] KECA 519 (KLR)", Case Analysis (2013). Civil Appeal No. 51 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/519/eng@2013-06-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.