Lubna Ali Sheikh Abdalla Bajaber & another v Chief Magistrate’s Court, Mombasa 2 others [2018] KECA 403 (KLR)
The bottom line
#The Court of Appeal confirmed you cannot use judicial review to overturn a Kenyan court judgment years later — the six-month certiorari deadline is strict.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there were any live proceedings in CMCC No. 2417 of 2003 amenable to quashing by way of certiorari, given the six-month temporal limitation
- 2.Whether an order of prohibition could properly issue against 'any other magistrate within the Republic of Kenya'
- 3.Whether mandamus could lie to compel the magistrate to direct the cancellation of title deeds issued under a valid, unappealed judgment
- 4.Whether the appellants demonstrated bias on the part of the trial magistrate
- 5.Whether the appellants were denied the right to be heard
- 6.Whether the learned Judge erred in declining to grant leave to apply for judicial review
Key legal issues
#Temporal jurisdiction of certiorari
The High Court correctly declined leave because the judgment sought to be quashed was rendered eight years earlier, well outside the six-month limit under order 53.
The court framed jurisdiction as the primary issue since 'jurisdiction is everything'. The prayer on the face of the application sought to quash a judgment delivered on 28 November 2003 and title deeds issued years earlier. The unappealed judgment still stood and could not be collaterally attacked through judicial review eight years later. The learned Judge properly interpreted the law on that aspect.
Prohibition against non-parties and judicial independence
Prohibition could not issue against 'any other magistrate within the Republic of Kenya' who had not dealt with the matter, and an order directing magistrates to decide in a particular manner would undermine judicial independence.
The all-other-magistrates prayer targeted persons who were neither parties nor seized of the matter. The court endorsed Ibrahim J's finding that magistrates have power to hear and determine the civil dispute including questions of jurisdiction, and that compelling a predetermined outcome would compromise impartiality. The learned Judge's reasoning on this limb was affirmed.
Bias and the objective test
No bias was established; the allegation rested solely on the denial of an adjournment, a matter of discretion, and should have been raised before the magistrate in the first instance.
The court adopted the objective test of reasonable apprehension of bias from Anyang' Nyong'o: whether circumstances would give a reasonable, fair-minded and informed member of the public the impression the judge would not apply their mind impartially. The magistrate complained of was not the one who delivered the impugned judgment, and refusing an adjournment is a discretionary act not indicative of bias unless exercised perversely.
Right to be heard
The appellants were in fact heard: they called five witnesses in the eviction suit and were heard on their joinder application; walking out after an adjournment was refused and the dismissal of their applications did not amount to denial of a hearing.
The court reviewed the record and found the appellants participated fully in CMCC No. 3026 of 2004 until their counsel walked out upon refusal of an adjournment, whereupon the defence was closed. They were also heard on the joinder application, which was dismissed on the merits, and never appealed. Being heard does not guarantee a favourable outcome; the constitutional right was not contravened.
Scope of judicial review under order 53 vs expanded constitutional review
Because the application was pegged on order 53 and the Law Reform Act rather than the Constitution or the Fair Administrative Action Act, temporal jurisdiction could not be ignored notwithstanding the expanded horizon of judicial review under the 2010 Constitution.
The court acknowledged that the Constitution, 2010 and the Fair Administrative Action Act have expanded judicial review grounds. However, the leave application before the High Court was expressly grounded on order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act, so the statutory six-month limitation for certiorari remained fatal to the application. The constitutional and fair-administrative-action grounds were not before the Court.
Legal principles established
#- Orders of certiorari may only issue where the decision sought to be quashed was made within six months before the filing of judicial review proceedings.
- Leave to apply for judicial review is a filter; the applicant must demonstrate a prima facie or arguable case, not merely allege breaches of natural justice.
- Allegations of bias against a judicial officer must first be raised before that officer so she may respond and recuse herself if necessary.
- The grant or denial of an adjournment is a matter of judicial discretion and does not, without more, found a claim of bias or denial of the right to be heard; dismissal of an application does not amount to denial of the right to be heard.
- Mandamus issues to compel performance of a statutory public duty that has been refused or neglected, where no other adequate remedy exists.
Court orders
#- 1.The appeal is dismissed with costs to the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- Miscellaneous No. 33 of 2011 (Judicial Review)
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court's ruling declining leave for judicial review (order 53 of the Civil Procedure Rules; sections 8 and 9 of the Law Reform Act)
Relief refused
#Leave to apply for orders of certiorari to quash the judgment and proceedings in CMCC No. 2417 of 2003
Certiorari lies only where the decision sought to be quashed was made within six months; the impugned judgment was eight years old and never appealed against
An order of prohibition against all magistrates within the Republic of Kenya
Those magistrates were not parties and had not dealt with the matter; such an order would undermine judicial independence
An order of mandamus directing the Registrar of Lands to cancel title entries
The magistrate had no statutory duty to direct cancellation of the title where no valid order required such cancellation
Costs
The appeal was dismissed with costs to the 3rd respondent.
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.
There is no dispute that orders of Certiorari can only lie where the decision sought to be quashed was issued within 6 months of Judicial Review proceedings being filed.
Leave to file Judicial Review proceedings is not granted as a matter of course or as a mere formality.
Dismissal of an application does not amount to denial of the right to be heard.
We agree that the judgment in CMCC No. 2417 OF 2003 has never been appealed against; and the same still stands. It could not be challenged eight years later by way of Judicial Review.
The same is hereby dismissed with costs to the 3rd respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lubna Ali Sheikh Abdalla Bajaber & another v Chief Magistrate’s Court, Mombasa 2 others [2018] KECA 403 (KLR)", Case Analysis (2018). Civil Appeal No. 51 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/403/eng@2018-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.