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Court of AppealDismissedCivil Appeal No. 126 of 2017· [2018] KECA 777 (KLR)

Joseph Gatheru Gatune v Republic of Kenya & 5 others [2018] KECA 777 (KLR)

Court of Appeal of Kenya
21 February 2018
894 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that judicial review applications must be filed within six months — no exceptions, even after twenty years of trying.

What this practically means

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Executive summary

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The appellant, Joseph Gatheru Gatune, appealed to the Court of Appeal at Nyeri against a ruling of Olao, J. of the Environment and Land Court at Kerugoya dated 28th July 2017, dismissing his application for leave to apply for an order of certiorari to quash tribunal decisions concerning rice holding No. 185 Tebere Unit, the estate of his late father. The decisions sought to be quashed comprised an order of 11th July 1995 confirming the nomination of a successor and a further order of 18th June 1998 dismissing an application to set aside that order. The appellant advanced three grounds: violation of his constitutional right to property, application of wrong legal principles, and failure by the learned Judge to exercise his mind judiciously. The Court of Appeal held that Order 53 Rule 2 of the Civil Procedure Rules is explicit: an application for judicial review must be made within six months of the order sought to be quashed. The appellant's application sought to quash a decision made some twenty years earlier and was therefore clearly out of time. The court held that neither the appellant's lack of legal training nor his repeated, unsuccessful engagements with the courts excused the delay. The appeal was found to have no merit and was dismissed with costs to the 2nd, 4th, 5th and 6th respondents. The ruling of the High Court (Environment and Land Court) was affirmed in its entirety.

Key legal issues

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01

Time limit for seeking leave to apply for an order of certiorari

Holding

The six-month limitation under Order 53 Rule 2 of the Civil Procedure Rules is explicit and mandatory; a certiorari application to quash a decision made twenty years earlier is hopelessly out of time.

Reasoning

Order 53 Rule 2 provides that leave shall not be granted to apply for certiorari unless the application is made not later than six months after the date of the proceeding. The order sought to be quashed was made in 1998 (and the first order in 1995), some twenty years before the application. The court held the law is explicit, and the appellant's lack of legal training and his repeated prior engagements with the court did not excuse the delay. The Judge below correctly applied the rule.

p. 2
02

Alleged violation of the constitutional right to property

Holding

The ground of appeal alleging violation of the appellant's constitutional right to property did not assist him; the appeal failed on the limitation point and no merit was found in the appeal overall.

Reasoning

The appellant's memorandum of appeal asserted that the learned Judge failed to find that his constitutional right to property had been violated, but the court did not engage substantively with that ground. Instead, it disposed of the appeal on the basis that the underlying judicial review application was time-barred under Order 53 Rule 2, finding no merit in the appeal and dismissing it with costs to the 2nd, 4th, 5th and 6th respondents.

p. 2

Legal principles established

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  • An application for judicial review by way of certiorari must be made within six months of the date of the order or ruling sought to be quashed, and the six-month rule applies regardless of the applicant's lack of legal training or prior engagements with the court.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs awarded to the 2nd, 4th, 5th and 6th respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 2
On appeal from
Environment and Land Court of Kenya at Kerugoya
Civil Application No. 1 of 2017
Jurisdiction invoked
First appellate jurisdiction over appeals from the Environment and Land Court (not expressly stated in the judgment)

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, "Joseph Gatheru Gatune v Republic of Kenya & 5 others [2018] KECA 777 (KLR)", Case Analysis (2018). Civil Appeal No. 126 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/777/eng@2018-02-21

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