Republic v Attorney General & 3 others Ex parte Maithya Muviwa & another [2019] KECA 952 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a land dispute appeal, confirming that judicial review applications for certiorari must be filed within six months of the decision.
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 learned judge was right in striking out the application for judicial review on the ground that leave was sought outside the statutory period of six months
- 2.When the impugned ruling of the appeal before the Minister, Kauwi Adjudication Section was made
- 3.Whether the burden lay on the respondents to prove the date of the ruling
- 4.Whether the court below should nonetheless have considered the merits of the application for an order of mandamus, which is not subject to the six-month limitation
Key legal issues
#Limitation period for leave to apply for certiorari
The application for leave to apply for certiorari, filed on 4th January 2005, fell outside the six-month statutory limitation under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, and the High Court was right to strike it out.
Order 53 Rule 2 bars leave for certiorari unless the application is made not later than six months after the date of the proceeding. The date 21st July 2004 on the ministerial proceedings was the certification date, not the ruling date, so the ruling must have been made earlier. Leave filed on 4th January 2005 was therefore out of time and the entire application was rightly struck out.
Burden of proof as to the date of the impugned ruling
Once respondents raised the issue and established that the date on the proceedings was a certification date, the burden shifted to the appellants to prove the actual date of the ruling.
The appellants contended the respondents bore the burden of proving when the ruling was made. The court rejected this, holding that once the respondents correctly demonstrated that the date appearing on the record was that of certification rather than the ruling, the evidential burden shifted to the appellants as the parties asserting the later date to establish when the ruling was actually made.
Whether mandamus relief should have been considered on its merits notwithstanding the limitation bar on certiorari
The court declined to consider the merits of the mandamus application, holding it would be an academic exercise given that the appeal to the Minister had been determined in favour of the 4th respondent.
The appellants argued that the six-month limitation applies only to certiorari, not mandamus. The court held that considering the mandamus would be academic: the restriction was registered on 17th November 1989 to preserve the position pending the ministerial appeal, which had since been determined in favour of the 4th respondent, so compelling removal of the restriction would serve no purpose.
Legal principles established
#- Leave to apply for an order of certiorari must be sought not later than six months after the date of the proceeding, as provided under Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act; leave sought outside that period is incompetent and the application may be struck out.
- Where a respondent raises the issue of the date of a ruling and correctly establishes that a date appearing on proceedings is merely a certification date, the burden of proof shifts to the applicant to prove the actual date the ruling was made.
- A date appearing on certified proceedings is the date of certification of copies, not the date of the ruling itself.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- High Court Misc. Application No. 48 of 2005
- Jurisdiction invoked
- Appeal against the judgment and decree of the High Court in judicial review proceedings (per Civil Appeal No. 251 of 2006, second appeal from the superior court's dismissal of an ex parte judicial review application)
Relief refused
#Interference with the High Court's striking out of the judicial review application
The appellants did not demonstrate any basis for the Court of Appeal to interfere with the trial court's decision
Consideration of the merits of the order of mandamus
Once the certiorari relief was time-barred, considering mandamus to remove a restriction registered to protect a pending appeal that had been determined would be an academic exercise
Costs
Costs of the appeal to the respondents
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.
the burden of proof must then shift to the appellant to prove when the actual date when the ruling was made
the date of 21st July, 2004 appearing on the proceedings before the Minister Kauwi Adjudication Section is the date that the proceedings were certified as true copies of the original and not the date of the ruling
the appellants have not demonstrated any basis for us to interfere with the decision of the trial Court. Accordingly, the appeal fails and it’s dismissed with costs to the respondent.
Issues in the judgment
#The judgment states the leave application was filed on 4th February, 2005 in the narration of facts but later refers to it as filed on 4th January, 2005 when applying the limitation period; the later passage supports the finding that it was outside the six months.
The judgment records the respondents arguing 'the appeal must have been determined earlier on 21st July, 2004' where context indicates 'earlier than 21st July, 2004' was intended.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & 3 others Ex parte Maithya Muviwa & another [2019] KECA 952 (KLR)", Case Analysis (2019). Civil Appeal No. 251 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/952/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.