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ELCDismissedJudicial Review Application (Notice of Motion dated 25th July 2012)· [2016] KEELC 551 (KLR)

Republic v Provincial Land Dispue Tribunal Mombasa & 2 others Ex-parte Rehema Khoja Muhambi & another [2016] KEELC 551 (KLR)

High Court of Kenya
16 September 2016
OAO. A. Angote
1,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a landowner's attempt to overturn a tribunal decision because she waited nine months instead of the required six to file.

What this practically means

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Executive summary

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The ex-parte applicant, registered proprietor of Ngomeni/Squatters/Settlement Scheme/1780, sought judicial review orders of certiorari to quash the decision of the Provincial Land Dispute (Appeals Committee) Tribunal in Land Dispute Appeal Case No. 21 of 2007, and two orders of prohibition - one directed at the Magistrates Courts in Malindi and Lamu to prevent them from adopting the tribunal's award, and another directed at the Land Registrar Kilifi to prevent cancellation of her title. The interested party (Kaingu Ngonyo Hinzano), who had died during the proceedings, objected on jurisdictional grounds, arguing that the tribunal no longer existed and that the applicant's remedy was an appeal. The respondents filed grounds of opposition asserting the tribunal acted within its powers. The court framed three issues: timeliness, availability of review orders against a non-existent body, and merit. It held that under Section 9(3) of the Law Reform Act and Order 53(2) of the Civil Procedure Rules, certiorari had to be sought within six months of the decision of 13th July 2011; leave was sought only on 11th April 2012, so certiorari could not issue. Prohibition was refused because both tribunals had already made their decisions, and the repealed Land Disputes Tribunal Act required no adoption by the Magistrates Court. The applicant had also failed to appeal within the statutory 60 days. The application was dismissed with costs.

Key legal issues

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01

Limitation for certiorari

Holding

Certiorari could not issue because leave was sought more than six months after the Appeals Committee's decision of 13th July 2011

Reasoning

Under Section 9(3) of the Law Reform Act and Order 53(2) of the Civil Procedure Rules, certiorari must be sought within six months. Leave was sought on 11th April 2012, nine months after the decision, so the order could not issue regardless of the grant of leave.

p. 3
02

Availability of prohibition

Holding

Prohibition could not issue because both the Tribunal and the Appeals Committee had already made their decisions, and under the repealed Land Disputes Tribunal Act no adoption of the decision by the Magistrates Court was required

Reasoning

Prohibition is prospective and cannot restrain a completed decision. The applicant also feared an adoption process that the repealed statute did not contemplate; her remedy, if any, was an appeal on a matter of law within 60 days, which she did not file.

p. 3
03

Merits of the application

Holding

The application was found unmeritorious and dismissed with costs

Reasoning

Having failed on time and on the availability of both certiorari and prohibition, the application could not succeed. The applicant had also failed to pursue the statutory right of appeal within 60 days.

p. 3

Legal principles established

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  • An application for certiorari must be filed within six months of the decision, and leave granted out of time does not cure the delay
  • Prohibition lies only against decisions not yet made

Court orders

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  1. 1.The Notice of Motion dated 25th July 2012 was dismissed
  2. 2.Costs of the application awarded to the respondents/interested party

Authorities

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Legislation

  • Law Reform ActSection 9(3)
  • Civil Procedure RulesOrder 53(2)
  • Land Disputes Tribunal Act (repealed)null
Jurisdiction invoked
Judicial review jurisdiction under Section 9(3) of the Law Reform Act and 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, "Republic v Provincial Land Dispue Tribunal Mombasa & 2 others Ex-parte Rehema Khoja Muhambi & another [2016] KEELC 551 (KLR)", Case Analysis (2016). Judicial Review Application (Notice of Motion dated 25th July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/551/eng@2016-09-16

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