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ELCDismissedNyeri High Court Judicial Review No. 237 of 2012 (Notice of Motion dated 7th November 2012)· [2017] KEELC 847 (KLR)

Republic v Francis Ndirangu Thiriku & 3 others Ex - Parte Wilson Mbauni Wamatu [2017] KEELC 847 (KLR)

High Court of Kenya
31 October 2017
LWL N Waithaka
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed a landowner's challenge because he filed his judicial review application just over six months late, and that deadline cannot be extended.

What this practically means

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Executive summary

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The exparte applicant, Wilson Mbauni Wamatu, sought an order of certiorari to quash the proceedings in Nyeri CMCC No. 830 of 2004 and the registration of the 1st and 5th respondents as owners of L.R Thegenge/Kianjogu/685 and Thegenge/Kianjogu/374. He alleged that his late father, Wamatu Githaga, had agreed to exchange his land with the County Council of Nyeri for market extension, took occupation of L.R 685, but died before the formal cross-transfer was effected; that the respondents thereafter dealt with both parcels without a grant of letters of administration to the estate; and that on 15th March 2012 the 4th respondent issued an execution order pursuant to which the suit land was subdivided. The 2nd respondent raised a preliminary objection that the application was filed more than six months after the orders and proceedings sought to be quashed, contrary to Order 53 Rule 2 of the Civil Procedure Rules. The court set out Section 9(3) of the Law Reform Act and Order 53 Rule 2, both imposing a six-month limit on applications for leave to apply for certiorari, and found that the leave application filed on 19th October 2012 came 7 months and 4 days after the decision of 15th March 2012. Although minutes of the Land Disputes Tribunal and the adoption proceedings were not attached, the court found the award had been adopted as a judgment before execution, so time ran from that decision. The application for leave was out of time and incurable. The motion was dismissed with costs to the 2nd, 3rd and 4th respondents.

Key legal issues

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01

Whether the judicial review application for certiorari was filed within the statutory six-month limitation period

Holding

The application for leave was filed 7 months and 4 days after the decision of 15th March 2012 and was therefore out of time and fatally defective.

Reasoning

The court examined Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, both of which bar the grant of leave to apply for certiorari unless the application for leave is made within six months of the decision sought to be quashed. The execution order being challenged was issued on 15th March 2012, while leave was sought on 19th October 2012, well outside six months. The underlying Tribunal award had been adopted as a judgment of the court before the execution orders issued, so time ran from that decision.

p. 4

Legal principles established

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  • An application for leave to apply for an order of certiorari must be filed within six months of the judgment, order, decree, conviction or other proceeding sought to be quashed, and an application filed outside that period cannot be cured.

Court orders

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  1. 1.Dismissal of the exparte applicant's Notice of Motion dated 7th November 2012
  2. 2.Costs of the application awarded to the 2nd, 3rd and 4th respondents

Authorities

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Legislation

  • Law Reform ActSection 9(3)
  • Civil Procedure RulesOrder 53 Rule 2
  • Land Control ActSection 6, Cap 302
  • Land Disputes Tribunal ActSection 7 (now repealed)
  • Environment and Land Court ActAct No. 19 of 2011
Jurisdiction invoked
Section 9 of the Law Reform Act, Cap 26 and Order 53 of the Civil Procedure Rules (leave granted on 22nd October 2012 for Judicial Review Proceedings)

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 Francis Ndirangu Thiriku & 3 others Ex - Parte Wilson Mbauni Wamatu [2017] KEELC 847 (KLR)", Case Analysis (2017). Nyeri High Court Judicial Review No. 237 of 2012 (Notice of Motion dated 7th November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/847/eng@2017-10-31

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