Benedict Maina Warutere v Mary Wambere Ngetha & another [2017] KEELC 3609 (KLR)
The bottom line
#The High Court in Nyeri dismissed an attempt to overturn a 2007 land tribunal decision, confirming that judicial review deadlines are strict and repealing a law does not erase existing cases.
What this practically means
#Executive summary
#Key legal issues
#Whether certiorari lies to quash an award already adopted as a judgment of the court
Once the Tribunal's award was adopted as a judgment of the court, certiorari to quash a non-existent award could not issue; leave could not be granted
The court found the facts uncontroverted: the Tribunal's award cancelling the applicant's title had been adopted as a judgment of the magistrates' court, with a decree delivered on 21st November 2007. With the award no longer existing independently, there was nothing left for certiorari to remove and quash, rendering the intended judicial review application futile.
Time bar against the application for certiorari
The application for certiorari was time barred, the decision sought to be quashed having been made on 21st November 2007 or before, more than six months before the application
The court held that an application for certiorari must be brought within six months of the decision sought to be quashed. On the uncontroverted facts, the decision was made on or before 21st November 2007, and the application was filed on 9th/17th December 2015, well outside the statutory period, so the order of certiorari could not be pursued.
Effect of repeal of the Land Disputes Tribunals Act on pending proceedings and appeals
The repeal did not render the Tribunal proceedings, the decree, or the pending appeal useless and untenable; remedies survive repeal under Section 23(3) of the Interpretation and General Provisions Act
The court rejected the applicant's premise, relying on the Court of Appeal decision in Chege Macharia v. Francis Kimani Kirimira, which held that awards properly forwarded but unread at repeal should be adopted as judgments with appeals lying to the High Court. Section 23(3) of Cap 2 preserves investigations, legal proceedings and remedies notwithstanding repeal, so the applicant's grounds were legally mistaken.
Undue delay in the application for prohibition
The application for prohibition, brought more than eight years after the decision whose execution was to be prohibited and with no explanation for the delay, failed
While prohibition is not subject to a statutory time limit, the law requires that it be sought without undue delay. The court found the leave application was brought over eight years after the decision and execution sought to be prohibited, and the applicant offered no explanation for the inordinate delay, so the discretionary relief was refused.
Legal principles established
#- Repeal of a written law does not affect legal proceedings or remedies in respect of rights and obligations existing before the repeal, per Section 23(3) of the Interpretation and General Provisions Act, Cap 2
- An application for certiorari must be brought within six months of the decision sought to be quashed
- Although there is no statutory time frame for an order of prohibition, the application must be made without undue delay
Court orders
#- 1.The application for chamber summons dated 9th December 2015 is dismissed with costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (orders of certiorari and prohibition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benedict Maina Warutere v Mary Wambere Ngetha & another [2017] KEELC 3609 (KLR)", Case Analysis (2017). Judicial Review Application (Chamber Summons dated 9th December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3609/eng@2017-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.