Benedict Maina Warutere v Mary Wambere Ngetha & another [2017] KEELC 3609 (KLR)

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.

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.

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.

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.