Republic v District Commissioner, Keiyo & 2 others; Peter Kiprono Chirchir (Interested Party); Exparte Robert Kipsigirio Lotiang [2018] KEELC 317 (KLR)
The bottom line
#A Kenyan court quashed a land appeal decided 15 years too late, confirming that void decisions can be overturned at any time.
What this practically means
#Executive summary
#Key legal issues
#Whether the Ministerial appeal was a nullity for being filed out of time
The appeal to the Minister, lodged approximately 15 years after the Land Adjudication Officer's decision, was out of time under section 29 of the Land Adjudication Act and was null and void; consequently there was no valid appeal before the Minister.
Section 29 of the Land Adjudication Act requires appeals to the Minister to be lodged within 60 days of the Adjudication Officer's decision. The decision appealed against was made on 15.8.1990, yet the appeal was filed in 2005/2006 with no extension of time granted. A decision founded on such an appeal was based on a null and void appeal and could not stand.
Whether the six-month limit in Order 53 rule 2 barred the judicial review application
No - Order 53 rule 2 does not apply to null and void proceedings; certiorari lies to quash a nullity at any time.
The respondents argued the motion was commenced outside the mandatory six-month period. The court held that Order 53 rule 2 presupposes valid proceedings; where the underlying decision is a nullity, no limitation applies, so certiorari could issue despite the delay.
Whether the 1st respondent breached natural justice
The applicant was condemned unheard - the District Commissioner decided the appeal without notice to him, amounting to procedural impropriety and unfairness.
The applicant deponed that he only discovered the decision in September 2014 when directed to the Director of Land Adjudication office, and that numerous inquiries went unanswered. The failure to summon or notify him denied him an opportunity to participate, breaching natural justice and rendering the process unfair and tainted with procedural impropriety.
Legal principles established
#- There is no time limit for applying for certiorari to quash null proceedings; nullities can be quashed at any time
- A court or tribunal has no jurisdiction to entertain an appeal filed out of time without extension of the appeal period
- Order 53 rule 2's six-month limit does not apply to quashing null and void proceedings
Court orders
#- 1.An order of certiorari quashing the proceedings, ruling, judgment and decisions of the 1st respondent given on 19.9.2006 in Elgeyo Marakwet Lower Kabito Minister Appeal No. 249 of 2005
- 2.An order of certiorari quashing the directive of the 2nd respondent dated 26.6.2014 and any other decision and orders giving ownership and/or possession of Plot No. 395 within Lower Kabito Adjudication Section to the interested party, Peter Kiprono Chirchir
- 3.Prayer 2 (prohibition) not issued, found superfluous in light of certiorari
- 4.Costs of the application awarded to the exparte applicant
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules, 2010 (certiorari and prohibition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v District Commissioner, Keiyo & 2 others; Peter Kiprono Chirchir (Interested Party); Exparte Robert Kipsigirio Lotiang [2018] KEELC 317 (KLR)", Case Analysis (2018). Judicial Review proceedings (notice of motion dated 14.10.2014), Eldoret High Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/317/eng@2018-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.