In re Katana Charo [2018] KEELC 2628 (KLR)
The bottom line
#A Kenyan court struck out a judicial review suit filed four years late, confirming the six-month filing deadline is mandatory and counted from the decision date.
What this practically means
#Executive summary
#Key legal issues
#Whether the judicial review application was filed outside the statutory six-month limitation period
Yes. The order sought to be quashed was issued on 30th September, 1996 and the Notice of Motion was dated 16th March, 2000, filed four years later, contravening Order 53 rule 2 which is set in mandatory terms.
Order 53 rule 2 of the Civil Procedure Rules, replicated in Section 9(3) of the Law Reform Act, requires that leave to apply for certiorari be sought not later than six months after the date of the proceeding. The time runs from the date of the decision, not from the applicant's awareness of it, as held by Odunga J in the Gilbert Miya case. The suit here was filed four years after the award was adopted, far beyond the mandatory window, rendering the pleadings incurably defective.
Whether the relief of prohibition escapes the six-month limitation
No. Order 53 rule 2 treats mandamus, certiorari and prohibition alike, and prohibition is unavailable where the decision has already been made and adopted by the court.
The Applicant argued that prohibition was not time barred. The court held that Order 53 rule 2 governs all three prerogative writs in the same manner. Relying on the Gathenji decision, the court noted that prohibition looks to the future and is not efficacious against a decision already made. Since the court had already adopted the Land Disputes Tribunal award, prohibition could not lie.
Legal principles established
#- Applications for judicial review must be commenced within six months from the date when the grounds for the application arose, not from the date the applicant became aware of the decision
- Order 53 rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act are mandatory provisions set in mandatory terms
- Order 53 rule 2 applies equally to the writs of mandamus, certiorari and prohibition
Court orders
#- 1.The Applicant's pleadings and/or suit are struck out
- 2.All consequential orders issued herein are discharged and/or vacated
- 3.The Interested Parties shall have costs
- Jurisdiction invoked
- Sections 3A of the Civil Procedure Act (Cap. 21), Order 53 rule 2 and Order 51 rule 1 of the Civil Procedure Rules; Section 9(3) of the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Katana Charo [2018] KEELC 2628 (KLR)", Case Analysis (2018). Judicial Review Application (Notice of Motion dated 16th March, 2000; Interested Parties' Amended Notice of Motion dated 2nd August, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2628/eng@2018-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.