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ELCDismissedJudicial Review application (Notice of Motion dated 1st August 2018)· [2019] KEELC 4128 (KLR)

William Shimonyele Mushiling’ani v Chairman Land Dispute Tribunal (Ileho Division) (Through Attorney General); Albert Mushiuling’ani Shimonyele & another (Interested Parties) [2019] KEELC 4128 (KLR)

High Court of Kenya
19 March 2019
1,310 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to quash a 2011 land tribunal decision because the landowner waited nearly six years, when the law only gives six months to act.

What this practically means

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Executive summary

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The ex parte applicant, William Shimonyele Mushiling'ani, moved the High Court at Kakamega by a notice of motion dated 1st August 2018 under Order 53 rules 1, 2 and 3 of the Civil Procedure Rules, 2010, seeking leave to apply for an order of certiorari to quash the decision of the Ileho Division Land Disputes Tribunal of 21st September 2011 in case No. 6 of 2011, adopted on 6th December 2012 in Kakamega CMCC Miscellaneous Award No. 50 of 2011, concerning land parcel Kakamega/Lubao/456, and for that leave to operate as a stay of execution. The applicant, registered proprietor of the suit land, complained that the tribunal exceeded its mandate by awarding his sons (the interested parties) 2.3 acres, leaving him only 3.4 acres with his wife and twelve other children. He recounted that his earlier appeal, Kakamega High Court Civil Appeal No. 2 of 2013, was struck out on technicality and he was advised to pursue judicial review. The respondent opposed the application as defective and lacking a prima facie case, while the interested parties argued it was time barred and that the tribunal had jurisdiction. Applying section 9(3) of the Law Reform Act and Order 53 Rule 2, the court held that the application, filed on 2nd August 2018, was almost six years out of time, well beyond the six-month limitation. Invoking public policy favouring finality of decisions, the court declined to consider the merits and dismissed the application with costs.

Key legal issues

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01

Whether the certiorari leave application was time barred

Holding

The application was fatally defective as it was filed almost six years after the decision of 6th December 2012, far beyond the six-month limitation period

Reasoning

The court applied section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, 2010, both of which bar the grant of leave for certiorari where the application is made later than six months after the impugned proceeding. The decision was adopted on 6th December 2012 and the application filed on 2nd August 2018, a delay of almost six years. The court declined to consider the merits of the tribunal's decision or its jurisdiction since the limitation bar was dispositive.

p. 2
02

Whether the delay could be excused or the merits of the tribunal decision considered

Holding

No; once the limitation bar was found, the court saw no reason to examine the merits of the decision sought to be quashed or the tribunal's jurisdiction

Reasoning

The court held that the limitation objection was dispositive. Having found the application time barred, the judge expressly declined to enter into the merits and demerits of the tribunal's decision or into whether the tribunal exceeded its jurisdiction in subdividing the suit land. The stringent limitation reflects public policy favouring finality of administrative decisions.

p. 2

Legal principles established

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  • Leave to apply for an order of certiorari must be sought not later than six months after the date of the judgment, order, decree, conviction or other proceeding sought to be quashed
  • Judicial review remedies are exceptional and should not be available to parties who sleep on their rights

Court orders

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  1. 1.The application for leave to apply for an order of certiorari is dismissed with costs

Authorities

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Legislation

  • Law Reform ActSection 9(3)
  • Civil Procedure Rules, 2010Order 53 rules 1, 2 and 3

Cases cited (2)

  • Milka Nyambura Wanderi & Another v Principal Magistrate's Court Murang'a & 4 Others
    (2014) eKLR
  • Republic vs. Mwangi Nguyai & 3 Others Ex parte Haru Nguyai
    (2013) eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 rules 1, 2 and 3 of the Civil Procedure Rules, 2010

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, "William Shimonyele Mushiling’ani v Chairman Land Dispute Tribunal (Ileho Division) (Through Attorney General); Albert Mushiuling’ani Shimonyele & another (Interested Parties) [2019] KEELC 4128 (KLR)", Case Analysis (2019). Judicial Review application (Notice of Motion dated 1st August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4128/eng@2019-03-19

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