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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the certiorari leave application was time barred
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
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.
Whether the delay could be excused or the merits of the tribunal decision considered
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
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.
Legal principles established
#- 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
#- 1.The application for leave to apply for an order of certiorari is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.