JOSEPH NGURE GATHUMBI V MWEA DIVISION LAND DISPUTES TRIBUNAL & 2 OTHERS (Judicial Review 5 of 2012) [2013] KEELRC 516 (KLR)
The bottom line
#A Kenyan court confirmed that certiorari to overturn a tribunal land decision must be sought within six months, but a prohibition claim has no deadline.
What this practically means
#Executive summary
#Key legal issues
#Mandatory six-month limitation for certiorari leave
The six-month limit is statutory, mandatory and not challengeable under procedural provisions permitting enlargement of time; leave granted a year after the award was invalid
The Court of Appeal in Ako held the prohibition in Section 9(3) of the Law Reform Act to be absolute, not amenable to Order 49 Rule 5 enlargement. The decision sought to be quashed was issued on 16th October 2006 and adopted on 23rd November 2006, while leave was sought on 21st November 2007. Following Ako, which binds the court, the leave was well beyond the statutory period and was set aside, but only as it relates to certiorari.
Nullity and inherent jurisdiction as exceptions to the limitation
The allegation that the Tribunal acted without jurisdiction does not excuse filing outside the six-month period
The applicant argued that a null decision cannot attract the time bar. The court acknowledged conflicting High Court opinions but preferred the binding Court of Appeal position that the prohibition is absolute. The argument that the court could invoke inherent jurisdiction to quash illegality was rejected, as was reliance on the overriding objective, which does not uproot established precedent.
Survival of the prohibition remedy
Prohibition is not subject to the six-month limitation and remains available; the preliminary objection fails on that remedy
Relying on Wade and Forsyth's Administrative Law, the court noted that certiorari and prohibition frequently go hand in hand but either may be sought by itself. Prohibition is strictly concerned with excess of jurisdiction and carries no statutory time limit. The applicant may therefore canvass the prohibition remedy in the substantive application notwithstanding the collapse of the certiorari leave.
Legal principles established
#- The six-month limitation for seeking leave to apply for certiorari under Section 9(3) of the Law Reform Act and Order 53 Rule 2 is mandatory and cannot be enlarged
- The Civil Procedure Rules do not apply in judicial review proceedings, so the overriding objective cannot defeat the statutory limitation
- Certiorari and prohibition may be sought independently; prohibition has no statutory time limit and may be pursued even where certiorari is time-barred
- Leave granted outside the statutory period can be set aside on a preliminary objection
Court orders
#- 1.Preliminary objection upheld only as it relates to the remedy of certiorari
- 2.Leave granted on 21st November 2007 set aside in so far as it relates to certiorari
- 3.Preliminary objection on the remedy of prohibition dismissed
- 4.Parties directed to take a date for hearing of the substantive application on prohibition as prayed for in the Notice of Motion dated 10th December 2007
- 5.Hearing set for 19th February 2013 with hearing notice to the applicants
- 6.No orders as to costs
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (judicial review jurisdiction), Order 53 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOSEPH NGURE GATHUMBI V MWEA DIVISION LAND DISPUTES TRIBUNAL & 2 OTHERS (Judicial Review 5 of 2012) [2013] KEELRC 516 (KLR)", Case Analysis (2013). Judicial Review Application No. 2 'B' of 2007 (originally High Court at Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/516/eng@2013-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.