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ELRCPartially AllowedJudicial Review Application No. 2 'B' of 2007 (originally High Court at Embu)· [2013] KEELRC 516 (KLR)

JOSEPH NGURE GATHUMBI V MWEA DIVISION LAND DISPUTES TRIBUNAL & 2 OTHERS (Judicial Review 5 of 2012) [2013] KEELRC 516 (KLR)

Environment and Land Court
17 January 2013
2,839 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling on a preliminary objection in a judicial review application originally filed in the High Court at Embu in November 2007 by Joseph Ngure Gathumbi, seeking leave to apply for certiorari to quash the award of the Kirinyaga District Land Disputes Tribunal dated 16th October 2006 (ordering subdivision of his Title MWERUA/KAGIO/2907), the decision of the Senior Resident Magistrate at Wang'uru adopting it as judgment on 23rd November 2006, and entries in the land register effecting transfers to the interested parties, together with an order of prohibition and a stay. The interested parties and respondents raised a preliminary objection contending that the leave application was out of time and that the motion was frivolous and procedurally defective. The court held that the six-month limitation in Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules is mandatory and cannot be enlarged or bypassed by allegations that the Tribunal decision was a nullity, nor by the overriding objective principle, judicial review being a special jurisdiction to which the Civil Procedure Rules generally do not apply. Following the Court of Appeal's binding decision in Ako, the court set aside the leave of 21st November 2007 but only insofar as it related to certiorari. It held that prohibition carries no time limit and may proceed independently, dismissing the preliminary objection on that remedy and directing the parties to fix a date for hearing the substantive prohibition application. It made no orders as to costs.

Key legal issues

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01

Mandatory six-month limitation for certiorari leave

Holding

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

Reasoning

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.

p. 4
02

Nullity and inherent jurisdiction as exceptions to the limitation

Holding

The allegation that the Tribunal acted without jurisdiction does not excuse filing outside the six-month period

Reasoning

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.

p. 5
03

Survival of the prohibition remedy

Holding

Prohibition is not subject to the six-month limitation and remains available; the preliminary objection fails on that remedy

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Preliminary objection upheld only as it relates to the remedy of certiorari
  2. 2.Leave granted on 21st November 2007 set aside in so far as it relates to certiorari
  3. 3.Preliminary objection on the remedy of prohibition dismissed
  4. 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. 5.Hearing set for 19th February 2013 with hearing notice to the applicants
  6. 6.No orders as to costs

Authorities

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Legislation

  • Land Dispute Tribunals ActNo. 18 of 1990 (now repealed)
  • Registered Land ActChapter 300 (now repealed)
  • Law Reform ActSection 9(3)
  • Civil Procedure RulesOrder 53 Rule 2
  • Civil Procedure RulesOrder 53 Rule 1(2)
  • Civil Procedure RulesSections 1A and 3A
  • Civil Procedure RulesOrder 49 Rule 5

Cases cited (7)

  • Republic vs Ex-parte Kaka Nzioka
    H.C.C. Misc. Civil Application No. 1217 of 2003
  • Macheo Ltd vs Joseph Wafula Khaoya
    Kitale H.C.C.C. No. 141 of 2007
  • Ako vs Special District Commissioner Kisumu and Another
    [1989] K.L.R. 163
  • Oyoo and Five Others vs Syongo and Two Others
    2005 1 K.L.R. 423
  • Commissioner of Lands vs Kunste Hotel
    C.A. Civil Appeal No. 235 of 1995
  • City Chemist and Another vs Oriental Commercial Bank
    C.A. Civil Appeal No. 302 of 2008 (NBI)
  • Aga Khan Education Service Kenya vs Republic and the A.G
    C.A. Civil Appeal No. 25 of 2003
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (judicial review jurisdiction), Order 53 Civil Procedure Rules

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, "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.