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ELRCDismissedJudicial Review application by Notice of Motion dated January 13, 2023 (Eldoret)· [2023] KEELRC 2795 (KLR)

Republic v Teachers Service Commission & another; Wangila (Exparte Applicant) (Miscellaneous Application E006 of 2023) [2023] KEELRC 2795 (KLR)

High Court of Kenya
2 November 2023
MOM. Onyango
2,079 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 review a teacher's dismissal because the application was filed months after the strict six-month legal deadline expired.

What this practically means

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Executive summary

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The ex parte applicant, Aquinas Wanjala Wangila, moved the court by Notice of Motion dated January 13, 2023 seeking leave to apply for judicial review orders of certiorari to quash his dismissal from the Teachers Service Commission on July 11, 2012 and the Review Committee's decision upholding that dismissal, together with declarations that the dismissal and its upholding were procedurally unfair, and mandamus to compel his reinstatement. He argued that his dismissal violated article 47 of the Constitution, sections 41, 43, 44(4), 45(2) and 20 of the Employment Act and the TSC Code of Regulations, and that the review of his case was unduly delayed for seven years. The respondents opposed, contending among other things that the application was time barred under section 9(2) of the Law Reform Act and section 90 of the Employment Act and that the dispute was a private employment matter. The court framed the determination around the applicable law on leave under order 53. Relying on the Court of Appeal's decision in Ako v Special District Commissioner Kisumu, the court held that the six-month limitation in section 9(3) of the Law Reform Act and order 53 rule 2 is mandatory and cannot be enlarged. Measuring from the Review Committee's decision of March 23, 2022, the six months expired on September 23, 2022, yet the application was filed on February 2, 2023. Leave was therefore refused and the application was dismissed with no orders for costs.

Key legal issues

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01

Time limitation for leave to apply for certiorari

Holding

The impugned review decision was made on March 23, 2022; the six-month period expired on September 23, 2022, but the application was dated January 13, 2023 and filed February 2, 2023, outside the statutory window

Reasoning

Order 53 rule 2 and section 9(3) of the Law Reform Act prohibit the grant of leave for certiorari unless the application is made within six months of the impugned proceeding. The Court of Appeal in Ako v Special District Commissioner Kisumu held that this prohibition is statutory and cannot be circumvented by provisions permitting enlargement of time. The applicant's application was therefore out of time and the court had no discretion to grant 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

Court orders

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  1. 1.The application dated January 13, 2023 seeking leave to apply for judicial review is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3
  • Civil Procedure Rules, 2010order 53 rules 1, 2 and 3
  • Law Reform Actsection 9
  • Employment Actsections 41(1), 44(4), 43, 20 and 45(2)
  • Teachers Service Commission Code of Regulations for Teachers, 2015rules 139, 145, 146, 149, 151, 153, 154, 155 and 156
  • Constitution of Kenya, 2010articles 47 and 159(2)(d)

Cases cited (1)

  • Ako v Special District Commissioner Kisumu & another
    [1989] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3 of the Civil Procedure Act; order 53 rules 1 and 3 of the Civil Procedure Rules, 2010; section 9 of the Law Reform Act

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, "Republic v Teachers Service Commission & another; Wangila (Exparte Applicant) (Miscellaneous Application E006 of 2023) [2023] KEELRC 2795 (KLR)", Case Analysis (2023). Judicial Review application by Notice of Motion dated January 13, 2023 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2795/eng@2023-11-02

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