Ako v Special District Commissioner Kisumu & another (Civil Appeal 27 of 1989) [1989] KECA 50 (KLR)

Brief facts The issue before the court was related to the time prescribed by the Law Reform Act (cap 26) for bringing an application for leave to apply for an order of certiorari. Issues i. Whether the six-month limitation period prescribed under section 9(3) of the Law Reform Act for filing an application for leave to apply for an order of certiorari was mandatory and absolute. ii. Whether the court had jurisdiction to enlarge time for filing an application for leave to apply for certiorari beyond the statutory period under the Civil Procedure Rules. iii. Whether provisions of the Civil Procedure Rules on enlargement of time could override or be applied to extend a statutory limitation period set under the Law Reform Act. Held 1. Under section 9(3) of the Law Reform Act (cap. 26) leave shall not be granted unless application for leave is made inside six months after date of judgment. The prohibition was statutory and absolute and was not therefore challengeable under procedural provisions of the Civil Procedure Rules, more specifically Order 49 rule 5 which made provision for the enlargement of time. That was the basis of the contention that the prohibitive nature of section 9(3) was capable of bearing such a liberal interpretation as would make it permissible for the court to enlarge time beyond the period of six months. The prohibition was absolute and any other interpretation or view of the particular provision would be doing violence to the very clear provision of section 9(3). Application refused. Citations Mahaja v Khutwalo [1983] KLR 553 Statutes 1. Law Reform Act (cap 26) section 9(3) 2. Civil Procedure Rules (cap 21 Sub Leg) order XLIX rule 3. Rules of the Supreme Court [UK] JUDGMENT 1. It is plain that under sub-section (3) of section 9 of the Law Reform Act Cap 26 leave shall not be granted unless application for leave is made inside six months after the date of the judgment. The prohibition is statutory and is not therefore challengeable under procedural provisions of the Civil Procedure Rules, more specifically order 49 rule 5 which permits for enlargement of time. That is the basis of the contention that the prohibitive nature of sub-section (3) of section 9 of the Act is capable of bearing such a liberal interpretation as would make it permissible for the court to enlarge time beyond the period of six months. We have no doubt that the prohibition is absolute and any other interpretation or view of the particular provision would be doing violence to the very clear provision of subsection (3) of section 9 of the Law Reform Act. 2. The decision of this court in Girado Othieno Mahaja v Khafulu Khatwalo & another CA No 19 of 1987 which was cited by Mr Okech, learned counsel for the appellant, is in conformity with our view of correct interpretation of the material section. The decision does not therefore advance the appellant’s case. https://new.kenyalaw.org/akn/ke/judgment/keca/1989/50/eng@1989-06-19 2

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3. The views of Hancox JA in which he leaned towards a liberal construction were not essential to the decision, were not expressly shared by the majority and were based on the rules of the Supreme Court of England which do not automatically apply to this jurisdiction. In the result the appeal fails and is dismissed with costs. That is the order of the court. DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF JUNE, 1989. J.O. NYARANGI ................................ JUDGE OF APPEAL J.M. GACHUHI ................................ JUDGE OF APPEAL R.O. KWACH ................................ AG. JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/1989/50/eng@1989-06-19 3

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