REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU MISC. CIVIL APPLICATION NO. 17 OF 2019 IN THE MATTER OF THE COMMON RULES AND REGULATIONS FOR UNDERGRADUATE EXAMINATION GOVERNING MASENO UNIVERSITY AND IN THE MATTER OF AN APPLICATION BY RAPHAEL MUTINDA KYALO FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI PROHIBITION AND MANDAMUS AND IN THE MATTER OF THE FAIR ADMINISTRATION ACT AND ORDERS 53 OF THE CIVIL PROCEDURE RULES AND IN THE MATTER OF THE DECISION OF THE SENATE DATED 8TH FEBRUARY 2019 AND IN THE APPEAL COMMITTEE OF MASENO UNIVERSITY CONTAINED IN THE LETTER DATED 2ND APRIL 2019 REPUBLI.........................................................................................................APPLICANT RAPHAEL MUTINDA KYALO.................................................... EX-PARTE APPLICANT VERSUS MASENO UNIVERSITY..............................................................................RESPONDENT RULING The issue for determination before me is the Preliminary Objection lodged by the Respondent, MASENO UNIVERSITY. 1. In a nutshell, the Respondent’s position was that the Judicial Review application herein is statute barred. 2. The basis for that assertion was that the application was brought after the lapse of six (6) months from the date of the decision which the Applicant, RAPHAEL MUTINDA KYALO seeks to challenge. 3. From the Applicant’s Statement of Facts dated 1 st October 2019, it is clear that the decisions which are the subject matter of these proceedings were rendered on 8th February 2019 and 2nd April 2019. 4. According to the Respondent, the Applicant should have instituted Judicial Review proceedings not later than 1st October 2019. 5. The Petitioner submitted that although Order 53 Rule 2 of the Civil Procedure Rules stipulates that applications for Judicial Review Orders such as of Certiorari have to be brought within the period of 6 months, the said rule;
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“….. does not specifically indicate that six months have to be clear days.” 6. The Applicant called to his aid, the provisions of Order 50 Rule 8 of the Civil Procedure Rules. Being of that persuasion, the Applicant submitted that during computation of time, the “first day” should not be included. 7. He identified the said “first day” as being the 2nd day of April 2019; adding that time ought to run from 3rd April 2019. 8. It is thus common ground that an application for leave to institute proceedings for certiorari ought to be made within 6 months from the date of the decision which the Applicant desires to have quashed. 9. The said rule provides as follows; “Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.” 10. According to the Applicant, the date when the decision was made must be excluded when computing the period of six months. 11. In the case of NYAGAH Vs REPUBLIC (1990) eKLR 291, Bosire J. (as he then was) said; “Section 9 (3) of the Law Reform Act has a total prohibition to the granting of leave after the expiration of a 6 months duration, after the order or decree or judgment under attack. The provision is conclusive. Had it been the intention of the legislature to confer on the Court the power to enlarge the time specified for bringing an application for leave, it would have said so or made provision under Section 9 (1) of the Law Reform Act, for the making of the rules in that regard.” 12. I find that the provisions of Order 53 Rule 2 of the Civil Procedure Rules, similarly lack provision for enlargement of time. 13. In that regard, the Court of Appeal noted as follows in the case of WILSON OSOLO V JOHN OJIAMBO OCHOLA & ANOTHER (1999) eKLR; “It can readily be seen that Order 53 Rule 2 ….. is derived verbatim from Section 9 (3) of the Law Reform Act…..” 14. I am emphasizing the fact that the provisions of Order 53 Rule 2 are couched in mandatory terms. 15. The Applicant drew attention to the following words of the Court of Appeal in REPUBLIC Vs MASENO UNIVERSITY STAFF DISCIPLINARY COMMITTEE & ANOTHER [2009] eKLR “The decision of the Council is not an order of the Court, a judgment, decree or proceedings. Besides, if such decision is found to be a nullity then an order of certiorari should lie even if challenged after 6 months. I subscribe to the above view that a nullity cannot be subject of the 6 months period because it does not exist, and so can be challenged outside the 6 months.” 16. In that case the learned Judges of Appeal held the view that the Respondents had acted without jurisdiction. 17. In the case before me, there is absolutely no assertion that the Respondents had acted without jurisdiction. 18. The foundation of the Applicant’s application was that his legitimate expectation to a fair administrative action was breached. His complaint was that the Respondents failed to follow the laid down rules and regulations. Therefore, I find that this case is distinguishable from the case in which a nullity existed, due to actions which had been undertaken without jurisdiction. 19. It is well settled that when any tribunal or court lacks Jurisdiction, that which it does amounts to nought.
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20. I therefore appreciate why the Court of Appeal made the pronouncement in respect to the decision that had been rendered by the Maseno University Staff Disciplinary Committee. 21. Although I would wish to add that because a lack of jurisdiction is one of the grounds upon which the court can quash the decision of a tribunal, court or any other organ charged with adjudication, I have the distinct feeling that the Court of Appeal may have stretched their reasoning deliberately, because the Court was perhaps intent on doing substantive justice. 22. As regards the question about excluding the date when the decision was made, when computing the period of 6 months, I find that the Applicant cannot be right. 23. Order 53 rule 2 expressly states that the 6 months is to be Computed from the date of Judgment. 24. And once the said period of 6 months has lapsed, the court shall not grant leave to a party to apply for an order of certiorari. That is the clear meaning of the phrase; “…… leave shall not be granted unless the application for leave is made not later than six months after the date of that judgement, order, decree, conviction or other proceedings ……” 25. I therefore uphold the Preliminary Objection and pronounce that the Applicant moved the court more than 6 months after the date of the decision which he was desirous of asking the court to quash. The action is statute barred and cannot therefore be sustained. DATED, SIGNED and DELIVERED at KISUMU This 3rd day of December 2020 FRED A. OCHIENG JUDGE
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