[1989] KECA 50 (KLR)
The Court of Appeal held that the six-month limitation period for seeking leave to apply for judicial review under section 9(3) of the Law Reform Act is absolute and cannot be extended by the court through procedural rules. The court found that any attempt to interpret the provision liberally to allow for...
Source-derived case information.
- Citation
- [1989] KECA 50 (KLR)
- Parties
- Appellant: Ako; Respondent: Special District Commissioner Kisumu & Another
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 27 of 1989
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Judicial Review, Leave to Apply Out of Time, Statutory Time Limits, Enlargement of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ako
Appellant
Special District Commissioner Kisumu & Another
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the court can grant leave to apply for judicial review outside the six-month statutory period under section 9(3) of the Law Reform Act.
- 2 Whether procedural rules such as Order 49 rule 5 of the Civil Procedure Rules can override statutory time limits.
Ratio Decidendi
The Court of Appeal held that the six-month limitation period for seeking leave to apply for judicial review under section 9(3) of the Law Reform Act is absolute and cannot be extended by the court through procedural rules. The court found that any attempt to interpret the provision liberally to allow for enlargement of time would contravene the clear statutory language. The court further clarified that reliance on English procedural rules or minority judicial opinions favoring a liberal approach is misplaced, as these do not override the express statutory prohibition in Kenyan law. Consequently, the appeal was dismissed as the application for leave was made outside the statutory period.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(Coram: Nyarangi, Gachuhi JJ A & Kwach AG JA)
CIVIL APPEAL NO 27 OF 1989
AKO.................................................APPLICANT
VERSUS
SPECIAL DISTRICT COMMISSIONER KISUMU
& ANOTHER....................................RESPONDENT
JUDGMENT
(Appeal from the Ruling of the High Court at Kisumu, Omolo J, in High Court Miscellaneous Application No 56 of 1986 dated 30th March 1986)
June 19, 1989 the following Judgment of Court was delivered.
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.
The decision of this court in Girado Othieno Mahaja v Khafulu Khatwalo & anotherCA 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.
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