[2001] KEHC 129 (KLR)
The application for certiorari was filed outside the statutory six-month period prescribed by Section 9(3) of the Law Reform Act. The court has no jurisdiction to extend this period, and the fact that leave was granted ex parte does not cure the defect of lateness. The statutory limitation is mandatory and...
Source-derived case information.
- Citation
- [2001] KEHC 129 (KLR)
- Parties
- Plaintiff: George Amara; Defendant: The Registrar of Societies
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 865 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Limitation Period for Certiorari Application
- Outcome
- application struck out with costs
- Judges
- ARM Visram
- Legal Topics
- Judicial Review, Certiorari, Limitation Periods, Leave to Apply, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Amara
Plaintiff
The Registrar of Societies
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Limitation Period for Certiorari Application
Legal Issues
- 1 Whether the application for certiorari was filed within the statutory six-month limitation period under Section 9(3) of the Law Reform Act.
- 2 Whether the court has jurisdiction to extend time for filing an application for certiorari beyond the statutory period.
- 3 Whether the grant of leave ex parte can cure the defect of filing out of time.
Ratio Decidendi
The application for certiorari was filed outside the statutory six-month period prescribed by Section 9(3) of the Law Reform Act. The court has no jurisdiction to extend this period, and the fact that leave was granted ex parte does not cure the defect of lateness. The statutory limitation is mandatory and non-compliance is fatal to the application. As such, the application is incompetent and must be struck out with costs.
Court Disposition
application struck out with costs
Orders
- The application is struck out for being filed outside the statutory period.
- The applicant shall pay the costs of the application.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. NO. 865 OF 1999
GEORGE AMARA………………………………………..….PLAINTIFF
V E R S U S
THE REGISTRAR OF SOCIETIES………………………DEFENDANT
R U L I N G
Section 9(3) of the Law Reform Act (Cap. 26) provides as follows:-
“9……… (3) In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceedings or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired”.
The decisions of the Registrar of Societies sought to be questioned in this application were made on 22nd July, 1997 and 11th February, 1998. This application was filed on 28th July, 1999. It was obviously out of time. The case ofWilson Osolo v. John Odhiambo OcholaNAIROBI C.A. Civil Appeal No. 6 of 1995 is quite clear that there is no provision for extending time under Section 9(3) of Cap. 26. The Applicant, having failed to comply with a preliminary requirement in this respect, was not entitled to bring this application. The fact that leave was granted by this Court to bring the application does not of itself alter the situation. It is noted that applications for leave in these matters are made ex parte. If the Respondent should consider it necessary to challenge the leave he may subsequently apply for it to be set aside as was stated in R. v. Communications Commission of Kenya & 2 Others ex parte East African Televisions Network LtdNAIROBI C.A. Civil Appeal No. 175 of 2000 (Unreported) (OMOLO, TUNOI & KEIWUA, JJ.A). Also I am of the view that the matter may be determined at trial as a preliminary objection. This was done by PALL, J. (as he then was) inRaila Odinga & 6 Others v. Nairobi City CouncilNAIROBI H.C. MISC. CIV. APP. NO. 899 of 1993 (unreported). I also had the opportunity to consider the matter in Samuel Amoke Nyakeriga & 6 Others v. The United Nations High Commissioner for Refugees & 6 OthersNAIROBI H.C. MISC. APP. NO. 638 of 2001 in which the Applicants came before me seeking leave to bring judicial review proceedings. In that case, I observed that since leave is granted ex parte, the Respondent should be given an opportunity to challenge the order for leave and if it is found that leave should not have been granted in the first place, the judicial review proceedings should not be allowed to continue. This application is outside the statutory period and cannot be saved in any way. It is hereby struck out with costs.
DATED and DELIVERED at NAIROBI this 24th day of September, 2001.
ALNASHIR VISRAM
JUDGE