[2006] KEHC 403 (KLR)
The application for leave to apply for certiorari was filed nearly eight months after the tribunal's decision, exceeding the six-month limitation period prescribed by Order 53 rule 2 of the Civil Procedure Rules. The rule is mandatory, and non-compliance is fatal to the application. Since the application was...
Source-derived case information.
- Citation
- [2006] KEHC 403 (KLR)
- Parties
- Applicant: Joseph Getama Roswe; Respondent: Ntimaru Division Land Disputes Tribunal; Respondent: Kehancha Resident Magistrate’s Court
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 15 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review (certiorari and Prohibition)
- Outcome
- application dismissed with costs
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Limitation Periods, Land Disputes, Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Getama Roswe
Applicant
Ntimaru Division Land Disputes Tribunal
Respondent
Kehancha Resident Magistrate’s Court
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review (certiorari and Prohibition)
Legal Issues
- 1 Whether leave to apply for an order of certiorari can be granted when the application is filed more than six months after the tribunal's decision.
- 2 Whether an order of prohibition can be granted when leave for certiorari is refused due to lapse of time.
Ratio Decidendi
The application for leave to apply for certiorari was filed nearly eight months after the tribunal's decision, exceeding the six-month limitation period prescribed by Order 53 rule 2 of the Civil Procedure Rules. The rule is mandatory, and non-compliance is fatal to the application. Since the application was time-barred, leave could not be granted. Furthermore, since leave for certiorari was refused, it would be illogical to grant an order of prohibition in relation to the same tribunal award. Consequently, the entire application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Misc Appli 15 of 2006
JOSEPH GETAMA ROSWE ..…………………………………………….. APPLICANT
AND
NTIMARU DIVISION LAND DISPUTES TRIBUNAL ………...….. 1ST RESPONDENT
KEHANCHA RESIDENT MAGISTRATE’S COURT ………...…...2ND RESPONDENT
RULING:
The applicant seeks leave to apply for an order of certiorari to remove to this court and quash the decision of Ntimaru Division Land Disputes Tribunal Case No.001 of 2005. He also seeks for an order of prohibition to prohibit the 2nd Respondent Resident Magistrate’s court Kehancha from adopting, enforcing or executing the said award of the 1st respondent. He prays for leave, if granted to operate as a stay.
I have considered the application. The award the applicant seeks to be quashed was made on 18th may 2005 almost 8 months ago. Order 53 rule 2 CPR clearly provides that court cannot grant leave unless the application for leave is made not later than 6 months after the decision was made. The said rule states as follows:-
Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction of any other proceedings 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 time is limited by law for bringing the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.
Clearly therefore the application offends the provisions of that rule as it was filed after expiry of six months. Those provisions are coached in Mandatory terms and non-compliance of the same makes fatal to the application.
As for prohibition though there is no time prescribed once the court declines to grant leave for the application to apply for certiorari it makes no sense to issue orders of prohibition.
In the circumstances the application is dismissed with costs.
Dated 1st March 2006.
KABURU BAUNI
JUDGE
Cc – Mobisa
N/A for Applicant