[2006] KEHC 64 (KLR)
The court held that the application for leave to apply for certiorari was filed after the expiry of the six-month 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 award sought to be quashed was made almost eight months...
Source-derived case information.
- Citation
- [2006] KEHC 64 (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
- Miscellaneous Application 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, 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 can be granted to apply for certiorari to quash the tribunal's decision made more than six months prior.
- 2 Whether an order of prohibition can issue when leave for certiorari is denied due to lapse of time.
Ratio Decidendi
The court held that the application for leave to apply for certiorari was filed after the expiry of the six-month 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 award sought to be quashed was made almost eight months prior to the application, the court could not grant leave. Furthermore, since leave for certiorari was denied, it was not logical to issue an order of prohibition. The application was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISII
MISCELLANEOUS APPLICATION 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