[1997] KECA 67 (KLR)
The Court of Appeal held that the statutory requirement under the Law Reform Act and Order 53 Rule 2 is mandatory, and any application for leave to apply for certiorari must be made within six months of the date of the award or order. Since the respondent's application was filed well outside the prescribed period,...
Source-derived case information.
- Citation
- [1997] KECA 67 (KLR)
- Parties
- Appellant: Kimanzi Mboo; Respondent: David Mulwa Muthusi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 233 of 1996
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- RO Kwach, GS Pall
- Legal Topics
- Judicial Review Timelines, Certiorari, Land Dispute Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimanzi Mboo
Appellant
David Mulwa Muthusi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether leave to apply for certiorari can be granted outside the six-month statutory period.
- 2 Whether the High Court's order quashing the Land Dispute Tribunal award was valid.
Ratio Decidendi
The Court of Appeal held that the statutory requirement under the Law Reform Act and Order 53 Rule 2 is mandatory, and any application for leave to apply for certiorari must be made within six months of the date of the award or order. Since the respondent's application was filed well outside the prescribed period, the High Court had no jurisdiction to grant leave. Consequently, both the order granting leave and the order quashing the Land Dispute Tribunal award were nullities. The appeal was allowed, and the orders of the High Court were set aside.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The order for leave to apply for certiorari is declared a nullity.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
CIVIL APPEAL 233 OF 1996
KIMANZI MBOO.................................................................APPELLANT
AND
DAVID MULWA MUTHUSI.................................................RESPONDENT
(An appeal from the decree/judgment of the High Court of Kenya
at Machakos(Hon. Mwera J) delivered on 11th September, 1996
in
H.C.C.MISC. APPLICATION NO. 52 OF 1996
********************************
JUDGMENT OF THE COURT
The respondent applied on 9. 5.1996 for leave to apply for an order of certiorari to quash an award made on 9. 10. 1994 by the land Dispute Tribunal. Under the Law Reform Act as well as under order 53 r. 2, no application for leave can be entertained unless it is made within six months of the date of the award or order. The application for leave having bee granted when it had been made well out of the prescribed period of six months, no leave could have been granted. The order for leave is therefore a nullity and so is the order quashing the award. The appeal is therefore allowed with no order as to costs.
Dated this 25th day of September 1997.
R. O. KWACH
……………………..
JUDGE OF APPEAL
R. S. C. OMOLO
…………………….
JUDGE OF APPEAL
G. S. PALL
…………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR