[2006] KEHC 717 (KLR)
The court found that the application for leave to apply for an order of certiorari was filed within five months and eighteen days from the date of the challenged decision, thus complying with the six-month statutory period under Order 53 rule 2 of the Civil Procedure Rules. The objector's calculation of nine months...
Source-derived case information.
- Citation
- [2006] KEHC 717 (KLR)
- Parties
- Applicant: Njue Kiriru; Respondent: Person Njeru; Respondent: The Minister for Lands & Settlement
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 472 of 2004
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JW Nyamu
- Legal Topics
- Judicial Review Timelines, Certiorari Orders, Preliminary Objection, Leave to Apply, Order 53 Rule 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njue Kiriru
Applicant
Person Njeru
Respondent
The Minister for Lands & Settlement
Respondent
Procedural Posture
Judicial Review / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application for leave to apply for an order of certiorari was filed within the statutory six-month period.
- 2 Whether the Republic is properly described as the applicant in the Notice of Motion.
Ratio Decidendi
The court found that the application for leave to apply for an order of certiorari was filed within five months and eighteen days from the date of the challenged decision, thus complying with the six-month statutory period under Order 53 rule 2 of the Civil Procedure Rules. The objector's calculation of nine months was incorrect. Additionally, the court held that the Republic was properly described as the applicant in the Notice of Motion, and the objection on this ground was factually baseless. Accordingly, the preliminary objection was dismissed with costs to the applicant.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
IN THE MATTER OF JUDICIAL REVIEW UNDER ORDER LIII OF THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF THE MINISTRIES APPEAL CASE NO. 256 OF 2001
BETWEEN
NJUE KIRIRU ......................................................................... APPLICANT
VERSUS
PERSON NJERU ....................................................... 1ST RESPONDENT
THE MINISTER FOR LANDS & SETTLEMENT.......2ND RESPONDENT
RULING
This ruling relates to a preliminary objection dated 10th May 2006. The only point for determination is whether leave was applied for within the period stipulated for certiorari orders, namely 6 months. The objector claims that leave was obtained 9 months after the decision.
I have perused the record and the record supports the applicant’s position that the challenged decision was made on 29th October, 2003 and the application for leave was filed on 16th April 2004. This adds upto 5 months and 18 days which period is well within 6 months.
Order 53 rule 2 provides:
“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 the judgment, order, decree, conviction or other proceedings or such short period as may be prescribed under any written law.
It is clear to my mind that it is the application for leave which must be filed within 6 months. The objector has clearly misdirected himself on this, and also on my brother, Justice Sergon’s ruling in MICHAEL OYUGI & 4 OTHERS v BUNDALANGI LANDS DISPUTES TRIBUNAL & ANOTHER(2005) e KLR HCCC 8 of 2002 because the learned judge reproduces what the rule says.
The other objection that the Republic is not an applicant is not factually correct because the heading does describe the Republic as the applicant in the Notice of Motion.
For the above reasons the objection is dismissed with costs to the applicant in any event.
It is so ordered.
DATED and delivered at Nairobi this 15th day of December, 2006.
J.G. NYAMU
JUDGE