[2022] KEHC 1427 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

JUDICAL REVIEW APPLICATION N0. E007 OF 2021

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE PROCEEDINGS FOR ORDERS OF CERTIORARI AND MANDAMUS

BETWEEN

MUNYUA MARGARET NYAMBURA........1ST APPLICANT

KARARI WAIRIMU RAHAB.......................2ND APPLICANT

KIVANDI BETSY MBITHE...........................3RD APPLICANT

MWANIA ROSE MUNYWOKI.....................4TH APPLICANT

VERSUS

KARATINA UNIVERSITY.................................RESPONDENT

REGISTRAR, ACADEMIC RESEARCH AND STUDENTS’

AFFAIRS KARATINAUNIVERSITY...INTERESTED PARTY

RULING

1. The exparte applicants were masters` students at Karatina University, the respondent herein. On the 20th December 2019, the respondent made a decision to discontinue the applicants` studies under the masters` program of the university. The applicants felt aggrieved and came to this court with an application dated 17th November 2021 seeking leave to institute proceedings for:

(a) An order of certiorari to bring into this Honourable Court and quash the decision of the interested party contained in the letters addressed to the applicants dated 20th December 2019 withdrawing the admissions of the applicants into the post graduate programme;

(b) An order of mandamus directed to the respondent to reinstate the applicants into the post graduate programme.

(c) That costs of the application be provide for.

2. The court perused the application and noted that the decision sought to be quashed was made on 20/12/2019. Order 53 Rule 2 of the Civil Procedure Rules requires that such an application be made within 6 months of the making of a decision. The application in this case was being made 2 years after the decision had been made. It appeared to the court that the application was time barred. The court thereupon made orders for counsel for the applicants to address the court on that aspect of the case.

3. The applicants, of course after realizing their mistake, then filed an application dated 8th December 2021 seeking for orders for extension of time to file judicial review proceedings and that the application dated 17th November 2019 be deemed as filed within time. The said application was supported by the affidavit of the 1st respondent wherein she deposed that after the decision of 20/12/2019 was made they began to engage the Vice Chancellor of the respondent with a view to settling the matter amicably. That a special senate meeting was held on 30/3 /2021 whereby the senate upheld the decision to withdraw the applicants` admission. That the applicants received formal communication from the respondent vide letters dated 3/8/2021. That in their view the computation of time for purposes of their suit should begin from on 3/8/2021 when the respondent made formal communication to the applicants and not 20/12/2019.

The respondent did not file any response to any of the applications.

Determination -

4. The main issue for determination is whether the application for leave to institute judicial review proceedings is time barred and whether the court has power to extend time to file judicial review proceedings.

5. The substantive law governing an application for judicial review is Section 9(3) of the Law Reform Act which stipulates that:-

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 judgment, order, decree, conviction or other proceeding 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.

6. The said section is replicated inOrder 53 Rule 2 of the Civil Procedure Rules which provides that:-

Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding 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 a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

7. The provisions are quite clear that upon the lapse of six months from the date of any judgment, order, decree, conviction or other proceeding, the court is not in a position to grant leave to apply for an order of certiorari aimed at quashing the relevant judgment, order, decree, conviction or other proceeding. Therefore, the application ought to be filed within six months from the time the decision to be quashed is made.

8. A similar issue as in this application was dealt with by Mativo J. in Republic vs Council of Legal Education & Another Ex parte Sabiha Kassamia & Another [2018] eKLR where the court was considering an application whether it has power to extend time to file judicial review application. The learned Judge cited the decision of the Court of Appeal in the case of Wilson Osolo vs John Ojiambo Ochola & Another [1995]eKLRwhere the Court held that there was no power to extend time to file judicial review application under the Law Reform Act and under Order 53 Rule 2 of the Civil Procedure Rules. The appeal court in the case cited had held that:

It can readily be seen that Order 53 Rule 2 (as it then stood) is derived verbatim from Section 9(3) of the Law Reform Act. Whilst the time limited for doing something under the Civil Procedure Rules can be extended by an application under Order 49 of the Civil Procedure Rules that procedure cannot be availed for the extension of time limited by statute, in this case, the Law Reform Act. There is no provision for extension of time to apply for such leave in the Limitation of Actions Act (Cap 22, Laws of Kenya) which gives some limited right for extension of time to file suits after expiry of a limitation period. But this Act has no relevance here.

Mativo J. upon citing some Court of Appeal decisions went on to hold that:

The above decisions were rendered by the Court of Appeal. They are binding to this court. I find no reason to depart from them. My finding is reinforced by the clear language of the above provisions.

9. A similar view was held in Republic vs Director of Land Adjudication and Settlement & 2 Others [2017] eKLR where Kemei J. stated that:-

Section 9 of the Law Reform Act, Cap 26 is very explicit in the time frame within which an order for certiorari may be applied and has similar provisions as the Civil Procedure Rules aforestated. Section 9(3) of the Law Reform Act read together with Order 53 Rule 2 are couched in mandatory terms; Leave shall not be granted unless an application for leave is made not later than 6 months after the date of the decision.

10. I am in total agreement with the views expressed above on the mandatory nature of section 9 of the Law Reform Act. In the instant application, it is clear that the decision that the applicants seek that it be quashed is the one dated 20th December 2019. The application should therefore have been filed within six months of the making of the decision on 20th December 2019. The applicants have not shown that they were pursuing an appeal when they subsequently engaged the university to find an amicable solution to the matter. Therefore time started running from 20th December, 2019 and not on 3rd August, 2021 as contended by the applicants. I accordingly hold that the application for leave having been filed on 25/11/2021 was brought to court out of time and is thereby time barred. The court has no power to extend time to file judicial review proceedings.

11. The upshot is that there is no merit in the application dated 26th November 2021 seeking for orders for extension of time to file judicial review proceedings. The application for leave to institute judicial review proceedings dated 17thth November 2021 is time barred. Both applications are thereby dismissed with no order as to costs.

DELIVERED, DATED AND SIGNED AT NYERI THIS 17TH DAY OF MARCH, 2022

J. N. NJAGI

JUDGE

In the presence of:

Mr. Magina : - for Applicants

Court Assistant: Kinyua

30 days R/A.