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Court of AppealPartially AllowedCivil Appeal 233 of 1996· [1997] KECA 67 (KLR)

Kimanzi Mboo v David Mulwa Muthusi

Court of Appeal of Kenya
25 September 1997
RKR. O. KwachROR. S. C. OmoloGPG. S. Pall
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The bottom line

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Kenya's Court of Appeal confirmed that judicial review applications to quash decisions must be filed within six months, or everything that follows is void.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Kwach, Omolo and Pall JJA) allowed the appellant's appeal against a decision of the High Court at Machakos (Mwera J) delivered on 11 September 1996 in H.C.C. Misc. Application No. 52 of 1996. The respondent had applied on 9 May 1996 for leave to apply for an order of certiorari to quash an award made on 9 October 1994 by the Land Dispute Tribunal. The Court held that under both the Law Reform Act and Order 53 rule 2, no application for leave could be entertained unless made within six months of the date of the award or order. The respondent's application had been made well outside that prescribed period, so the High Court had no power to grant leave. The order granting leave was therefore a nullity, and the consequential order quashing the Tribunal award was equally a nullity. The Court of Appeal allowed the appeal and made no order as to costs, meaning each party bears their own costs. The judgment binds lower courts to treat the six-month limitation period for applications for leave to apply for certiorari as mandatory: leave granted out of time is void, and every order founded on such leave falls with it. The judgment is a single judgment of the whole court with no separate opinions or dissents, and no external authorities were cited.

Key legal issues

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01

Whether leave to apply for certiorari can be granted outside the six-month limitation period

Holding

No. The six-month period under the Law Reform Act and Order 53 rule 2 is mandatory; an application for leave made outside it cannot be entertained, and leave so granted is a nullity.

Reasoning

The respondent applied on 9 May 1996 for leave to apply for certiorari to quash an award made on 9 October 1994 by the Land Dispute Tribunal. That application was made well beyond the six-month period prescribed by the Law Reform Act and Order 53 rule 2. Since the statute and rules bar entertainment of out-of-time applications for leave, the High Court had no power to grant the leave. The leave order was therefore a nullity, and the consequential order quashing the award fell with it.

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02

The validity of the High Court's order quashing the Land Dispute Tribunal award

Holding

The order quashing the award was a nullity because it rested on a leave order that was itself a nullity.

Reasoning

Because the grant of leave was ultra vires the limitation provisions, the entire judicial review process was founded on a void order. The court therefore set aside the High Court's decision quashing the Tribunal award, restoring the award's validity. The appeal was allowed, though without costs.

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Legal principles established

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  • An application for leave to apply for an order of certiorari must be made within six months of the date of the award or order; leave granted out of time is a nullity, as is any order made in pursuance of it.
  • Where leave to apply for judicial review is granted when the application was made well outside the prescribed six-month period, both the order for leave and the substantive order quashing the decision are nullities.

Court orders

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  1. 1.Appeal allowed
  2. 2.No order as to costs
On appeal from
High Court of Kenya at Machakos
H.C.C. Misc. Application No. 52 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court in a judicial review matter (Law Reform Act, Cap 26, and Order 53 of the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimanzi Mboo v David Mulwa Muthusi", Case Analysis (1997). Civil Appeal 233 of 1996. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.