Republic v Bahati Land Dispute Tribunal Ex-Parte Gerald Kamau Mwangi & 4 others [2015] KEELC 117 (KLR)

The bottom line

The Environment and Land Court dismissed a judicial review challenge to a land tribunal decision because it was filed after six months and lacked the decision itself.

What this practically means

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Executive summary

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This was a judicial review motion filed on 26 March 2012 at the Environment and Land Court at Nakuru by ex-parte applicants Margaret Waitherero and David Njuguna Kang’ete, with Wildson Thanje Njoroge as interested party, seeking an order of certiorari to quash a decision of the 1st respondent given on 17 August 2011 compelling the District Surveyor to visit plots and mark boundaries and beacons. The interested parties objected that leave was sought outside the six-month limitation period for certiorari prescribed by Order 53 Rule 2 of the Civil Procedure Rules, 2010 and Section 9(3) of the Law Reform Act, and that the motion was incompetent because the decision sought to be quashed was never annexed. Munyao Sila J raised questions on competency, holding that the court could not quash a decision it had not seen; the decree alone did not disclose whether the tribunal dispute concerned boundaries (within tribunal jurisdiction) or ownership (outside it). On limitation, the award was delivered on 17 August 2011 and leave was sought on 7 March 2012, beyond six months. The court observed that a prayer to quash the decree (passed 31 October 2011 or 6 October 2011) would have been within time, but no such prayer was made, and the court declined to quash the decree absent a specific prayer and given uncertainty about the tribunal's jurisdiction. The motion was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

1.Whether the motion is competent where the decision (award) sought to be quashed was never annexed to the motion
2.Whether the judicial review motion was filed outside the 6-month limitation period for certiorari
3.Whether the tribunal's award, and any consequential decree, should be quashed

Key legal issues

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01

Competency of the motion for failure to annex the award

Holding

The motion was incompetent because the award sought to be quashed was never supplied to the court, leaving it unable to determine the nature of the dispute or the tribunal's jurisdiction

Reasoning

The court reasoned that it could not quash a decision it had not seen. The decree alone did not disclose what dispute was presented before the tribunal - whether boundary or ownership - and therefore the court could not assess the tribunal's jurisdiction or the propriety of the award. The applicants should have annexed the full minutes or at least the award, or given reasons for their absence.

p. 1

02

Limitation for certiorari

Holding

The motion was filed out of time; leave cannot be granted for certiorari more than six months after the decision

Reasoning

The award was delivered on 17 August 2011 and the application for leave was filed on 7 March 2012, beyond six months. Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, 2010 prescribe this limit. The court noted that had the applicants sought to quash the decree (passed 31 October 2011 or 6 October 2011), the motion would have been within time, but no such prayer existed.

p. 2

Legal principles established

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An application for leave to apply for certiorari must be made not later than six months after the date of the proceeding
An applicant for certiorari must annex the decision sought to be quashed, or explain why it could not be obtained

Court orders

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1.The judicial review motion was dismissed for being filed out of time and for incompetence
2.Costs of and incidental to the application provided for in the motion

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MS

Munyao SilaJ

majority

Wrote the judgment

Relief refused

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Order of certiorari to quash the tribunal's decision of 17 August 2011

The application for leave was filed beyond the 6-month limitation period prescribed by Order 53 Rule 2 of the Civil Procedure Rules, 2010 and Section 9(3) of the Law Reform Act, and the award sought to be quashed was never annexed, making the motion incompetent

p. 2

Quashing of the decree adopting the award

No specific prayer was made to quash the decree, and the court could not be sure the dispute was outside the tribunal's jurisdiction

p. 2

Costs

Costs of and incidental to the application to be provided for

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Now, if I do not know what it is that I am being called upon to quash, what exactly is it that I will be quashing ? How can I quash what I do not know ?

p. 1competency - duty to annex the decision sought to be quashed

I don’t think it can be contested that the limitation period for filing orders of certiorari is 6 months of the decision.

p. 2limitation for certiorari

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

p. 2Order 53 Rule 2 - six-month limitation rule

I am unable to bring myself to quash the decree, first because there is no specific prayer to do so, and secondly because I am not too sure whether the dispute was actually outside the jurisdiction of the tribunal.

p. 2refusal to quash the decree

It is so ordered.

p. 2final orders / disposition

Issues in the judgment

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minor

The judgment does not state the exact date of judgment; only the filing year (2012) and reference to a 7 March 2012 leave application appear

minor

The parties/coram section is fragmented in the text; the respondent is referenced but not named in the header

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, "Republic v Bahati Land Dispute Tribunal Ex-Parte Gerald Kamau Mwangi & 4 others [2015] KEELC 117 (KLR)", Case Analysis (2012). Judicial Review No. 13 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/117/eng@2015-10-22

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