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ELRCDismissedChamber Summons dated 28.1.2004· [2019] KEELRC 104 (KLR)

Francis Muthini Kavoi v Attorney General & 2 others [2019] KEELRC 104 (KLR)

High Court of Kenya
20 December 2019
OMONESMUS MAKAU
990 words in judgment
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The bottom line

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Kenya's High Court confirmed you have only six months to seek certiorari over an administrative decision, and that deadline cannot be extended.

What this practically means

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Executive summary

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The applicant, a police officer dismissed and reprimanded by the Provincial Police Officer, Eastern Province by letter dated 16 July 2003, moved the High Court by Chamber Summons dated 28 January 2004 under Order 53 Rule 1(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking leave to apply for an order of certiorari to quash the dismissal and an order of mandamus compelling the Commissioner of Police to reinstate him. When the application was first presented to Onyancha J on 30 November 2005, leave was not granted on the view that it was time barred; the applicant was directed to file an explanation for the delay, which he only did by affidavit filed on 20 May 2019, contending that the Christmas court vacation (21 December 2003 to 13 January 2004) should be excluded from computation under Order 50 Rule 4, so that only 5 months 21 days had elapsed. The respondents objected that under Section 9(3) of the Law Reform Act and Order 53 rule 1(2), the six-month limitation is mandatory and incapable of extension. Makau J held that the six months lapsed on 16 January 2004 and the application filed on 29 January 2004 was about 13 days out of time. Applying the binding precedent of Ako v Special District Commissioner Kisumu, the court held the statutory prohibition absolute and incapable of being watered down by subsidiary legislation. Leave was declined and the application dismissed with no orders as to costs.

Key legal issues

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Whether the application for leave to apply for certiorari was filed within the six-month limitation period, including whether court vacation time is excluded from computation.

Holding

The application was time barred and incompetent. The impugned decision was made on 16.7.2003, the six months lapsed on 16.1.2004, and the application filed on 29.1.2004 was about 13 days out of time. The applicant's argument on excluded vacation time could not override the statutory bar.

Reasoning

The court held that Section 9(3) of the Law Reform Act is the substantive law governing the limitation period for certiorari leave applications. Reliance on Order 50 Rule 4 to exclude vacation time was misplaced because the statutory prohibition is absolute and cannot be amended or watered down by subsidiary legislation. The binding precedent in Ako v Special District Commissioner Kisumu settled that the prohibition is not challengeable under the enlargement-of-time procedural provisions. The court therefore declined leave and dismissed the application.

p. 2

Legal principles established

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  • The six-month limitation period for applying for leave to seek certiorari under Section 9(3) of the Law Reform Act is statutory, absolute, and cannot be enlarged by provisions of the Civil Procedure Rules.

Court orders

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  1. 1.Decline to grant the leave sought
  2. 2.Dismiss the application dated 28.1.2004 with no orders as to costs
Jurisdiction invoked
Order 53 Rule 1(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (judicial review leave application)

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, "Francis Muthini Kavoi v Attorney General & 2 others [2019] KEELRC 104 (KLR)", Case Analysis (2019). Chamber Summons dated 28.1.2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/104/eng@2019-12-20

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