Charles Osenyi Okirimonyi v Chairman Busia Municipality Land Dispute Tribunal, Chief Magistrate, Busia & Veronica Nasirumbi [2014] KEHC 5085 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

MISC. APP. NO. 72 OF 2012.

CHARLES  OSENYI OKIRIMONYI………………...........………..APPLICANT

=VERSUS=

CHAIRMAN BUSIA MUNICIPALITY LAND

DISPUTE TRIBUNAL ……….….…………………………..1ST RESPONDENT

CHIEF MAGISTRATE, BUSIA….……..……………………2ND RESPONDENT

VERONICA NASIRUMBI…….…….….....…….…………INTERESTED PARTY.

R U L I N G.

CHARLES  OSENYI OKIRIMONG,hereinafter  referred as  the Applicant  filed his application dated 16. 4.2012  through M/S. Maloba & co. Advocates  for leave ‘’to file application for orders of Judicial Review  and or certiorari out  of time from the judgment made by Busia Municipality Land Disputes Tribunal dated 23rd June, 2011…….and  adopted by Busia Principal  Magistrate’s  court on 3rd August, 2011 vide Busia PMCC Land case  No. 75 of 2011. ’’  The application  is stated to be brought  under section 95  and 3A  of the Civil Procedure  Act  and Order 51 Rules  1, 2, 3 and 4  of the Civil Procedure Rules.  It is based on the grounds on the face of the application and  supported by the Applicant’s affidavit sworn on 16th April, 2012.

The application is opposed by the Interested Party  who filed grounds of opposition dated 12th July, 2012 through  M/S. Ashioya  & co. Advocates.

Both counsel filed written submission. Those for the Applicant are dated 2nd December, 2013 and those for the Interested party  are dated 9th April, 2014.

I have carefully  considered the grounds on the application, the supporting  affidavit, grounds  of opposition and submission by counsel  and find as follows;-

The award  the applicant  intends to challenge was delivered by the Tribunal  on 23. 06. 2011  and adopted by the lower court  in Busia PMCC. Land  case No. 75 of 2011 on 3rd August, 2011.

That Order 53  Rule 1 of the Civil Procedure  Rules requires one  intending to apply for orders of certiorari   to obtain the leave of  the court first. Rule  2 of the same order indicates clearly that ‘’Leave  shall not  be granted to apply for an order of certiorari ……….unless the application for leave  is made  not later than six  months after the date of the proceedings……’’

Order 53  Rule 2 of the Civil Procedure Rules is in the same words with section 9 (3)  of the Law Reform Act and superior courts have held, time and again, that unlike an application under the Civil Procedure  Rules where the court may extend  time, the period of six months  in Order 53 Rule 2 of the Civil Procedure  Rules cannot be extended. This is because the period is set by statute which does not give the court the leeway  to consider  extension.  The position  is illustrated in the following decided cases;

Nyeri HCC. Misc. App. No. 90 of 2003, MOTOKAA NTHAUTHO –VS- JOSEPH NJERU & 3 otherswhere the court held  that the court did  not have jurisdiction to grant leave to extend  time in view of the mandatory  terms of Order 53 of Civil Procedure  Rules and section 9 (3)  of Law Reform Act.

JAMES GITHINJI KIARA –VS- WILLIAM WACHIRA MWANIKI (2005) eKLR where the court referred to order 53 (LIII) of the Civil Procedure Rules and held;

‘’  This  rule is almost identical with section 9 (3)  of the Law Reform Act (cap 26) which  provides similar  provision.  It is apparent that the power of the court to extend  time to apply for orders of certiorari after 6 months from  the time theaction complained of, has  been taken away by this provisions which are  mandatory provision;  the court  has therefore no powers to extend   time  if the application  for leave  is not made  within the 6 months provided.’’

REPUBLIC –VS- CHAIRMAN MERU CENTRAL DISTRICT LAND  DISPUTE TRIBUNAL & 2 others Exparte.  STEPHEN  MUKUMU MWIRICHIA  (2006) eKLRwhere  Lenaola J,  stated;

‘’Often  times deserving litigants are shut out  because of the operations of Order LIII Rule 2  …

A judge in that position wishes he could  extend  time for such a party but  he has no power to do so.  I am in that  position  and like l said earlier there are   good reasons for the exparte applicant to challenge the decision of the tribunal but once l have said he  is out of time, that consideration is irrelevant and the           doors of justice must close for the exparte  applicant.’’

Nyeri HCC. Misc. App. No. 112  of 2008, DICKSON  MWIRICHO MURIUKI –VS-  CENTRAL PROVINCIAL  LAND DISPUTES APPEAL COMMITTEE where  Makhandia  J,  (as he then was) held;

‘’Certiorari proceedings can only be initiated and  or commenced and successfully mounted within 6 months of making of the decision sought to be   quashed and  or impugned.’’

The Court of Appeal, whose  decisions are binding  on this court, has  in various cases confirmed  the position set out in the cases listed  above  that  the provisions of Order 53 Rule 2 of the Civil Procedure Rules  and Section  9 (3)  of the Law Reform  Act do not confer any discretion  to  the court to extend  the six months within which applications for leave to file applications for certiorari orders should be filed. The following two  cases confirms this position.

KIMANZI MBOO –VS- DAVID MULWAC.A.C.A NO.233 of 1996 where the court held  that no application for leave can be entertained  under Order 53 Rule 2  of the Civil Procedure Rules  and section 9 (3)  of the Law Reform Act, unless it is made within six months of the date of the award or order.

WILSON OSOLO –VS- JOHN OJIAMBO &another  (1996) eKLR where the Court of appeal  was dealing with an  appeal in a matter where the High Court had allowed an application  for extension of time to apply for an order of certiorari beyond the six months and held that the six months  period for an order of certiorari  could not be extended  as it was a creature of the Law Reform Act.

The above  being the position of the law,  it follows that the Applicant  herein had only six months from the date the order he seeks to challenge  was made to file the application for leave.   The tribunals award carries a date  of 23rd June, 2011  but it is not clear whether  that is the same date the award was brought  to the attention of the parties.  The award was subsequently  filed in Busia PMCC. Land Case No. 75 of 2011 and adopted  as judgment of  the court on 3rd August, 2011.  The Applicant had six months  from 3rd August, 2011 to file the application for leave and did not  do so within that time.  The application  before this court was  filed on 25th April, 2012 . Even  assuming that the Applicant only got to know of the award after it was adopted by the court,  he filed the application for leave over eight months from the date the award was adopted by the lower court.

As  shown in the cases above, this  court has no jurisdiction to extend  the six months period set out  in Order 53  Rule 2  of Civil Procedure Rules and the Applicant’s application dated 16th April, 2012  is dismissed with costs to the Interested party.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED IN OPEN  COURT  ON 21ST DAY OF MAY, 2014.

IN THE PRESENCE OF ;

JUDGE.