Republic v Maseno University Ex parte Raphael Mutinda Kyalo [2020] KEHC 469 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MISC. CIVIL APPLICATION NO. 17 OF 2019

IN THE MATTER OF THE COMMON RULES AND REGULATIONS FOR UNDERGRADUATE EXAMINATION GOVERNING MASENO UNIVERSITY

AND

IN THE MATTER OF AN APPLICATION BY RAPHAEL MUTINDA KYALO FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF THE FAIR ADMINISTRATION ACT AND ORDERS 53 OF THE

CIVIL PROCEDURE RULES

AND

IN THE MATTER OF THE DECISION OF THE SENATE DATED 8TH FEBRUARY 2019 AND IN THE APPEAL COMMITTEE OF MASENO UNIVERSITY CONTAINED IN THE LETTER DATED 2ND APRIL 2019

REPUBLI.........................................................................................................APPLICANT

RAPHAEL MUTINDA KYALO.................................................... EX-PARTE APPLICANT

VERSUS

MASENO UNIVERSITY..............................................................................RESPONDENT

RULING

The issue for determination before me is the Preliminary Objection lodged by the Respondent, MASENO UNIVERSITY.

1. In a nutshell, the Respondent’s position was that the

Judicial Review application herein is statute barred.

2. The basis for that assertion was that the application was brought after the lapse of six (6) months from the date of the decision which the Applicant, RAPHAEL MUTINDA KYALOseeks to challenge.

3. From the Applicant’s Statement of Facts dated 1st October 2019, it is clear that the decisions which are the subject matter of these proceedings were rendered on 8th February 2019 and 2nd April 2019.

4. According to the Respondent, the Applicant should haveinstituted Judicial Review proceedings not later than 1st October 2019.

5. The Petitioner submitted that although Order 53 Rule 2of the Civil Procedure Rulesstipulates that applications for Judicial Review Orders such as of Certiorari have to be brought within the period of 6 months, the said rule;

“….. does not specifically indicatethat six months have to be clear days.”

6. The Applicant called to his aid, the provisions of Order 50 Rule 8of the Civil Procedure Rules.  Being of thatpersuasion, the Applicant submitted that duringcomputation of time, the“first day”should not be included.

7. He identified the said “first day”as being the 2nd day of April 2019; adding that time ought to run from 3rd April 2019.

8. It is thus common ground that an application for leave to institute proceedings for certiorari ought to be made within 6 months from the date of the decision which the Applicant desires to have quashed.

9. The said rule provides as follows;

“Leave shall not be granted to applyfor an order of certiorari to removeany judgment, order, decree, convictionor other proceeding for the purpose of itsbeing quashed, unless the application forleave is made not later than six monthsafter the date of the proceeding or suchshorter period as may be prescribed byany Act; and where the proceeding issubject to appeal and a time is limited bylaw for the bringing of the appeal, thejudge may adjourn the application forleave until the appeal is determinedor the time for appealing has expired.”

10. According to the Applicant, the date when the decision was made must be excluded when computing the period of six months.

11. In the case of NYAGAH Vs REPUBLIC (1990) eKLR 291, Bosire J. (as he then was) said;

“Section 9 (3) of the Law Reform Acthas a total prohibition to the grantingof leave after the expiration of a 6months duration, after the order ordecree or judgment under attack.  Theprovision is conclusive.  Had it beenthe intention of the legislature to conferon the Court the power to enlarge thetime specified for bringing an applicationfor leave, it would have said so or madeprovision under Section 9 (1) of the LawReform Act, for the making of the rulesin that regard.”

12. I find that the provisions of Order 53 Rule 2of the Civil Procedure Rules, similarly lack provision for enlargement of time.

13. In that regard, the Court of Appeal noted as follows in the case of WILSON OSOLO V JOHN OJIAMBO OCHOLA & ANOTHER (1999) eKLR;

“It can readily be seen that Order 53Rule 2 ….. is derived verbatim fromSection 9 (3) of the Law Reform Act…..”

14. I am emphasizing the fact that the provisions of Order 53 Rule 2are couched in mandatory terms.

15. The Applicant drew attention to the following words of the Court of Appeal in REPUBLIC Vs MASENO UNIVERSITY STAFF DISCIPLINARY COMMITTEE & ANOTHER [2009] eKLR

“The decision of the Council is not anorder of the Court, a judgment, decreeor proceedings.  Besides, if such decisionis found to be a nullity then an order ofcertiorari should lie even if challengedafter 6 months.  I subscribe to theabove view that a nullity cannot besubject of the 6 months periodbecause it does not  exist, and so canbe challenged outside the 6 months.”

16. In that case the learned Judges of Appeal held the view that the Respondents had acted without jurisdiction.

17. In the case before me, there is absolutely no assertion that the Respondents had acted without jurisdiction.

18. The foundation of the Applicant’s application was that his legitimate expectation to a fair administrative action was breached.  His complaint was that the Respondents failed to follow the laid down rules and regulations.  Therefore, I find that this case is distinguishable from the case in which a nullity existed, due to actions which had been undertaken without jurisdiction.

19. It is well settled that when any tribunal or court lacksJurisdiction, that which it does amounts to nought.

20. I therefore appreciate why the Court of Appeal made the pronouncement in respect to the decision that had been rendered by the Maseno University Staff DisciplinaryCommittee.

21. Although I would wish to add that because a lack ofjurisdiction is one of the grounds upon which the court can quash the decision of a tribunal, court or any other organ charged with adjudication, I have the distinct feeling that the Court of Appeal may have stretched their reasoningdeliberately, because the Court was perhaps intent ondoing substantive justice.

22. As regards the question about excluding the date when the decision was made, when computing the period of 6 months, I find that the Applicant cannot be right.

23. Order 53 rule 2expressly states that the 6 months is to beComputed from the date of Judgment.

24. And once the said period of 6 months  has lapsed, the court shall not grant leave to a party to apply for an order ofcertiorari.  That is the clear meaning of the phrase;

“…… leave shall not be granted unlessthe application for leave is made notlater than six months after the dateof that judgement, order, decree,conviction or other proceedings ……”

25. I therefore uphold the Preliminary Objection andpronounce that the Applicant moved the court more than 6 months after the date of the decision which he was desirous of asking the court to quash.  The action is statute barred and cannot therefore be sustained.

DATED, SIGNED and DELIVERED at KISUMU

This 3rd  day of December 2020

FRED A. OCHIENG

JUDGE