Case ID:168835

Republic v Maseno University Ex parte Raphael Mutinda Kyalo [2020] eKLR

Case Metadata

Case Number:

Miscellaneous Civil Application 17 of 2019

Parties:

Republic v Maseno University Ex parte Raphael Mutinda Kyalo

Date Delivered:

03 Dec 2020

Case Class:

Civil

Court:

High Court at Kisumu

Case Action:

Ruling

Judge(s):

Fred Andago Ochieng

Citation:

Republic v Maseno University Ex parte Raphael Mutinda Kyalo [2020] eKLR

Court Division:

Judicial Review

County:

Kisumu

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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 8

TH

FEBRUARY 2019 AND IN THE APPEAL COMMITTEE OF MASENO UNIVERSITY CONTAINED IN THE LETTER DATED 2

ND

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 KYALO

seeks to challenge.

3.

From the Applicant’s Statement of Facts dated 1

st

October 2019, it is clear that the decisions which are the subject matter of these proceedings were rendered on 8

th

February 2019 and 2

nd

April 2019.

4.

According to the Respondent, the Applicant should have

instituted Judicial Review proceedings not later than 1

st

October 2019.

5.

The Petitioner submitted that although

Order 53 Rule 2

of the

Civil Procedure Rules

stipulates 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 indicate

that six months have to be clear days.”

6.

The Applicant called to his aid, the provisions of

Order 50 Rule 8

of the

Civil Procedure Rules

. Being of that

persuasion, the Applicant submitted that during

computation of time, the

“first day”

should not be included.

7.

He identified the said

“first day”

as being the 2

nd

day of April 2019; adding that time ought to run from 3

rd

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 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 or such

shorter period as may be prescribed by

any Act; and where the proceeding is

subject to appeal and a time is limited by

law for the bringing of the appeal, the

judge may adjourn the application for

leave until the appeal is determined

or 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 Act

has a total prohibition to the granting

of leave after the expiration of a 6

months duration, after the order or

decree or judgment under attack. The

provision is conclusive. Had it been

the intention of the legislature to confer

on the Court the power to enlarge the

time specified for bringing an application

for leave, it would have said so or made

provision under Section 9 (1) of the Law

Reform Act, for the making of the rules

in that regard.”

12.

I find that the provisions of

Order 53 Rule 2

of 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 53

Rule 2 ….. is derived verbatim from

Section 9 (3) of the Law Reform Act…..”

14.

I am emphasizing the fact that the provisions of

Order 53 Rule 2

are 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 an

order of the Court, a judgment, decree

or proceedings. Besides, if such decision

is found to be a nullity then an order of

certiorari should lie even if challenged

after 6 months. I subscribe to the

above view that a nullity cannot be

subject of the 6 months period

because it does not exist, and so can

be 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 lacks

Jurisdiction, 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 Disciplinary

Committee.

21.

Although I would wish to add that because a lack of

jurisdiction 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 reasoning

deliberately, because the Court was perhaps intent on

doing 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 2

expressly states that the 6 months is to be

Computed 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 of

certiorari. That is the clear meaning of the phrase;

“…… leave shall not be granted unless

the application for leave is made not

later than six months after the date

of that judgement, order, decree,

conviction or other proceedings ……”

25.

I therefore uphold the Preliminary Objection and

pronounce 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 3

rd

day of December 2020

FRED A. OCHIENG

JUDGE