Republic V Municipal Council Of Mombasa Ex- Parte Mazrui & 2 Others  EKLR
|Miscellaneous Application 328 of 1999||24 Oct 2000|
Amrittal Bhagwanji Shah
High Court at Mombasa
Republic v Municipal Council of Mombasa ex- parte Mazrui & 2 others
Republic v Municipal Council of Mombasa ex- parte Mazrui & 2 others  eKLR
Republic v Municipal Council of Mombasa ex parte
Mazrui & 2 others
High Court, at Mombasa October 24, 2000
Shah, Commissioner of Assize
Miscellaneous Application 328 of 1999
Judicial Review – certiorari – six months limitation period – when six months begin to run – characteristics of a decision for purposes of the orders of certiorari.
The applicants filed a notice of motion dated 28th December 1999 seeking an order of certiorari to quash the decision by the respondents to contract the interested party the responsibility of providing and managing certain vehicle parking facilities within the municipality of Mombasa as stipulated in Gazette Notice No 3514 of 1999 appearing in the issue of Kenya Gazette of 25th June 1999. The applicants had received leave on 7th December 1999 to so file these proceedings.
The interested party filed another notice of motion dated 14th January 2000 seeking to set aside the orders granting leave on the ground that more than six months had elapsed from the date the decision sought to be quashed was made. The issue for determination was whether the decision was deemed to have been made on the date of the minutes or upon gazettement.
1. By virtue of section 9(3) of the Law Reform Act, (cap 26) leave to apply for an order of certiorari shall not be granted unless the application for leave is made within six months after the date of the judgment, order, decree, conviction or other proceedings sought to be quashed.
2. Statutory restrictions on judicial remedies should be given the narrowest possible construction, sometimes even against the plain meaning of the words.
3. A “decision” for purposes of section 9(3) of the Law Reform Act must have certain characteristics, namely:
a) It must be a decision in the public domain;
b) It must be a decision upon notice to all affected parties, if not the general public;
c) It must carry the incidence of finality, it cannot be provisional, tentative or revocable or subject to recall by the maker;
d) The decision must not only be lawful but also legitimate.
4. Time for purposes of a decision of a local authority should thus begin to run from the date of gazettment of the decision.
5. The giving of notice is an integral part of any decision making process and without notice, there is no decision.
1. Sinel, Mokompo Ole v County Council of Narok Miscelleneous Civil Case No 361 of 1994
2. Hoffmann La Roche (F) & Co AG v Secretary of State for Trade and Industry  2 1128;  AC 295;  3 WLR 104
3. Boddington v British Transport Police  All ER 203;  2 WLR 639
4. Smith v East Elloe Rural District Council  WLR 888;  1 All ER 855;  AC 736
5. Anisminic v Foreign Compensation Commission  1 All ER 208;  2 AC 147;  2 WLR 163
6. Dodhia v National & Grindlays Bank  EA 195
7. Caltex Oil (Kenya) Ltd v Owners of the Motor Vessel “Lillian S’”  KLR 1
8. Griffiths v Secretary of State for the Environment  1 All ER 439
1. Hailsham, Lord et al (Eds) (1973-87) Halsbury’s Laws of England London: Butterworths 4th Edn Vol VI (1) para 167
2. Wade, H W R; Forsyth, C F (Eds) (1994) Administrative Law Oxford: Clarendon Press 7th Edn p 729
1. Civil Procedure Rules (cap 21 Sub Leg) order XX rule 1; order LIII rule 2
2. Law Reform Act (cap 26) sections 8, 8(2); 9; 9(3)
3. Local Government Act (cap 265) sections 143(6); 143(6)(b); 148
Mr Swaleh for the Interested Party
Mr Mburu for the Respondent