Case Metadata |
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| Case Number: | Civil Appeal 27 of 1989 |
|---|---|
| Parties: | Ako v Special District Commissioner Kisumu & another |
| Date Delivered: | 19 Jun 1989 |
| Case Class: | Civil |
| Court: | Court of Appeal at Kisumu |
| Case Action: | Judgment |
| Judge(s): | Richard Otieno Kwach, John Mwangi Gachuhi, James Onyiego Nyarangi |
| Citation: | Ako v Special District Commissioner Kisumu & another [1989]eKLR |
| Advocates: | Mr Oketch for the Appellant. |
| Case History: | (Appeal from the Ruling of the High Court at Kisumu, Omolo J, in High Court Miscellaneous Application No 56 of 1986 dated 30th March 1986) |
| Court Division: | Civil |
| County: | Kisumu |
| Advocates: | Mr Oketch for the Appellant. |
| History Docket No: | Miscellaneous Application No 56 of 1986 |
| History Judges: | Riaga Samuel Cornelius Omolo |
| Case Summary: | Ako v Special District Commissioner Kisumu & another Court of Appeal at Kisumu June 19, 1989 Nyarangi, Gachuhi JJ A & Kwach Ag JA Civil Appeal No 27 of 1989 (Appeal from the Ruling of the High Court at Kisumu, Omolo J, in High Court Miscellaneous Application No 56 of 1986 dated 30th March 1986) Judicial review – leave to apply for certiorari – time within which application for leave should be made – Law Reform Act (cap 26) section 9(3) – whether time bar absolute – whether time can be extended under the Civil Procedure Rules. Civil Practice and Procedure – extension of time – judicial review proceedings – application for leave to apply for certiorari – time for bringing such application prescribed by the Law Reform Act (cap 26) section 9(3) – whether the time bar is absolute – whether the time can be extended under the Civil Procedure Rules order XLIX rule 5. The issue before the court was whether the time prescribed by the Law Reform Act (cap 26) for bringing an application for leave to apply for an order of certiori. Held: 1. It is plain that under sub-section (3) of section 9 of the Law Reform Act (cap 26) leave shall not be granted unless application for leave is made inside six months after date of judgment. 2. The prohibition is statutory and absolute and is not therefore challengeable under procedural provisions of the Civil Procedure Rules, more specifically order 49 rule 5 which makes provision for the enlargement of time. Application refused. Cases Mahaja v Khutwalo [1983] KLR 553 Statutes 1. Law Reform Act (cap 26) section 9(3) 2. Civil Procedure Rules (cap 21 Sub Leg) order XLIX rule 5 3. Rules of the Supreme Court [UK] Advocates Mr Oketch for the Appellant. |
| History Advocates: | One party or some parties represented |
| History County: | Kisumu |
| Case Outcome: | Application dismissed |
| 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 |
IN THE COURT OF APPEAL
AT KISUMU
(Coram: Nyarangi, Gachuhi JJ A & Kwach AG JA)
CIVIL APPEAL NO 27 OF 1989
AKO.................................................APPLICANT
VERSUS
SPECIAL DISTRICT COMMISSIONER KISUMU
& ANOTHER....................................RESPONDENT
JUDGMENT
(Appeal from the Ruling of the High Court at Kisumu, Omolo J, in High Court Miscellaneous Application No 56 of 1986 dated 30th March 1986)
June 19, 1989 the following Judgment of Court was delivered.
It is plain that under sub-section (3) of section 9 of the Law Reform Act Cap 26 leave shall not be granted unless application for leave is made inside six months after the date of the judgment. The prohibition is statutory and is not therefore challengeable under procedural provisions of the Civil Procedure Rules, more specifically order 49 rule 5 which permits for enlargement of time. That is the basis of the contention that the prohibitive nature of sub-section (3) of section 9 of the Act is capable of bearing such a liberal interpretation as would make it permissible for the court to enlarge time beyond the period of six months. We have no doubt that the prohibition is absolute and any other interpretation or view of the particular provision would be doing violence to the very clear provision of subsection (3) of section 9 of the Law Reform Act.
The decision of this court in Girado Othieno Mahaja v Khafulu Khatwalo & another CA No 19 of 1987 which was cited by Mr Okech, learned counsel for the appellant, is in conformity with our view of correct interpretation of the material section. The decision does not therefore advance the appellant’s case.
The views of Hancox JA in which he leaned towards a liberal construction were not essential to the decision, were not expressly shared by the majority and were based on the rules of the Supreme Court of England which do not automatically apply to this jurisdiction.
In the result the appeal fails and is dismissed with costs.
That is the order of the court.
Dated and Delivered at Kisumu this 19th day of June, 1989.
J.O. NYARANGI
................................
JUDGE OF APPEAL
J.M. GACHUHI
................................
JUDGE OF APPEAL
R.O. KWACH
................................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR
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