2014 and 21st April, 2014 hence the publication was within the stipulated time. Section 57(d)
of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya provides:
“where an act or proceeding is directed or allowed to be done or taken within any time not exceeding
six days, excluded days shall not be reckoned in the computation of the time.”
64. What I understand by the foregoing provision is that if the period of time prescribed by a
legal instrument for doing any act is six days or less, excluded days are to be excluded when
calculating the time. In this case, the period stipulated was within 7 days which period
clearly fell outside the six days or less. It is not alleged that time was extended assuming that
was possible.
65. Thereafter, the panel was expected to interview the shortlisted applicants within fourteen
days from the date of publication of the list of shortlisted applicants and forward the names
selected to the President or Cabinet Secretary for appointment within 14 days of receipt
thereof. Therefore the conduct of the interviews was to be completed by 6th May, 2014 in
which the appointment of the Board Members ought to have taken place by latest 20th May,
2014. However, as a result of the non-compliance with the said timelines, the appointments
were done by way of Gazette Notice dated 30th May, 2014.
66. In Republic vs. Kenya National Examinations Council ex parte Geoffrey Githinji and 9 Others
Civil Appeal No. 266 of 1996 it was held:
“the remedies of certiorari and prohibition are tools that this court uses to supervise public bodies
and inferior tribunals to ensure that they do not make decisions or undertake activities which are
ultra vires their statutory mandate or which are irrational or otherwise illegal. They are meant to
keep public authorities in check to prevent them from abusing their statutory powers or subjecting
citizens to unfair treatment.”
67. It was contended that since the Selection Panel is not a party to these proceedings, the
orders sought cannot be granted. The applicant however contends that he was unaware of
the particulars of the said panel save for the 1st interested party. This contention was not
controverted. Order 53 rule 6 of the Civil Procedure Rules provides:
On the hearing of any such motion as aforesaid, any person who desires to be heard in opposition to
the motion and appears to the High Court to be a proper person to be heard shall be heard,
notwithstanding that he has not been served with the notice or summons, and shall be liable to costs
in the discretion of the court if the order should be made.
68. The respondents have not alluded to the impediment if any that barred the members of the
selection panel from participating in these proceedings more so as the 1st interested party
was aware of these proceedings. In any case non-joinder of parties, is never fatal to legal
proceedings unless it amounts to breach of the rules of natural justice. In this case, I am not
satisfied that that would be the case in light of the fact that the 1st interested party, the
Chairperson of the said panel is a party to these proceedings.
69. In my view if the 1st Respondent’s decision was outside the timelines set out by the Act, its
decision was arrived at without or in excess of jurisdiction and whatever proceedings flowed
from that decision would be null and void since a decision made without jurisdiction must of
necessity be null and void. This is in line with the celebrated decision in Macfoy vs. United
Africa Co. Ltd [1961] 2 ALL ER 1169 at 1172 to the effect that where an act is a nullity it is