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ELCAllowedJudicial Review (Chamber Summons) Application dated 12th March, 2012· [2017] KEELC 316 (KLR)

Simeon Kinyua ole Lekasi v Senior Resident Magistrate Kajiado & 2 others [2017] KEELC 316 (KLR)

High Court of Kenya
19 December 2017
1,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that decisions made about your land without letting you participate are void and can be quashed even after the usual six-month deadline.

What this practically means

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Executive summary

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The Applicant, Simeon Kinyua Ole Lekasi, registered owner of land parcel Kajiado/Dalalekutuk/46, brought a Chamber Summons dated 12th March 2012 under Order 53 of the Civil Procedure Rules and Section 9 of the Law Reform Act seeking leave to apply for judicial review to quash the decision of the Kajiado Central Land Disputes Tribunal (Case TC No. 603/11/2010) as adopted by the Senior Resident Magistrate's Court Kajiado in Land Tribunal Case No. 4 of 2011. He contended the Tribunal acted ultra vires by entertaining a boundary dispute contrary to Section 21(4) of the Registered Land Act while a boundary determination was pending before the District Land Registrar, and that the resulting survey incursions placed beacons on his land. The 1st Interested Party opposed, arguing the Tribunal had jurisdiction under Section 3 of the Land Dispute Tribunals Act, that the decision was unchallenged on appeal, and that the application was time-barred, having been filed almost ten months after the award. The court framed a single issue: whether the Applicant was entitled to leave to commence judicial review. Relying on Stephen Kibowen v Chief Magistrate's Court Nakuru, which held that nullities are not subject to the six-month Order 53 limitation, the court found the Tribunal's failure to include the Applicant, an interested landowner, in the proceedings was a nullity. Leave was granted, with the substantive judicial review proceedings to be filed within 21 days and costs in the cause.

Key legal issues

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01

Whether the Applicant is entitled to leave to commence judicial review proceedings despite the six-month limitation under Order 53

Holding

Leave is merited because the Tribunal's decision was a nullity, being made without jurisdiction over the Applicant who had an interest but was not party to the proceedings

Reasoning

The Tribunal's award was made on 26th January 2011 and leave was sought almost 10 months later, prima facie outside the six-month window of Order 53. However, following Stephen Kibowen v Chief Magistrate's Court Nakuru, nullities fall outside that limitation and courts have inherent jurisdiction to quash them. The Applicant was not a party to the Tribunal proceedings yet the outcome affected his land parcel, rendering the decision ultra vires and a nullity, so leave to apply for judicial review was warranted.

p. 3

Legal principles established

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  • Nullities are not covered by the six-month limitation under Order 53; courts possess inherent jurisdiction to quash nullities and illegalities whenever moved
  • A decision made by a tribunal without jurisdiction, or affecting a person who was not party to the proceedings, is a nullity

Court orders

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  1. 1.The Applicant's Chamber Summons application dated 12th March, 2012 is allowed
  2. 2.The Applicant to file the substantive Judicial Review proceedings within 21 days from the date of the ruling
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1 and 2
  • Civil Procedure ActSection 3A
  • Law Reform ActSection 9(2) and (3)
  • Registered Land Act (now repealed)Section 21(4)
  • Land Dispute Tribunals ActSection 3

Cases cited (2)

  • Stephen Kibowen vs The Chief Magistrate’s Court Nakuru, The Bahati Land Disputes Tribunal and Ruth Njoki Waweru
    Civil Appeal No. 211 of 2013
  • Republic vs. Judicial Commission of Inquiry into the Goldenberg Affair & 3 Others Ex Parte Malulu & 3 Others
Jurisdiction invoked
Order 53 Rules 1 and 2 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Section 9(2) and (3) of the Law Reform Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simeon Kinyua ole Lekasi v Senior Resident Magistrate Kajiado & 2 others [2017] KEELC 316 (KLR)", Case Analysis (2017). Judicial Review (Chamber Summons) Application dated 12th March, 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/316/eng@2017-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.