Republic v Busia Municipality Land Disputes Tribunal & another exparte Absolom Namani Wasike & another [2017] KEELC 870 (KLR)
The bottom line
#A Kenyan court allowed a son to take over his late father's land case despite missing a 21-day filing deadline, but made him pay the other side's legal costs.
What this practically means
#Executive summary
#Key legal issues
#Substitution of a deceased exparte applicant and enlargement of time to file the substantive judicial review motion
The application for substitution and enlargement of time was allowed; the death and illness of the party in conduct of the proceedings constituted circumstances beyond the applicant's control justifying extension.
The deceased 2nd exparte applicant was the one conducting the proceedings; he fell ill and died. Obtaining a grant or securing legal representation after death takes time. Even acting faster, the applicant could not have beaten the 21-day deadline. The Interested Party would suffer no grave prejudice as she would have time to participate and can be compensated with costs.
Applicability of the Civil Procedure Act and Rules to judicial review proceedings
The court acknowledged that the Civil Procedure Act and Rules do not apply to judicial review proceedings, which are governed by the Law Reform Act (Cap 26) and Order 53, but noted the application invoked other enabling provisions of law.
Judicial review is a special jurisdiction; when undertaking it, the court does not sit under civil or criminal jurisdiction. Order 53 rules are made under the Law Reform Act, not the Civil Procedure Act. Nonetheless, Article 159(2)(d) of the Constitution and Section 19(1) of the Environment and Land Court Act empower the court to act without undue regard to procedural technicalities.
Discretion to enlarge time and the dictates of justice
The discretion to enlarge time must be exercised judicially, with the overriding concern that justice be done and all litigants heard; unintentional non-compliance should be considered kindly.
The court has power to enlarge time as the justice of the case may require. Here, a party to the proceedings got sick and died within the 21-day period allowed for filing the substantive application. Post-death processes of obtaining a grant take time, so the delay was excusable and no grave prejudice would befall the Interested Party.
Legal principles established
#- The Civil Procedure Act and its Rules are inapplicable to judicial review proceedings, which are governed by the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules made thereunder.
- Where non-compliance with court timelines is not intentional or willful, the court should kindly consider an application to extend time, exercising the discretion judicially.
- Courts are not powerless to act where justice requires, by dint of Article 159(2)(d) of the Constitution and Section 19(1) of the Environment and Land Court Act, which require justice to be administered without undue regard to procedural technicalities.
Court orders
#- 1.Substitution of the late Justo Oundo Okumu by Charles Wandera Oundo as legal representative of his estate, with consequential amendment of the main application and statement of facts
- 2.Enlargement of time to enable the applicant to file the main (substantive) notice of motion for judicial review
- 3.Costs of the application awarded to the Interested Party
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Order 24 Rules 1 & 3, Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules and all enabling provisions of law; Article 159(2)(d) of the Constitution and Section 19(1) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Busia Municipality Land Disputes Tribunal & another exparte Absolom Namani Wasike & another [2017] KEELC 870 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 20/10/2015, filed 1/7/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/870/eng@2017-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.