Republic v Director of Land Adjudication and Settlement & 2 others [2017] KEELC 1045 (KLR)
The bottom line
#Kenya's High Court threw out a land adjudication judicial review because it was filed 16 months late, far beyond the mandatory six-month deadline.
What this practically means
#Executive summary
#Key legal issues
#Date of the impugned decision of the District Land Adjudication Officer
The decision was made on 5/3/2008, the date shown on the proceedings, not on 3/3/2009 or 3/4/2009 as pleaded by the Ex-parte Applicant.
The proceedings dated 5/3/2008 were annexed by both sides. The Ex-parte Applicant relied on a notice dated 31/3/2009 calling parties for the reading of the ruling, but the parties never signed it, there was no evidence the decision was read on 3/4/2009, the Adjudication Officer swore no affidavit confirming a later delivery, and the letter was mere correspondence not part of the proceedings.
Whether the application for leave was filed out of time
The leave application filed on 18/9/2009 was approximately 16 months after the decision and thus time-barred under Order 53 rule 2 and Section 9(3) of the Law Reform Act.
Having found the decision dated 5/3/2008, the court applied the mandatory six-month period. No explanation was given for the delay, and the later amendment of the Notice of Motion could not cure the mandatory requirement or bring the motion within the statutory period.
Whether the application to set aside the order granting leave should be allowed
It was merited; leave granted on 23/9/2009 was set aside.
Since leave was obtained out of time in breach of mandatory statutory limits, the court set aside the leave order. The court declined to address the locus standi and prohibition-limbs arguments as they fell outside the grounds of the application.
Legal principles established
#- Leave to apply for an order of certiorari must be sought not later than six months after the date of the decision sought to be quashed, and the time limit is mandatory.
- In the absence of proof to the contrary, the date of a decision is the date appearing on the proceedings and findings of the adjudication officer.
Court orders
#- 1.The application dated 30/3/2010 and filed on 9/4/2010 is allowed
- 2.The leave granted to the Ex-parte Applicant on 23/9/2009 is set aside
- 3.The Notice of Motion dated 12/10/2009 and filed on 13/10/2009 is dismissed for having been brought outside the statutory provisions of Order 53 of the Civil Procedure Rules
- 4.Costs in favour of the 1st Interested Party/Applicant
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Land Adjudication and Settlement & 2 others [2017] KEELC 1045 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 12/10/2009; application to set aside dated 30/3/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1045/eng@2017-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.