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ELCPartially AllowedJudicial Review Application (Notice of Motion dated 12/10/2009; application to set aside dated 30/3/2010)· [2017] KEELC 1108 (KLR)

Republic v Director of Land Adjudication and Settlement & 4 others [2017] KEELC 1108 (KLR)

High Court of Kenya
2 November 2017
3,800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Meru dismissed a land judicial review case because the applicant waited 16 months to challenge a decision, missing the strict six-month deadline.

What this practically means

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Executive summary

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This is a ruling on an application by the 1st Interested Party, Sekundu Muriira Ibaya, to set aside leave granted to the Ex-parte Applicant, Abraham Muthee M'Ethaiba, on 23/9/2009 to apply for judicial review orders of certiorari (and, later, prohibition) against the decision of the District Land Adjudication Officer Meru North in Objection No. 216 over Land Parcel Uringu (1) Adjudication Section No. 1056 (subdivided into 3020 and 3022). The Interested Party contended the decision was rendered on 6/3/2008, so the leave application filed on 18/9/2009 was about 16 months late, contrary to the mandatory six-month limit in section 9(3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules, and that leave had been obtained by concealing the true date. The Ex-parte Applicant maintained the decision was only read to the parties on 3/4/2009, relying on a notice dated 31/3/2009, and relied on section 159(2)(d) of the Constitution for substantive justice. The court found the proceedings were dated 6/3/2008, that the notice was mere correspondence unauthenticated by the Adjudication Officer, and that there was no proof the decision was delivered on 3/4/2009. It held the leave application was time-barred and mandatory, the amendment could not cure the defect. The court declined to determine the issues of locus standi and the prohibition prayer as outside the grounds of the application. The application to set aside was allowed, the leave of 23/9/2009 was set aside, the substantive Notice of Motion of 12/10/2009 was dismissed, with costs to the 1st Interested Party.

Key legal issues

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01

Date of the impugned decision

Holding

The decision of the District Land Adjudication Officer in Objection No. 216 was made on 6/3/2008, the date appearing on the proceedings, not on 3/4/2009 as contended by the Ex-parte Applicant

Reasoning

The proceedings were dated 6/3/2008. The Ex-parte Applicant relied on a notice of 31/3/2009 calling parties for the reading of the ruling, but the parties did not sign to acknowledge it, there was no evidence of appearance or reading of the decision, and the Adjudication Officer swore no affidavit confirming a later delivery. The notice was mere correspondence, not part of the proceedings.

p. 6
02

Time limit for seeking leave to apply for certiorari

Holding

The application for leave filed on 18/9/2009, approximately 16 months after the decision of 6/3/2008, was out of time and time-barred; the mandatory six-month period in section 9(3) of the Law Reform Act and Order 53 rule 2 could not be cured by amendment

Reasoning

Order 53 rule 2 provides that leave shall not be granted unless the application is made not later than six months after the decision. Section 9(3) of the Law Reform Act is to the same effect and both are mandatory. The order granting leave to amend the Notice of Motion did nothing to bring the motion within the statutory period, so the leave of 23/9/2009 fell to be set aside.

p. 7
03

Whether to address locus standi and the prohibition prayer

Holding

The court declined to determine the issues of locus standi and the competency of the prohibition prayer as they were outside the grounds of the application before it

Reasoning

Although the parties had raised the Ex-parte Applicant's capacity (absence of letters of administration) and the want of leave for the prohibition orders, the court found those issues were not part of the grounds on the setting-aside application and there was no justifiable reason to address them, being made outside the main pleadings.

p. 7

Legal principles established

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  • Leave to apply for an order of certiorari must be sought within six months of the decision sought to be quashed, and this limit is mandatory
  • Where proceedings are dated, that date prima facie is the date of the decision in the absence of proof of a later delivery date

Court orders

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  1. 1.The application dated 30/3/2010 and filed on 9/4/2010 is allowed
  2. 2.The leave granted to the Ex-parte Applicant on 23/9/2009 is set aside
  3. 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. 4.Costs in favour of the 1st Interested Party/Applicant

Authorities

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Legislation

  • Law Reform ActSections 8(2), 9(3)
  • Civil Procedure RulesOrder 53 rules 1, 2 & 4; Order 21 rule 3
  • Constitution of KenyaArticle 60; section 159(2)(d)
  • Land Adjudication ActSection 12
  • Penal CodeChapters XI and XVIII

Cases cited (5)

  • Agakhan Education Service Kenya vs. Republic
    NRB CA 257 of 2003
  • Republic vs. David M. Githae & Others
    Mombasa HC Misc. Appeal No. 20 of 2004
  • Troustik Union International & Anor. Vs. Jane Mbeyu & Anor
  • Charles Mburugu M'Irambu Vs Isabella Kairuthi Kathurima
    HCCC No. 431 of 2006
  • Virginia Edith Wamboi Otieno Vs Joash Achieng Ougo and Omolo Siranga
    1982-88 1 KAR 1045
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act Cap 26 and Order 53 of the Civil Procedure Rules

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, "Republic v Director of Land Adjudication and Settlement & 4 others [2017] KEELC 1108 (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/2017/1108/eng@2017-11-02

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