Republic v Director of Land Adjudication and Settlement & 4 others [2017] KEELC 1108 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Date of the impugned decision
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
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.
Time limit for seeking leave to apply for certiorari
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
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.
Whether to address locus standi and the prohibition prayer
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
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.
Legal principles established
#- 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
#- 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 & 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.