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ELCStruck OutNotice of Motion dated 7th December 2006, filed 14th December 2006 (Judicial Review)· [2017] KEELC 2584 (KLR)

Republic v District Land Disputes Tribunal, Central Division Kirinyaga & 2 others Exparte Grace Gachui Kathei [2017] KEELC 2584 (KLR)

Environment and Land Court
31 May 2017
1,547 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A landowner lost her bid to quash a Tribunal award because she filed her judicial review case nearly a year late, missing Kenya's strict six-month deadline.

What this practically means

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Executive summary

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The Applicant, Grace Gachui Kathe, sought an order of certiorari to quash the award of the Kirinyaga Central Division Land Disputes Tribunal dated 26th January 2005, which had awarded the 3rd Respondent one acre out of her registered land parcel INOI/KAMONDO/1623. The application was brought under Order LIII Rule 3(1) of the Civil Procedure Rules after Khaminwa J. had, on 23rd November 2006, granted leave to apply out of time. The substantive motion was filed on 14th December 2006, roughly one year after the Tribunal's award. The 3rd Respondent opposed the application, contending it was lodged out of time, that the law provides no extension of time for judicial review applications, and that the Applicant was guilty of material non-disclosure of a rejected High Court appeal at Embu. The matter had earlier proceeded before Khaminwa J., who granted certiorari, but the Court of Appeal in Civil Appeal No. 12 of 2008 (Nyeri) set that direction aside and ordered the substantive motion to be heard afresh by another Judge. The matter was later transferred to the Environment and Land Court following the Karisa Chengo decision. Olao J. held that Order 53 Rule 2 and Section 9(3) of the Law Reform Act impose a six-month limit on applications for leave to seek certiorari, which cannot be extended; the 21-day period for filing the substantive motion after leave is the only extendable period. Although the court accepted that the Tribunal lacked jurisdiction over registered land, the application was fatally out of time and the extension of time was incompetent. The Notice of Motion was struck out with costs to the 3rd Respondent.

Key legal issues

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01

Whether the certiorari application was filed within the statutory limitation period

Holding

The application was filed out of time, one year after the Tribunal's award, in contravention of Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act

Reasoning

The Tribunal's award was made on 26th January 2005 and leave to apply for certiorari should have been sought by 25th July 2005. Leave was only granted on 23rd November 2006 and the substantive motion filed on 14th December 2006, well beyond the six-month limit prescribed by both Order 53 Rule 2 and Section 9(3) of the Law Reform Act.

p. 2
02

Whether the extension of time granted by Khaminwa J. could cure the delay

Holding

The extension was incompetent because the Law Reform Act makes no provision for enlarging the six-month period for seeking leave

Reasoning

Relying on the Court of Appeal decisions in Osolo v John Ochola and Ako v Special District Commissioner Kisumu, the court held that while time limits under the Civil Procedure Rules can be extended, statutory time limits cannot. The leave granted ex parte in breach of the law could also be set aside by the court of its own motion on application.

p. 2
03

The Tribunal's jurisdiction over registered land

Holding

The court acknowledged that the Tribunal had no jurisdiction to award a portion of the Applicant's registered land, but this could not cure the fatal delay

Reasoning

The court accepted that the Applicant's grievances were genuine since the Tribunal lacked jurisdiction to make an award over registered land. Nevertheless, the binding precedent on limitation meant the incompetence of the application prevailed over the substantive merit of the grievance.

p. 3

Legal principles established

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  • The six-month period within which to apply for leave to apply for an order of certiorari cannot be extended, unlike the 21-day period for filing the substantive application after leave is granted
  • There is an absolute prohibition against bringing an application for certiorari after the expiry of the six months stipulated by law

Court orders

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  1. 1.The Notice of Motion dated 7th December 2006 and filed on 14th December 2006 was struck out
  2. 2.Costs of the application to the 3rd Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII Rule 3(1)
  • Civil Procedure RulesOrder 53 Rule 2
  • Law Reform ActSection 9(3)
  • Limitation of Actions Act (Cap 22 Laws of Kenya)null
  • Civil Procedure RulesOrder 49

Cases cited (4)

  • Karisa Chengo & Others vs Republic
    2015 eKLR
  • Osolo vs John Ochola & Another
    1995 eKLR
  • Ako vs Special District Commissioner Kisumu & Another
    1989 KLR 163
  • Agakhan Educational Services vs Republic & Others
    Civil Appeal No. 252 of 2003
On appeal from
null
null
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act (Cap 26) and Order LIII of the Civil Procedure Rules, the matter having been transferred to the Environment and Land Court

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 District Land Disputes Tribunal, Central Division Kirinyaga & 2 others Exparte Grace Gachui Kathei [2017] KEELC 2584 (KLR)", Case Analysis (2017). Notice of Motion dated 7th December 2006, filed 14th December 2006 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2584/eng@2017-05-31

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