Daniel Piranto Ole Nchani v Deputy County Commissioner Kajiado Hon. M. C. Wambugu & 4 others [2018] KEELC 1514 (KLR)
The bottom line
#Kenya's High Court confirmed that judicial review challenging an illegal land restriction can proceed even after the six-month filing deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether the judicial review motion offended the six-month limitation in Order 53 rule 2 of the Civil Procedure Rules
The preliminary objection failed. Leave had already been granted and, relying on Stephen Kibowen v Chief Magistrate's Court Nakuru, the court held that nullities fall outside the six-month limitation and that courts may invoke inherent jurisdiction to quash them.
The court noted leave was granted on 6th February 2018 and the motion filed within 21 days. Although the action complained of occurred slightly beyond six months, the Court of Appeal authority established that nullities are not covered by the six-month limitation and that courts have inherent jurisdiction, not confined to Order 53, to quash nullities and illegalities. The 1st Respondent had also failed to grant the applicant a hearing before directing the restriction.
Whether the preliminary objection met the test in Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
The court found the objection unmerited, implicitly accepting the ex parte applicant's reliance on the Mukisa Biscuits test, which the applicant argued the objection did not meet.
The ex parte applicant relied on Mukisa Biscuits to argue the objection did not raise a pure point of law. The court, having considered the authorities and the fact that leave had been granted and that the applicant was denied a hearing before the restriction was registered, concluded the objection lacked merit.
Legal principles established
#- Nullities are not covered by the six months limitation in Order 53, and courts possess inherent jurisdiction to quash nullities and illegalities even outside that period
- Where leave to apply for judicial review has already been granted, a preliminary objection based on the six-month limitation under Order 53 rule 2 may be dismissed
Court orders
#- 1.The 1st, 3rd and 4th Respondents' Notice of Preliminary Objection dated 12th March 2018 is dismissed
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Piranto Ole Nchani v Deputy County Commissioner Kajiado Hon. M. C. Wambugu & 4 others [2018] KEELC 1514 (KLR)", Case Analysis (2018). Not stated in the judgment (Judicial Review application filed 13th February, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1514/eng@2018-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.