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ELCDismissedNot stated in the judgment (Judicial Review application filed 13th February, 2018)· [2018] KEELC 1514 (KLR)

Daniel Piranto Ole Nchani v Deputy County Commissioner Kajiado Hon. M. C. Wambugu & 4 others [2018] KEELC 1514 (KLR)

High Court of Kenya
17 September 2018
1,409 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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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

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Executive summary

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The High Court at Kajiado (Ochieng J) determined a preliminary objection dated 12th March 2018 by the 1st, 3rd and 4th Respondents against the ex parte applicant's Notice of Motion dated 13th February 2018 seeking certiorari to quash a circular dated 21st June 2017 and a restriction registered on that date over LR Kajiado/Dalalekutuk/3700, and mandamus compelling the 1st and 2nd Respondents to lift the restriction under Section 78(1) & (2) of the Land Registration Act 2012. The Respondents argued that the application offended Order 53 rules (2) and (3) of the Civil Procedure Rules 2010 because leave for certiorari had been sought more than six months after the decision sought to be quashed, and that the application was frivolous, vexatious and an abuse of process. They cited several authorities supporting the six-month limitation. The ex parte applicant countered with Mukhisa Biscuits, arguing the objection did not meet that test. The court framed a single issue: whether the motion offended Order 53 rules (2) and (3). Noting that leave had been granted on 6th February 2018 and the motion filed within 21 days, and that the action complained of occurred six months and one day prior, the court followed the Court of Appeal decision in Stephen Kibowen, adopting the view that nullities are not covered by the six-month limitation and that courts have inherent jurisdiction to quash them. It further observed that the 1st Respondent directed the restriction without granting the applicant a hearing. The preliminary objection was dismissed with no order as to costs, dated and delivered at Kajiado on 17th September 2018.

Key legal issues

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01

Whether the judicial review motion offended the six-month limitation in Order 53 rule 2 of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 4
02

Whether the preliminary objection met the test in Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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

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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, "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.