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ELCDismissedJudicial Review Application arising from Notice of Motion dated 29th January, 2018· [2018] KEELC 2295 (KLR)

Simeon Kinyua Ole Lekasi v Senior Resident Magistrate Kajiado & 4 others [2018] KEELC 2295 (KLR)

High Court of Kenya
26 July 2018
COChristine Ochieng
1,046 words in judgment
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The bottom line

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Kenya's High Court cannot extend the strict 21-day deadline to file a judicial review case, so missing it usually ends the case.

What this practically means

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Executive summary

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The Applicant moved the High Court at Kajiado by Notice of Motion dated 29th January, 2018 seeking leave to file a substantive judicial review application out of time. Leave to apply for judicial review had been granted on 19th December, 2017, with directions that further proceedings be filed within 21 days. The Applicant, through its advocate John Masese, explained the delay as arising from the Christmas and New Year court recess and delays in typing and certifying copies of the ruling, which were only ready on 8th January, 2018. The 2nd Interested Party opposed the application through Grounds of Opposition dated 5th April, 2018, contending that the application contravened sections 8 and 9 of the Law Reform Act and Order 53 Rule 3 of the Civil Procedure Rules, and that the Court had neither jurisdiction nor discretion to extend the mandatory 21-day period. In submissions, the Applicant relied on the Court's inherent jurisdiction, Article 159(2)(d) of the Constitution and Order 50 rule 6 of the Civil Procedure Rules. The 2nd Interested Party relied on Court of Appeal authority holding that judicial review is a special procedure to which general civil procedure enlargement provisions do not apply, and that Article 159(2)(d) cannot confer a power the Court does not possess. Framing the sole issue as whether the Court had jurisdiction to enlarge time, Christine Ochieng J held that Order 53 Rule 3(1) makes no provision for enlargement of time once leave has been granted, followed the Amagoro authority, and dismissed the motion with costs.

Key legal issues

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Whether the Court has jurisdiction to enlarge time to file the substantive judicial review motion after expiry of the 21 days granted at leave stage

Holding

The Court has no jurisdiction to enlarge time; Order 53 Rule 3(1) does not provide for enlargement of time once leave has been granted, and judicial review is a special procedure governed by the Law Reform Act and Order 53, excluding importation of general Civil Procedure Rules enlargement provisions.

Reasoning

The Court noted the Applicant had 21 days from 19th December 2017 to file the substantive motion and delayed. Order 53 Rule 3(1) provides a mandatory 21-day period with no provision for enlargement. Following the Court of Appeal in Republic v Chairman Amagoro Land Disputes Tribunal, the judicial review procedure is special in nature and general Civil Procedure Rules provisions cannot be imported into it. Article 159(2)(d) cannot confer a power the Court does not have.

p. 2

Legal principles established

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  • The High Court has no jurisdiction to enlarge the 21-day period under Order 53 Rule 3(1) of the Civil Procedure Rules for filing a substantive judicial review motion once leave has been granted.

Court orders

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  1. 1.The Notice of Motion dated 29th January, 2018 seeking leave to file judicial review out of time is dismissed with costs to the 2nd Interested Party

Authorities

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Legislation

  • Law Reform Actsections 8 and 9
  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Civil Procedure RulesOrder 50 rule 6
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (2)

  • Republic Vs Chairman Amagoro Land Disputes Tribunal & Another, Ex parte Paul Mafwabi Wanyama
    (2014) eKLR
  • Republic Vs Kahindi Nyafula & Another Ex parte Kilifi Farmers Cooperative
    (2014) eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act 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, "Simeon Kinyua Ole Lekasi v Senior Resident Magistrate Kajiado & 4 others [2018] KEELC 2295 (KLR)", Case Analysis (2018). Judicial Review Application arising from Notice of Motion dated 29th January, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2295/eng@2018-07-26

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