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ELCStruck OutMisc ELC No. 38 of 2014 (formerly Civil Suit No. 17 of 2012)· [2018] KEELC 2350 (KLR)

Republic v Chairman Evurore Land Disputes Tribunal & another Exparte Andrew Njue Mwaniki [2018] KEELC 2350 (KLR)

Environment and Land Court of Kenya at Embu
28 June 2018
1,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A landowner lost his bid to overturn a tribunal decision because he filed his court application 42 days late instead of within 21 days.

What this practically means

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Executive summary

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The ex-parte Applicant, Andrew Njue Mwaniki, sought leave on 13th June 2012 under Order 53 of the Civil Procedure Rules to apply for certiorari to quash the award of the Siakago Land Disputes Tribunal in Tribunal case No. 462 of 2010, contending the Tribunal acted without jurisdiction by hearing a dispute over parcel Evurore/Nthambu/657 already determined by a court of competent jurisdiction. Leave was granted on 10th October 2012 with directions to file the substantive motion within twenty-one days. The Applicant filed the substantive notice of motion on 22nd November 2012, later amended on 11th August 2017, seeking certiorari, a declaration that the Tribunal's ruling was null and void, and reinstatement of his name as owner of the parcel by the Land Registrar. The Respondent, through a replying affidavit of Margaret Njoroge, opposed the application as time-barred and contended the Tribunal's award had ceased to exist upon adoption as a decree of the Magistrate's court; the interested party likewise opposed, alleging fraudulent acquisition and defectiveness. The court framed three issues: timeliness, excess of jurisdiction, and costs. Applying Order 53 Rule 3(1), the court found the substantive motion filed about 42 days after leave, with no extension of time obtained, so the leave had lapsed and the application was incompetent. It therefore declined to consider whether the Tribunal exceeded jurisdiction. Applying the principle that costs follow the event, citing Hussein JanMohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court struck out the notice of motion with costs to the Respondent and interested party.

Key legal issues

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01

Timeliness of the substantive judicial review motion

Holding

The notice of motion filed 22nd November 2012, about 42 days after leave granted on 10th October 2012, was filed out of time and was incompetent.

Reasoning

Order 53 Rule 3(1) requires the substantive application to be made within twenty-one days of the grant of leave unless the judge has otherwise directed. The Applicant filed about 42 days later and never sought or obtained an extension of time. The initial leave lapsed upon expiry of the 21 days, leaving no competent application before the court.

02

Whether the Tribunal acted in excess of jurisdiction

Holding

Not determined, because the application was incompetent and there was nothing properly before the court.

Reasoning

Having found the judicial review application incompetent for being filed out of time, the court held there was no need to consider the merits, including the allegation that the Tribunal entertained a land ownership dispute already determined by a court of competent jurisdiction.

p. 2
03

Costs

Holding

Costs follow the event; the successful Respondent and interested party were awarded costs.

Reasoning

The court applied the general rule that costs usually follow the event, citing Hussein JanMohamed & Sons v Twentsche Overseas Trading Co. Ltd, and awarded costs to the Respondent and the interested party upon striking out the motion.

p. 2

Legal principles established

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  • A substantive judicial review application under Order 53 Rule 3(1) must be filed within twenty-one days of the grant of leave unless the judge granting leave otherwise directs; filed outside that period and without extension of time, it is incompetent and liable to be struck out.
  • Costs follow the event and a successful litigant should be awarded costs unless for good reason the court orders otherwise.

Court orders

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  1. 1.The Applicant's notice of motion dated 22nd November 2012, amended on 11th August 2017, is incompetent and is struck out
  2. 2.Costs to the Respondent and the interested party

Authorities

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Legislation

  • Civil Procedure RulesOrder 53; Order 53 Rule 3(1)
  • Civil Procedure Actsection 3A

Cases cited (1)

  • Hussein JanMohamed & Sons Vs Twentsche Overseas Tading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Order 53 of the Civil Procedure Rules and section 3A of the Civil Procedure Act

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 Chairman Evurore Land Disputes Tribunal & another Exparte Andrew Njue Mwaniki [2018] KEELC 2350 (KLR)", Case Analysis (2018). Misc ELC No. 38 of 2014 (formerly Civil Suit No. 17 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2350/eng@2018-06-28

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