Republic v Chairman Evurore Land Disputes Tribunal & another Exparte Andrew Njue Mwaniki [2018] KEELC 2350 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Timeliness of the substantive judicial review motion
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.
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.
Whether the Tribunal acted in excess of jurisdiction
Not determined, because the application was incompetent and there was nothing properly before the court.
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.
Costs
Costs follow the event; the successful Respondent and interested party were awarded costs.
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.
Legal principles established
#- 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
#- 1.The Applicant's notice of motion dated 22nd November 2012, amended on 11th August 2017, is incompetent and is struck out
- 2.Costs to the Respondent and the interested party
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules and section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.