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ELCDismissedJudicial Review Application No. 7 of 2017· [2018] KEELC 2442 (KLR)

Republic v Attorney General Cabinet Secretary Ministry of Agriculture & another [2018] KEELC 2442 (KLR)

Environment and Land Court
12 July 2018
NMN.A. Matheka
2,705 words in judgment
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The bottom line

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A Kenyan court dismissed a 30-year-delayed mandamus application, confirming judicial review must be filed within six months—no exceptions without leave.

What this practically means

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Executive summary

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This was an ex parte application by George Peter Bwire Ogengo, brought by notice of motion dated 14th November 2014 under Order 53 Rule 3(1) of the Civil Procedure Rules, seeking an order of mandamus to compel the Attorney General and Cabinet Secretary, Ministry of Agriculture to open a direct road access to the main road and water points as decreed by E. Gicheru J. in Kakamega HCC No. 58 of 1982, in which the applicant had been awarded general damages of Kshs. 74,537.50 plus costs and interest, and an order that the respondents open road access to his remaining parcels Marachi/Bujumba/980 and 979. The applicant argued he was barred from executing against the government and had no remedy other than mandamus, invoking Articles 48 and 159 of the Constitution and contending that the six-month limitation in Order 53 Rule 2 applied only to certiorari. The respondents opposed, submitting the application was fatally incompetent under section 9(2) of the Law Reform Act as it was filed some 31 years after the decree, without leave to file out of time; they relied on Laban Macharia v Commissioner of Insurance and further argued that agriculture had devolved to county governments under the Fourth Schedule, rendering the orders sought ineffective. The court framed two issues: competence and entitlement. Following Raila Odinga & 6 Others v Nairobi City Council, it held the six-month period in section 9(2) is absolute, that Order 53 cannot extend it, and that limitation goes to jurisdiction rather than being a curable technicality. Finding the delay of over 30 years unexplained and the application time barred, the court dismissed the application with costs on 12th July 2018.

Key legal issues

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01

Whether the application for mandamus is barred by the six-month limitation in section 9(2) of the Law Reform Act

Holding

The application is time barred and incompetent; the delay of over 30 years was unexplained and no leave to file out of time was obtained

Reasoning

The decree sought to be enforced was made in 1983 (judgment entered 22/7/1985) while the application was filed on 14th July 2014 without leave to file out of time. Relying on Raila Odinga & 6 Others v Nairobi City Council, the court held that the six-month period in section 9(2) of the Law Reform Act is absolute; Order 53 cannot extend it since an Act of Parliament cannot be amended by subsidiary legislation. Limitation in judicial review goes to jurisdiction and is not a mere technicality excusable under Article 159(2)(d).

p. 3
02

Whether the applicant is entitled to the orders sought

Holding

Not entitled; the application was dismissed with costs

Reasoning

Having found the application time barred, the court concluded it had no merit. The respondent had also argued that circumstances had changed, agriculture having devolved to county governments under Part 2 of the Fourth Schedule, making mandamus against the national respondents ineffective, but the court's dismissal rested squarely on the limitation bar.

p. 4

Legal principles established

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  • Applications for judicial review orders of mandamus, prohibition or certiorari must be made promptly and within a maximum period of six months, and Order 53 cannot override the statutory limitation in section 9(2) of the Law Reform Act
  • Limitation in judicial review goes to jurisdiction and is not a procedural technicality curable under Article 159(2)(d)

Court orders

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  1. 1.The application dated 14th November 2014 seeking an order of mandamus is dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159 (incl. 159(2)(a)(b) and 159(2)(d))
  • Constitution of Kenya 2010Article 48
  • Constitution of Kenya 2010Article 10
  • Constitution of Kenya 2010Fourth Schedule Part 2
  • Law Reform Act Cap 26Sections 8 and 9 (incl. 9(2))
  • Civil Procedure Act Cap 21-
  • Civil Procedure Rules 2010Order 53 (Rules 2, 3(1), 7)
  • Government Proceedings Act-

Cases cited (6)

  • Republic Vs Kenya Vision 2030 Delivery Board and Another Exparte Eng. Judah Abekah
    (2015) eKLR
  • Republic Vs Town Clerk of Webuye County Council and Another
    HCC No. 448 of 2006
  • R V County Secretary, Nairobi City County and Another Vs Ex-Parte Wachira Nderitu Ngugi And Co. Advocates
    (2016) eKLR
  • Republic vs The Attorney General and Another Ex Parte James Alfred Koroso
    High Court J.R Miscellaneous No. 44 of 2012
  • Laban Macharia vs. Commissioner of Insurance & another
    2005 1 eKLR
  • Raila Odinga & 6 Others vs. Nairobi City Council
    Nairobi HCCC No. 899 of 1993; (1990-1994) EA 482
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act Cap 26 and Order 53 Rule 3(1) 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Attorney General Cabinet Secretary Ministry of Agriculture & another [2018] KEELC 2442 (KLR)", Case Analysis (2018). Judicial Review Application No. 7 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2442/eng@2018-07-12

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