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ELCPartially AllowedJudicial Review Application (Chamber Summons) dated 18th December 2017· [2018] KEELC 3440 (KLR)

Republic v Cabinet Secretary Ministry of Lands Nairobi & 4 others Ex-parte Alexander Mutisya Katuvya (Suing on behalf of the Estate of Joseph Katuvya Mavuti) [2018] KEELC 3440 (KLR)

High Court of Kenya
23 April 2018
CMC. G. MBOGO
1,425 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The ex-parte applicant, Alexander Mutisya Katuvya, brought a chamber summons application under Order 53 rules 1 and 2 of the Civil Procedure Rules seeking leave to apply for judicial review orders of certiorari and prohibition quashing and restraining implementation of the decision of the Deputy County Commissioner in Land Adjudication Appeal No. 334 of 1997 concerning Plot No. MBOONI/MUTITU/3522, and mandamus compelling the 3rd respondent to cancel the certificate of title issued to the interested parties. The interested parties opposed the application through a replying affidavit and raised a preliminary objection on three grounds: that the application was time barred under Order 53 rule 2 and section 9(3) of the Law Reform Act, and that under section 13 of the Environment and Land Court Act only the Environment and Land Court has jurisdiction over land disputes. The court framed two issues: the capacity of Alindan Kioko Valenza to defend the suit, and whether a prima facie point of law existed. On capacity, relying on Virginia Edith Wamboi Otieno and Rajesh Pronjivan Chudasama, the court found the interested party had no letters of administration ad litem and therefore no locus standi, so the objection had no merit on that limb. On the point of law, applying Mukisa Biscuit and following Milka Nyambura Wanderi, the court held that the decision sought to be quashed was delivered on 11th November 2015 while the application was filed in December 2017, far beyond the six-month statutory limit. The court dismissed the preliminary objection but declined to grant leave for judicial review remedies on limitation grounds.

Key legal issues

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01

Capacity of the interested party to defend the suit

Holding

The preliminary objection on capacity fails because the interested party has no letters of administration ad litem and thus no locus standi to defend the suit on behalf of the estate

Reasoning

The interested party deposed that he had only petitioned for a grant of letters of administration ad litem but had not obtained one. Relying on the Court of Appeal decisions in Virginia Edith Wamboi Otieno and Rajesh Pronjivan Chudasama, the court held that locus standi in estate matters vests only upon obtaining a grant. Without the limited grant, the interested party could not lawfully approach the court, so the objection grounded on his incapacity had no merit.

p. 2
02

Whether the application for leave is time barred

Holding

The application for leave is statute barred, having been filed more than six months after the decision of the Deputy County Commissioner delivered on 11th November 2015

Reasoning

Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules prohibit the grant of leave for certiorari beyond six months from the decision. The decision was delivered on 11th November 2015 yet the application was filed on 19th December 2017, far outside the period. Following the Court of Appeal in Milka Nyambura Wanderi, strict compliance with the time limits is mandatory and failure deprives the applicant of judicial review remedies.

p. 3

Legal principles established

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  • A litigant has locus standi upon obtaining a limited or full grant of letters of administration in cases of intestate succession; without such a grant one cannot defend or pursue a suit touching the estate
  • A preliminary objection must consist of a point of law pleaded or arising by clear implication from the pleadings, which if argued may dispose of the suit
  • Leave to apply for certiorari must be sought within six months of the decision sought to be quashed; failure to observe statutory time limits deprives a litigant of judicial review remedies

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Leave for judicial review remedies is declined/refused

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rules 1 and 2
  • Law Reform Act Chapter 26section 9(3)
  • Environment and Land Court Act No. 19 of 2011section 13

Cases cited (4)

  • Virginia Edith Wamboi Otieno Vs Joash Ochieng Ougo and Omollo Siranga
    [1982-1988]
  • Rajesh Pronjivan Chudasama Vs Sailesh Pronjivan Chodasama
    Civil Appeal No. 30 of 2013
  • Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd
    [1969] EA 696
  • Milka Nyambura Wanderi & Another Vs Principal Magistrate's Court, Murang'a & 4 others
    [2014] eKLR
Jurisdiction invoked
Order 53 rules 1 and 2 of the Civil Procedure Rules; leave stage of judicial review

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 Cabinet Secretary Ministry of Lands Nairobi & 4 others Ex-parte Alexander Mutisya Katuvya (Suing on behalf of the Estate of Joseph Katuvya Mavuti) [2018] KEELC 3440 (KLR)", Case Analysis (2018). Judicial Review Application (Chamber Summons) dated 18th December 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3440/eng@2018-04-23

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