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ELCDismissedJudicial Review Application (Notice of Motion dated 5th June, 2017)· [2018] KEELC 3489 (KLR)

George Makwattah v National Land Commission & 3 others [2018] KEELC 3489 (KLR)

High Court of Kenya
19 April 2018
1,014 words in judgment
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The bottom line

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The High Court cannot extend the 21-day deadline for filing a judicial review case in Kenya; missing it ends the case.

What this practically means

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Executive summary

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On 15th February, 2017 the High Court granted the ex parte applicant leave to file a judicial review application within 21 days, requiring filing by 10th March, 2017. The applicant did not file within that period. Over three months later, on 5th June, 2017, he brought a Notice of Motion under Articles 23 and 159(2) of the Constitution, Order 53 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking extension of time, explaining that he was an elderly man of ill health unable to review and attest the supporting affidavits. The respondents and the 1st interested party opposed, arguing the court lacked jurisdiction to extend the time and that the leave had lapsed once the 21 days expired. The 1st interested party relied on the Court of Appeal decision in Republic v Chairman Amagoro Land Disputes Tribunal & Another, Ex parte Paul Mafwabi Wanyama (2014) eKLR, where an order extending time beyond the 21 days was set aside on the ground that judicial review is a special jurisdiction and the judge had erred in importing general extension-of-time provisions. Okong'o J agreed, holding that there is no power under Order 53 to extend the time limited by Rule 3(1) and that Article 159(2) cannot confer power the court does not possess. The Notice of Motion was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the court has power to extend time for filing a judicial review application under Order 53

Holding

The court has no such power; leave lapses if the application is not filed within the 21 days prescribed by Order 53 Rule 3(1)

Reasoning

The court agreed with the respondents and interested party that Order 53 contains no power to extend the time limited for filing a judicial review application after leave. Reliance on Article 159(2) and s.3A cannot cure this because judicial review is a special jurisdiction, and the Court of Appeal in the Amagoro case set aside an order extending time on exactly this ground. The applicant's failure to file within 21 days meant the leave had lapsed, leaving nothing to extend.

p. 2
02

Whether the applicant's explanation for the delay justified extension

Holding

No; the explanation was insufficient and the application lacked merit

Reasoning

The applicant, an elderly man of ill health, argued that illness prevented him reviewing and attesting the supporting affidavits. The respondents contended this explanation was not reasonable and that the application had no basis in law. The court found the application without merit on the jurisdictional point alone, agreeing that once the 21 days lapsed the leave lapsed and there was no basis for the extension sought.

p. 2

Legal principles established

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  • Judicial review jurisdiction is a special jurisdiction; the time for filing a judicial review application under Order 53 Rule 3(1) cannot be extended by importing general Civil Procedure Rules provisions on extension of time, nor by Article 159(2) of the Constitution

Court orders

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  1. 1.The Notice of Motion dated 5th June, 2017 is dismissed
  2. 2.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 23
  • Civil Procedure RulesOrder 53, Rule 3(1)
  • Civil Procedure ActSection 3A
  • Law Reform Act, Chapter 26Sections 8 and 9

Cases cited (1)

  • Republic -vs- Chairman Amagoro Land Disputes Tribunal & Another, Ex parte Paul Mafwabi Wanyama
    (2014) eKLR
Jurisdiction invoked
Articles 23 and 159(2) of the Constitution of Kenya; Order 53 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act, Cap 21

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, "George Makwattah v National Land Commission & 3 others [2018] KEELC 3489 (KLR)", Case Analysis (2018). Judicial Review Application (Notice of Motion dated 5th June, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3489/eng@2018-04-19

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