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ELCStruck OutJudicial Review No. 20 of 2017· [2018] KEELC 3972 (KLR)

Republic v National Land Commission & 6 others Ex-Parte Abdifaisal Amin Abdullahi [2018] KEELC 3972 (KLR)

Environment and Land Court
19 March 2018
ECE.C. Cherono
2,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's courts cannot extend the 21-day deadline for filing a judicial review case, so missing it by even one day kills the case entirely.

What this practically means

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Executive summary

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The ex parte applicant, Abdifaisal Amin Abdullahi, obtained leave on 25th September 2017 to apply for orders of certiorari, mandamus and prohibition arising from a dispute over Plot No. GSA/2469 in Garissa County, including orders compelling the National Land Commission and Director of Physical Planning to issue a Part Development Plan (PDP No. 326/2017/18) and certificate of title, and quashing the alleged use of police by the 7th respondent, Ali Bunow Korane, to take forceful possession of the property. The court granted leave operating as a stay and directed that the substantive motion be filed within 21 days. The applicant filed the substantive notice of motion on 1st November 2017, which the 2nd, 4th and 7th respondents opposed by preliminary objection on the ground that it was filed outside the 21 days without fresh leave. The applicant applied for extension of time. After written submissions, the court framed four issues and held that Order 53 Rule 3(1) of the Civil Procedure Rules is mandatory: the substantive motion must be filed within 21 days, and neither Article 159(2) of the Constitution nor Order 50 Rule 6 confers jurisdiction to enlarge that period, judicial review being a special jurisdiction under the Law Reform Act. Following the Motor Vessel 'GLOBE YOUR' decision, the Kilifi South East Farmers decision and Commissioner of Lands v Kunste Hotel Ltd, the court struck out the substantive motion and ordered each party to bear its own costs.

Key legal issues

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01

Jurisdiction to enlarge time for filing the substantive judicial review motion

Holding

The court has no jurisdiction to extend the 21-day period under Order 53 Rule 3(1); the substantive motion filed outside that period is incompetent and must be struck out.

Reasoning

The court held that Order 53 Rule 3(1) is mandatory. Judicial review is a special jurisdiction under sections 8 and 9 of the Law Reform Act, so civil-procedure extensions do not apply. Article 159(2) does not dispense with all procedural requirements. Following Waki J in the Motor Vessel 'GLOBE YOUR' case and Angole J in the Kilifi South East Farmers case, and the Court of Appeal in Commissioner of Lands v Kunste Hotel Ltd, extension was impermissible.

p. 4

Legal principles established

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  • The 21-day period for filing the substantive judicial review motion under Order 53 Rule 3(1) is mandatory and cannot be extended by the court, even with the aid of Article 159(2) of the Constitution or Order 50 Rule 6.

Court orders

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  1. 1.The Notice of Motion dated 24th November, 2017 is struck out
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 50 Rule 6
  • Constitution of Kenya 2010Articles 22, 47, 159 (including 159(2))
  • Fair Administrative Action ActSections 7 and 9
  • Interpretation and General Provisions ActSection 59
  • Law Reform ActSections 8 and 9
  • Physical Planning ActNot specified
  • National Land Commission ActNot specified
  • Land Act 2012Not specified

Cases cited (9)

  • Republic v Nema & Another
    [2012] eKLR
  • Kenya Bureau of Standards & 3 Others v Kenya Maritime Authority, Exparte Car Importers Association
    [2014] eKLR
  • Republic v Public Procurement Administrative Review Board Exparte Syner Chemice Ltd
    [2016] eKLR
  • Francis Kimutai Bil v Kauisugu (K) Ltd
    [2016] eKLR
  • Nicholas Kipchirchir Kimaiyo v Wilson Kibet Kimutai & Another
    [2014] eKLR
  • Barrack Ogulo Otieno v Instarect Limited
    [2015] eKLR
  • Re-An Application by the Owners of the Motor Vessel "GLOBE YOUR"
    [1998] eKLR
  • Republic v Kahindi Nyafula & 3 Others Exparte Kilifi South East Farmers Co-operative
    Malindi ELC JR No. 3 of 2013
  • Commissioner of Lands v Kunste Hotel Ltd
    CA No. 234 of 1995, Nakuru
Jurisdiction invoked
Order 53 Rules 1 and 3 of the Civil Procedure Rules; section 7 of the Fair Administrative Action Act 2015

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 National Land Commission & 6 others Ex-Parte Abdifaisal Amin Abdullahi [2018] KEELC 3972 (KLR)", Case Analysis (2018). Judicial Review No. 20 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3972/eng@2018-03-19

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