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ELCDismissedJudicial Review (Chamber Summons dated 17th June 2019), Nyahururu· [2019] KEELC 1026 (KLR)

Paul Ndungu Nyokabi & 31 others v John Nzioki Nzuki & 4 others [2019] KEELC 1026 (KLR)

Environment and Land Court of Kenya
5 November 2019
2,945 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot extend the six-month deadline for certiorari; a 19-year delay sank the applicants' challenge to a 2000 tribunal award.

What this practically means

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Executive summary

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This was a ruling on a Chamber Summons dated 17th June 2019 in which the ex parte Applicants sought leave to file judicial review writs of Certiorari, Prohibition and Mandamus out of time, and for that leave to operate as a stay of execution and eviction arising from proceedings in Nyahururu CMCC No. 21 of 2000. The challenge was directed at the award of the Nyandarua District Lands Tribunal Dispute No. 16, made on 23rd October 2000 and adopted as a decree of the Principal Magistrate's Court on 13th December 2000, on the ground that the Tribunal lacked jurisdiction over title to registered land. The 1st and 2nd Respondents opposed, arguing that Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules required certiorari applications within six months, that the court had no power to extend that period, and that the Applicants were guilty of 19 years of inordinate delay, having also litigated and lost suits and an appeal over the same land without disclosing this to the court. The court framed two issues: whether it lacked jurisdiction to enlarge time for filing certiorari, and whether the Applicants deserved the orders sought. Relying on superior court authority, including Owners of the Motor Vessel 'Lilian S', it held it had no power to extend the six-month period. It further held that the adopted tribunal award could only be varied, vacated, set aside or reviewed by the same or an appellate court, and that equity assists the vigilant, not the indolent. The application was dismissed with costs to the 2nd and 3rd Respondents.

Key legal issues

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01

Jurisdiction to enlarge time for filing judicial review orders of certiorari

Holding

The court lacks jurisdiction to extend the six-month statutory period; Order 53 Rule 2 of the Civil Procedure Rules does not allow leave for certiorari after expiry of six months from the date of the order or decision complained of.

Reasoning

The impugned tribunal award was made on 23rd October 2000 and its decree passed on 13th December 2000, but the application for leave was filed on 17th June 2019, roughly 19 years later. Order 53 Rule 2 of the Civil Procedure Rules provides no extension mechanism. The Law Reform Act similarly contains no provision for extension of time. The court was bound by superior court decisions confirming this lack of jurisdiction, while the applicant's authorities from courts of equal status were merely persuasive.

p. 4
02

Whether the applicants deserved the discretionary relief sought

Holding

The applicants were guilty of inordinate delay and had failed to pursue the statutory appeal route; equity assists the vigilant, not the indolent, and the adopted award could only be challenged in proper proceedings before the same or an appellate court.

Reasoning

The applicants elected not to appeal under Section 8 of the repealed Land Disputes Tribunal Act within stipulated timelines and had already litigated and lost suits and an appeal over the same subject matter. Once the tribunal award was adopted as a decree of the Principal Magistrate's Court, it ceased to exist on its own and could only be varied, vacated, set aside or reviewed by the same or an appellate court. Relitigating a finally determined issue through judicial review was impermissible.

p. 4
03

Whether improper titling of the judicial review application was fatal

Holding

Improper institution at leave stage was a curable irregularity, not a ground for dismissal of an otherwise competent application.

Reasoning

The court noted that the applicant in judicial review is the Republic, not the person aggrieved, but held that a defect in form, misjoinder or nonjoinder is an irregularity curable by amendment. It endorsed the finding that failure to properly institute proceedings may affect costs or attract a penalty in costs but should not of itself justify dismissing a competent application.

p. 3

Legal principles established

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  • A court has no power to extend the statutory six-month period for applying for orders of certiorari under Order 53 Rule 2 of the Civil Procedure Rules.
  • A tribunal award adopted by a court ceases to exist on its own and can only be varied, vacated, set aside or reviewed by the same or an appellate court in appropriate proceedings.

Court orders

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  1. 1.The application dated 17th June 2019 is dismissed with costs to the 2nd and 3rd Respondents.

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Sections 3 and 8
  • Law Reform Act Cap 26 Laws of KenyaSection 9(3)
  • Civil Procedure RulesOrder 53 Rule 2

Cases cited (14)

  • Republic vs. Land Disputes Tribunal Kitui District & Another; Ngotho Ndelu (Interested Party) Ex Parte Mukai Katama
    [2019] eKLR
  • Republic vs. Kenya Revenue Authority Ex-parte Stanley Mombo Amuti
    [2018] eKLR
  • Rosaline Tubei & 8 Others vs. Patrick K Cheruiyot & 3 Others
    [2014] eKLR
  • Republic vs. Chairman Amagoro Land Disputes Tribunal & Another Ex-parte Paul Mafwabi Wanyama
    [2014] eKLR
  • Farmers Bus Service & Others vs. Transport Licensing Appeal Tribunal
    [1959] EA 779
  • Mohamed Ahmed vs. R
    [1957] EA 523
  • Jotham Mulati Welamondi vs. The Electoral Commission of Kenya
    Bungoma H.C. Misc. Appl. No. 81 of 2002 [2002] 1 KLR 486
  • Republic Ex Parte the Minister for Finance & The Commissioner of Insurance as Licensing and Regulating Officers vs. Charles Lutta Kasamani T/A Kasamani & Co. Advocate & Another
    Civil Appeal (Application) No. Nai. 281 of 2005
  • Masagu Ole Koitelel Naumo v Principal Magistrate Kajiado Law Courts & another
    [2014] eKLR
  • James Githinji Kiara –vs- William Wachira Mwaniki
    [2005] eKLR
  • Kimanzi Mboo –vs- David Mulwa
    CA No. 233 of 1996
  • Wilson Osolo –vs- John Onjiambo & Another
    [1991] eKLR
  • Owners of the Motor Vessel "Lilian S" v. Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    [2014] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and the Law Reform Act Cap 26

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, "Paul Ndungu Nyokabi & 31 others v John Nzioki Nzuki & 4 others [2019] KEELC 1026 (KLR)", Case Analysis (2019). Judicial Review (Chamber Summons dated 17th June 2019), Nyahururu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1026/eng@2019-11-05

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