Republic v Deputy County Commissioner Makindu Sub-County, Makueni County ; Dismus Kasio Siva & 7 others (Interested Parties) Ex-Parte Joel Mutuku Musango & 3 others [2019] KEELC 4991 (KLR)

Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules bar the grant of leave for certiorari where the application is made later than six months after the judgment, order or proceeding sought to be quashed. The Fair Administrative Action Act, relied on by the Applicants, prescribes no limitation period, but because the Applicants proceeded by miscellaneous application rather than a constitutional petition, the statutory limitation applied and the court had no jurisdiction to entertain the suit.

The Interested Parties submitted that Section 9(3) is a statutory provision without any extension mechanism and that rules made under a statute cannot override a statutory provision. The court accepted that the Applicants could not cure the time bar by the enlargement-of-time prayer included in their leave application, and that jurisdiction could not be conferred by the parties or by reliance on Article 159(2)(d).

The Ex-parte Applicants argued the objection was an afterthought since it was raised after final submissions were filed. The court held that a preliminary objection can be raised at any stage of the proceedings and was therefore properly before it. The court also declined to consider an authority whose citation was incomplete, ignoring it for that reason.