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ELCDismissedJudicial Review Application dated 22/5/2020 (Chuka)· [2020] KEELC 628 (KLR)

Joseph Nyaga Mwikamba v County Government of Tharaka Nithi [2020] KEELC 628 (KLR)

High Court of Kenya
18 November 2020
1,502 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to hear a challenge to a 2017 land decision because it was filed nearly three years too late.

What this practically means

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Executive summary

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The applicant, Joseph Nyaga Mwikamba, moved the High Court at Chuka by an ex parte originating summons dated 22 May 2020 under Order 37 rule 6 and Section 3A of the Civil Procedure Act seeking leave to commence judicial review proceedings out of time against a decision of the District Commissioner made on or about 6 July 2017, which held that the respondent was the beneficial owner of Land Parcel No. 2375. The applicant explained the delay by ill health, supported by medical records, and relied on the Fair Administrative Action Act, Article 159 of the Constitution and Republic v Kenya Revenue Authority ex parte Stanley Mombo Amuti, arguing that no prejudice would befall the respondent. The court considered Order 53 rule 2 of the Civil Procedure Rules, which bars the grant of leave to apply for certiorari more than six months after the proceeding, and the Court of Appeal's decision in Telkom Kenya Limited v John Ochanda, which holds that Article 159(2)(d) does not whitewash procedural failings or place procedural rules at naught. The court observed that the applicant did not specify the date of the impugned decision and admitted that time had lapsed. Finding the application contrary to the extant procedural requirements, the court dismissed the application and issued no order as to costs. The judgment was delivered at Chuka on 18 November 2020 by P. M. Njoroge J, the respondent and its advocate being absent.

Key legal issues

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01

Extension of time to institute judicial review proceedings

Holding

The application was dismissed because it was brought outside the six-month period prescribed by Order 53 rule 2 of the Civil Procedure Rules and the applicant did not specify or adequately justify the delay

Reasoning

The impugned decision was made around July 2017, yet the applicant did not specify its date in the application or affidavit and admitted that time had lapsed. Although he attributed the delay to ill health, the court held that compliance with procedural rules is essential, relying on Telkom Kenya Ltd v John Ochanda, and found the application contrary to the extant procedural requirements.

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02

Effect of Article 159(2)(d) on procedural requirements

Holding

The constitutional command to administer justice without undue regard to procedural technicalities does not whitewash every procedural failing or nullify procedural rules

Reasoning

Adopting the Court of Appeal's reasoning in Telkom Kenya Limited v John Ochanda, the court held that Article 159(2)(d) does not place procedural rules at naught and that compliance with rules of procedure serves substantial justice rather than defeating it.

p. 3

Legal principles established

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  • An application for leave to apply for certiorari must be made not later than six months after the date of the proceeding
  • Statutory procedural requirements are not mere technicalities to be overridden by Article 159(2)(d)

Court orders

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  1. 1.This application is hereby dismissed
  2. 2.I issue no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 37 rule 6
  • Civil Procedure RulesOrder 53 rule 2
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 23(3)(f)
  • Fair Administrative Action Actsections 7 and 8
  • Law Reform Actnot specified

Cases cited (3)

  • Republic v Public Procurement Administration Review Board ex parte Syner Chemie
    [2016] eKLR
  • Republic v Kenya Revenue Authority Ex-Parte Stanley Mombo Amuti
    [2018] eKLR
  • Telkom Kenya Limited versus John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd
    [2014] EKLR
Jurisdiction invoked
Order 37 rule 6 and Section 3A of the Civil Procedure Act (judicial review leave under Order 53 Civil Procedure Rules)

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, "Joseph Nyaga Mwikamba v County Government of Tharaka Nithi [2020] KEELC 628 (KLR)", Case Analysis (2020). Judicial Review Application dated 22/5/2020 (Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/628/eng@2020-11-18

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