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ELCDismissedNotice of motion dated 9.7.2019 (Judicial Review)· [2021] KEELC 497 (KLR)

Republic v Igembe North Sub-County Land Adjuciation & Settlement Officer & another; Ezekiak M’itha (Interested Party) [2021] KEELC 497 (KLR)

Environment and Land Court
8 December 2021
CNC.K. Nzili
1,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court-style ELC in Meru threw out a landowner's late bid to force a land officer to rehear his objection because he waited too long to file.

What this practically means

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Executive summary

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The exparte applicant sought an order of mandamus compelling the 1st respondent, the Land Adjudication Officer Igembe North, to rehear A/R objection No. 2285 of 2010 concerning Plot No. 325 with the involvement of land committee members, following a quashing order of 14.6.2018 in Meru ELC No. 24 of 2012. The respondents opposed, citing non-exhaustion of remedies, lack of cause of action and lack of jurisdiction; the interested party raised res judicata. The court framed two issues: whether the application was in line with the law, and whether the applicant was entitled to the orders. Relying on Wilson Osolo v John Ojiambo Ochola, Ako v Special District Commissioner, and Republic v Attorney General Cabinet Secretary Ministry of Agriculture, the court held that the six-month limitation in Sections 9(2) and 9(3) of the Law Reform Act is mandatory and goes to jurisdiction. The quashing decision was made on 14.6.2018, giving the applicant until 14.1.2019, yet the motion was dated 9.7.2019 and the delay was unexplained. The court further found that the earlier judicial review involving the same parties had been determined to finality and was not appealed; no decree was shown to have been extracted and served; and the proper course was to enforce the decree ordinarily rather than file a fresh, similar application, which offended Section 7 of the Civil Procedure Act as res judicata. The application was dismissed with costs.

Key legal issues

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01

Whether the mandamus application was filed within the limitation period under the Law Reform Act

Holding

The application was time-barred; the quashing decision of 14.6.2018 required any judicial review application to be lodged by 14.1.2019 and the delay was unexplained

Reasoning

The court applied Section 9(2) and 9(3) of the Law Reform Act as explained in Wilson Osolo and Ako v Special District Commissioner, holding the six-month rule mandatory and jurisdictional. The decision under challenge was made on 14.6.2018 and the motion dated 9.7.2019 was filed outside the window with no explanation for the delay.

p. 2
02

Whether the application was res judicata

Holding

The mandamus claim against the same parties and on the same facts, after a prior judicial review had been determined to finality, offended Section 7 of the Civil Procedure Act

Reasoning

The previous judicial review involved the same parties, was determined to finality and was not appealed. The applicant should have sought mandamus in that earlier application or enforced the resulting decree through ordinary execution, not by a fresh application seeking a different prayer on the same facts.

p. 2

Legal principles established

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  • Leave for judicial review under Section 9(3) of the Law Reform Act shall not be granted unless the application is made within six months of the event; the time bar goes to jurisdiction
  • An issue of time limitation in judicial review is not a procedural technicality but goes to jurisdiction

Court orders

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  1. 1.The notice of motion dated 9.7.2019 seeking an order of mandamus to compel the 1st respondent to rehear A/R objection No. 2285 of 2010 is dismissed
  2. 2.Costs of the application awarded to the respondents and interested party

Authorities

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Legislation

  • Law Reform ActSection 9(2)
  • Law Reform ActSection 9(3)
  • Law Reform ActSection 8
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 50 rule 6
  • Civil Procedure RulesOrder 53
  • Fair Administrative Actions Act
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (9)

  • Peter Kimandiu –vs- Land Adjudication Officer Tigania West District & 4 Others
    [2016] eKLR
  • Peris Wambogo Nyaga –vs- Kenyatta University
    [2014] eKLR
  • Laban Macharia –vs- Commissioner of Insurance & Another
    [2005] eKLR
  • Republic –vs- Attorney General Cabinet Secretary Ministry of Agriculture & Another
    [2018] eKLR
  • Republic –vs- Cabinet Secretary Lands; Elijah Muema Kitavi & Another Ex Parte Raphael Kakene Muloki & Another
    [2019] eKLR
  • Raila Odinga & 6 Others –vs- Nairobi City Council
    [1990-94] E.A 482
  • Wilson Osolo –vs- John Ojiambo Ochola & Another
    [1996] eKLR
  • Ako –vs- Special District Commissioner, Kisumu & Another
  • Republic –vs- Public Procurement Administrative Review Board & Another, Mer Security & Communications System Ltd/Megason Electronics & Control, ExParte Magal Security Systems Ltd/Firefox Kenya Limited (JV)
    [2019] eKLR
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act (Sections 8 and 9) and Order 53 of the 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, "Republic v Igembe North Sub-County Land Adjuciation & Settlement Officer & another; Ezekiak M’itha (Interested Party) [2021] KEELC 497 (KLR)", Case Analysis (2021). Notice of motion dated 9.7.2019 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/497/eng@2021-12-08

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