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ELCPartially AllowedNot stated in judgment (amended chamber summons dated 1st October 2021)· [2021] KEELC 1335 (KLR)

Judah Muthee Festus v Adjudication & another; Joseph Mathita Ikirima (Interested Party) [2021] KEELC 1335 (KLR)

Environment and Land Court
27 October 2021
763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The court allowed a Kenyan landowner to challenge a land adjudication decision late in the process, but refused to pause the decision while the case proceeds.

What this practically means

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Executive summary

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By an amended chamber summons dated 1st October 2021, the exparte applicant sought leave to commence judicial review proceedings for certiorari to quash the 1st respondent's decision dated 23rd November 2020 dismissing objection No. 938 concerning Parcel No. 2757 Karama Adjudication Section, together with prohibition, mandamus directing the 1st respondent to hear the objection, and an order that leave do act as a stay. The application was anchored on Order 53 of the Civil Procedure Rules and Sections 7, 9, 10 and 11 of the Fair Administrative Actions Act. The applicant relied on two High Court authorities on the principles at the leave stage and on leave acting as a stay. The court took judicial notice that although the impugned decision was made on 23rd November 2020, the leave application filed on 11th February 2021 was within the six-month period under Order 53 Rule 2, but was not prosecuted on time due to inadvertence on the part of the applicant or the court. The court held that Order 53 must be read together with Articles 22, 23(3)(f), 47 and 159(2)(d) of the Constitution and the Fair Administrative Actions Act, and that denying leave would be contrary to the Constitution where the applicant had submitted himself within time. Leave was granted to commence judicial review proceedings. However, because the applicant failed to disclose the status of the land adjudication process and whether the impugned decision had been implemented, and given the internal mechanisms under the Land Adjudication Act Cap 284, leave was ordered not to act as stay. The notice of motion was to be filed and served within 7 days, with costs in the course.

Key legal issues

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01

Timeliness of the application for leave

Holding

The application having been filed within six months under Order 53 Rule 2, the inadvertent failure to prosecute it on time, whether attributable to the applicant or the court, should not defeat the applicant's right of access to justice

Reasoning

The court took judicial notice that the leave application was filed on 11th February 2021 within the six-month window. It acknowledged inadvertent mistake on the part of the applicant or the court meant leave was not granted on time. Reading Order 53 with Article 159(2)(d), the court held it would be contrary to the Constitution to deny the applicant his rights where he submitted himself before the court within time.

p. 2
02

Whether leave should operate as a stay

Holding

Leave was granted but expressly did not act as a stay, because the applicant failed to disclose material facts on the status of the land adjudication process

Reasoning

The court noted the Land Adjudication Act Cap 284 has internal mechanisms for dealing with such eventualities, and the applicant did not explain whether the impugned decision had been implemented. Having not succinctly disclosed all material facts, the applicant failed to meet the principles for leave to act as a stay, so leave was granted without stay.

p. 2
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Interaction of Order 53 with Article 47 and the Fair Administrative Actions Act

Holding

Order 53 must be read together with the Constitution and the Fair Administrative Actions Act; the High Court retains power under Article 23(3)(f) to entertain judicial review to enforce the Bill of Rights

Reasoning

The court observed that both Article 47 and the FAA Act are silent on whether leave is still mandatory for judicial review. Section 14 of the FAA Act requires the Chief Justice to formulate rules; in their absence parties still use Order 53. The court concluded the provisions must be read harmoniously with the letter and spirit of the Constitution.

p. 2

Legal principles established

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  • Order 53 must be read together with the letter and spirit of the Constitution and the Fair Administrative Actions Act, so that an application for leave filed within six months is not defeated by inadvertent failure to prosecute it timely
  • In the absence of rules formulated by the Chief Justice under Section 14 of the Fair Administrative Actions Act, parties continue to use Order 53 of the Civil Procedure Rules, and Article 22(4) provides that absence of such rules does not limit the right to commence proceedings

Court orders

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  1. 1.Leave granted to the exparte applicant to commence judicial review proceedings
  2. 2.Leave shall not act as stay of the implementation of the decision dated 23rd November 2020
  3. 3.The notice of motion shall be filed and served within 7 days from the date of the ruling
  4. 4.Costs in the course

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3; Order 53 Rules 1(1), 2, 3 and 4
  • Fair Administrative Actions ActSections 7, 9, 10, 11 and 14
  • Land Adjudication ActCap 284
  • Constitution of Kenya, 2010Articles 22, 22(4), 23(3)(f), 47 and 159(2)(d)

Cases cited (2)

  • Republic –v County Council of Kwale & Another Ex Parte Kondo & 57 Others
    (1998) IKLR E & L
  • National Hospital Insurance Fund Management Board exparte Patanisho Maternity & Nursing Home
    (2019) eKLR
Jurisdiction invoked
Articles 22, 23(3)(f), 47 and 159(2)(d) of the Constitution; Fair Administrative Actions Act, 2015; 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, "Judah Muthee Festus v Adjudication & another; Joseph Mathita Ikirima (Interested Party) [2021] KEELC 1335 (KLR)", Case Analysis (2021). Not stated in judgment (amended chamber summons dated 1st October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1335/eng@2021-10-27

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