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ELCDismissedJudicial Review Miscellaneous Application (Motion dated 6th November 2020)· [2021] KEELC 3314 (KLR)

Republic v M’Thiringi M’Anmpiu & another v District Land Adjudication Officer & Settlement Officer Tigania East & another; Peter Miriti M’Lingera & 4 others (Interested Parties) [2021] KEELC 3314 (KLR)

Environment and Land Court
12 May 2021
LMLucy N. Mbugua
747 words in judgment
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The bottom line

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A Kenyan court refused to revive a judicial review case because the applicants never filed their substantive motion within the required 21 days, leaving nothing to reinstate.

What this practically means

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Executive summary

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This was a notice of motion dated 6th November 2020 under Section 3A of the Civil Procedure Act and Order 12 rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, seeking reinstatement of a suit dismissed on 16.7.2018, revival of orders granted on 22.2.2017, and substitution of the deceased 1st ex parte applicant with Joseph Thiringi M'Thiringi, administrator of the estate. The 2nd applicant, Mariqueta Nkoyai M'Thiringi, explained the delay as stemming from her advocate's failure to give adequate information after her father and co-applicant died. The interested parties opposed, contending the applicants had not prosecuted the cause for almost four years and that equity aids the vigilant, not the indolent. Justice Lucy N. Mbugua found that although leave to apply for judicial review orders of certiorari, mandamus and prohibition over parcels 3869 and 3870 was granted on 22.2.2017, with directions that the substantive motion be filed within 21 days, no substantive motion was ever filed. Under Order 53(3), such an application must be made within twenty-one days. Applying Mary Kiunga Ikiome v H Young Company Ltd, the court held there was no suit in existence even at dismissal, and that Articles 50 and 159 of the Constitution could not salvage the situation. The application was dismissed with costs to the interested parties.

Key legal issues

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01

Whether a judicial review suit exists where leave was granted but no substantive motion was filed within 21 days

Holding

There is nothing to reinstate because the substantive motion was never filed within the 21-day period prescribed by Order 53(3)

Reasoning

The court found that although leave to apply for certiorari, mandamus and prohibition was granted on 22.2.2017 with directions to file the substantive motion within 21 days, no such motion was ever filed. Order 53(3) requires the application to be made within 21 days. Consequently, even at the time of dismissal on 16.7.2018, no judicial review suit existed. Constitutional provisions invoked by the applicants could not salvage the situation.

p. 2

Legal principles established

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  • Article 159(2)(d) of the Constitution cannot cure the absence of a suit never filed within the statutory period

Court orders

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  1. 1.The application dated 6.11.2020 is dismissed with costs to the interested parties

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 53 (3)
  • Constitution of KenyaArticles 50 and 159(2)(d)

Cases cited (1)

  • Mary Kiunga Ikiome v H Young Company Ltd
    [2019] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Order 12 rule 7 and Order 51 Rule 1 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 M’Thiringi M’Anmpiu & another v District Land Adjudication Officer & Settlement Officer Tigania East & another; Peter Miriti M’Lingera & 4 others (Interested Parties) [2021] KEELC 3314 (KLR)", Case Analysis (2021). Judicial Review Miscellaneous Application (Motion dated 6th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3314/eng@2021-05-12

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