Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment as provided· [2021] KEELC 3789 (KLR)

Registered Trustees of Redeemed Gospel Church v National Land Commission & another; Umoja Residents Association Sued through its Officials P.S Kinyanjui (Chairman) & 2 others (Interested Parties) [2021] KEELC 3789 (KLR)

High Court of Kenya
23 March 2021
KBK. BOR
631 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

#

Kenya's High Court ruled that a judicial review case cannot be thrown out for lateness if the judge already knew about the delay when allowing the case to proceed.

What this practically means

#

Executive summary

#
The Applicant obtained leave on 6/11/2019 to commence judicial review proceedings and filed a Notice of Motion dated 20/11/2019 seeking to quash a decision made on 12/02/2016 and communicated by letter dated 14/03/2016, by which the 1st Respondent threatened to revoke the Applicant's title over Nairobi/Block 107/384. The 2nd Respondent filed a preliminary objection dated 24/02/2020 contending that the motion offended Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act, since proceedings instituted on 01/11/2019 lay well outside the six-month period from the impugned decision. The 2nd Respondent relied on Joram Kaberia and Rosaline Tubei, authorities where out-of-time judicial review applications were dismissed. The Applicant opposed, relying on Mramba Said Mramba for the position that a grant of leave can only be challenged by way of review, and argued that upholding the objection would decide the case on a technicality contrary to Article 159(2) of the Constitution and would cost it its property. The court, K. Bor J, held that the objection was fatally flawed because at the time of granting leave the court had expressly noted that the application was brought three years after the impugned decision, and the Applicant additionally sought prohibition, which unlike certiorari is not time bound. The preliminary objection was dismissed with costs in the cause, allowing the substantive motion to proceed to full hearing.

Key legal issues

#
01

Whether the grant of leave to commence judicial review proceedings ousts a preliminary objection based on expiry of the statutory six-month time limit

Holding

The preliminary objection lacked merit because the court, when granting leave, had already noted that the application for leave was brought three years after the impugned decision, and the Applicant also seeks prohibition which is not time bound.

Reasoning

The court considered that the preliminary objection was raised after leave had been granted. At the leave stage the court was alive to the three-year delay yet still exercised its discretion to grant leave. Further, the motion seeks prohibition as well as certiorari, and the time limit under Section 9(3) of the Law Reform Act and Order 53 Rule 2 applies to certiorari but not to prohibition. On both counts the objection could not stand.

p. 2

Legal principles established

#
  • A preliminary objection challenging time limits cannot succeed after the court has already granted leave, having noted the delay; and prohibition, unlike certiorari, is not time bound

Court orders

#
  1. 1.The preliminary objection dated 24/02/2020 is dismissed
  2. 2.Costs shall be in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53 Rule 2
  • Law Reform ActSection 9(3)
  • Constitution of KenyaArticle 159(2)

Cases cited (3)

  • Joram Kaberia v District Land Adjudication & Settlement Officer Igembe South & 2 Others
    [2018] eKLR
  • Rosaline Tubei & 8 Others v Patrick K. Cheruiyot & 3 others
    [2014] eKLR
  • Mramba Said Mramba & 8 others V. Chief Land Registrar, Mombasa & 5 others
    [2017] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and Section 9 of the Law Reform Act (CAP 26)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Registered Trustees of Redeemed Gospel Church v National Land Commission & another; Umoja Residents Association Sued through its Officials P.S Kinyanjui (Chairman) & 2 others (Interested Parties) [2021] KEELC 3789 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3789/eng@2021-03-23

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