Republic v District Land Adjudication and Settlement Officer Tigania East and West, Deputy County Commissioner & another Ex parte Stephen Kathuthu; Stephen Michuki Kiunga (Interested Party) [2021] KEELC 4009 (KLR)
The bottom line
#The court dismissed a land dispute challenge because it was filed almost a year late, missing the strict six-month deadline for judicial review in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the judicial review application was time-barred under Section 9 of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules
Yes - the application for leave was filed almost a year after the Minister's decision of 20/08/2018, outside the mandatory six-month period, and the preliminary objection succeeded
The Minister's decision was delivered on 20/08/2018 and the applicant knew of it, having written two days later for certified copies. The chamber summons for leave was filed on 01/08/2019, nearly a year later. Section 9(3) of the Law Reform Act read with Order 53 Rule 2 are couched in mandatory terms limiting certiorari to six months. Receipt of certified copies on 17/05/2019 did not revive the limitation period. The court found the suit rests on quick sand and dismissed it.
Whether an earlier alleged ruling granting leave out of time on 18.9.2019 barred the preliminary objection
The court found no such application or ruling on the file and could not verify it; moreover the alleged ruling date post-dated the filing of the leave application on 1.8.2019
The court noted with concern that neither the application dated 5/03/2019 nor the alleged ruling of 18.9.2019 was on the court file, nor had the applicant annexed them or referred to any other file in which they might exist. The court found it perplexing that the ruling allowing leave out of time was allegedly delivered on 18.9.2019, yet the leave application on record had been filed on 1.8.2019.
Legal principles established
#- The six-month time limit for seeking certiorari under Section 9(3) of the Law Reform Act and Order 53 Rule 2 is mandatory and the date certified copies are supplied does not revive the limitation period
- Leave to file judicial review out of time, if granted, can be challenged at the substantive hearing of the motion
Court orders
#- 1.The preliminary objection dated 28.1.2020 is allowed
- 2.The Judicial Review suit is dismissed with costs to the interested party
- Jurisdiction invoked
- Law Reform Act, Cap 26 (Section 9) and Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v District Land Adjudication and Settlement Officer Tigania East and West, Deputy County Commissioner & another Ex parte Stephen Kathuthu; Stephen Michuki Kiunga (Interested Party) [2021] KEELC 4009 (KLR)", Case Analysis (2021). Judicial Review suit filed 27.8.2019 re Appeal Case No. 172 of 2005 – Thau Mumui Adjudication Section Parcel No. 80. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4009/eng@2021-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.