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ELCStruck OutELC JR (Eldoret) - Judicial Review application dated 8th April, 2021· [2022] KEELC 327 (KLR)

David Tanui & 3 others v Deputy County Commissioner, (Marakwet East) & 4 others; Peter Cheruiyot (Interested Party) [2022] KEELC 327 (KLR)

Environment and Land Court
27 April 2022
SKS. M. Kibunja
2,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land judicial review filed over two years late, confirming the strict six-month deadline for quashing decisions cannot be extended.

What this practically means

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Executive summary

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The Interested Party filed a notice of preliminary objection dated 24th September 2021 arguing that the court lacked jurisdiction to hear the ex parte Applicants' judicial review application because it was statute-barred under sections 8 and 9 of the Law Reform Act, Cap 26. The Applicants had sought leave on 8th April 2021 to apply for certiorari to quash a Minister's decision of 28th November 2018 concerning Plots Numbers 951, 955, 1839 and 374 in Maina Adjudication Section, plus mandamus directing entry of their names on the adjudication register, contending the Interested Party's appeal to the Minister was lodged outside the 60 days allowed by section 29(1) of the Land Adjudication Act. The Interested Party, through Peter Cheruiyot Kisang, showed the appeal was lodged on 20th December 2016 and decided on 28th November 2018. Applying the Mukisa Biscuit test, the court held the limitation ground was a pure point of law raising a jurisdictional question. Under section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, leave for certiorari must be sought within six months of the impugned decision; the application, filed over two years and four months late, was therefore time-barred, and no discretion could cure the delay. Mandamus, being pegged on certiorari, fell with it. The court noted in passing that a petition under Articles 22, 23(3)(f) and 47 of the Constitution, section 7 of the Fair Administrative Action Act and section 13(7) of the ELC Act would likely have avoided the limitation period. The preliminary objection was upheld and the judicial review application struck out with costs.

Key legal issues

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01

Whether the preliminary objection on limitation raised a pure point of law

Holding

Yes - the objection invoking sections 8 and 9 of the Law Reform Act was a pure point of law raising a jurisdictional question determinable without evidence

Reasoning

Applying Mukisa Biscuit, the court found the limitation ground assumed the pleaded facts (dates of decision and filing) and raised a jurisdictional question. If upheld, it could dispose of the entire leave application without calling evidence or exercising discretion, satisfying the test for a valid preliminary objection.

p. 3
02

Whether the application for leave was statute-barred

Holding

Yes - the decision sought to be quashed was delivered on 28th November 2018 but leave was sought on 8th April 2021, well beyond the six-month period under section 9(3) of the Law Reform Act and Order 53 Rule 2

Reasoning

The court compared the statutory six-month limitation with the actual delay of over two years and four months. Relying on AKK v Childrens' Court and Joseph R. Kithinji v Rukuriri Tea Factory, it held the delay could not be cured by discretion, since limitation provisions for judicial review are mandatory and leave cannot be granted out of time.

p. 4
03

Whether mandamus could survive the failure of certiorari

Holding

No - mandamus was pegged on certiorari succeeding and was unsustainable once leave for certiorari failed

Reasoning

The court reasoned that the relief of mandamus depended on the quashing order being granted. Since the leave application for certiorari was struck out as time-barred, there was no foundation for mandamus, rendering it without basis and unsustainable.

p. 4
04

Obiter: alternative constitutional and fair administrative action route

Holding

The Applicants could probably have avoided the six-month limitation by moving the court under Articles 22, 23(3)(f) and 47 of the Constitution, section 7 of the Fair Administrative Action Act and section 13(7) of the ELC Act

Reasoning

Relying on its own earlier unreported decision, the court observed that those provisions require no leave and carry no six-month limitation. This was an observation, not a determination, since the Applicants had invoked Order 53 judicial review procedure only.

p. 4

Legal principles established

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  • Leave to apply for an order of certiorari must be sought not later than six months after the date of the decision sought to be quashed, and a late application is statute-barred
  • A plea of limitation is a pure point of law properly raised by preliminary objection
  • Judicial review remedies are exceptional and unavailable to indolent parties who sleep on their rights

Court orders

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  1. 1.The Interested Party's preliminary objection dated 24th September, 2021 is upheld
  2. 2.The Judicial Review application dated 8th April, 2021 is struck out with costs

Authorities

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Legislation

  • Law Reform Act, Cap 26Sections 8 and 9 (including section 9(3))
  • Civil Procedure RulesOrder 53 Rule 2
  • Land Adjudication Act, Chapter 284Section 29(1)
  • Constitution of Kenya, 2010Articles 22, 23(3)(f) and 47
  • Fair Administrative Action Act, 2015Section 7
  • Environment and Land Court Act, 2011Section 13(7)

Cases cited (7)

  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • AKK v Childrens' Court, Milimani; SMM (Interested Party)
    [2019] eKLR
  • Joseph R. Kithinji & 3 Others v Rukuriri Tea Factory Company Limited
    [2018] eKLR
  • Republic v The Minister for Lands & Settlement & Others
    Mombasa HCMCA No. 1091 of 2006
  • Teachers Service Commission v Ex-parte Patrick M Njuguna
    [2013] eKLR
  • Republic v The Cabinet Secretary, Lands, Housing and Urban Development & Others, Exparte Gideon Kandagor & Another
    Eldoret ELC JR No. 10 of 2020 [unreported]
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act (Cap 26)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Tanui & 3 others v Deputy County Commissioner, (Marakwet East) & 4 others; Peter Cheruiyot (Interested Party) [2022] KEELC 327 (KLR)", Case Analysis (2022). ELC JR (Eldoret) - Judicial Review application dated 8th April, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/327/eng@2022-04-27

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