Migiro (Suing on behalf of the late Christopher Orenge Makori) v James & 2 others (Environment and Land Case 1 of 2021) [2022] KEELC 699 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a judicial review application filed ten years late, confirming the six-month deadline for Law Reform Act applications cannot be extended.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has discretion to enlarge time for filing leave to apply for judicial review under Order 53 and section 9 of the Law Reform Act
No. Where a party chooses the Law Reform Act/Order 53 route, leave must be filed within six months and the court has no discretion to extend that statutory period.
The court surveyed divergent authorities. It accepted that judicial review is now a constitutional principle and that applicants may proceed under Article 23(3) of the Constitution or the Fair Administrative Action Act without leave. However, the Applicant chose to proceed under the Law Reform Act and Order 53, and having done so is bound by the six-month limitation. The Court of Appeal in Wilson Osolo held that the Civil Procedure Rules cannot be used to extend time limited by statute.
Whether the delay of over ten years was excusable
The delay was grossly inordinate and unexplained, and the application was therefore doomed even had a discretion existed.
The Tribunal decision was made in 2007/2010 and adopted by the court in 2010, yet the leave application was only filed on 8 February 2021. The court assumed arguendo that it had discretion to extend time but found no explanation at all had been offered for the decade-long delay, so the application could not survive on that footing either.
Whether the Preliminary Objection was merited
Yes; the application was time-barred, contra-statute and a nullity, and was struck out with costs.
Relying on the Mukisa Biscuit definition of a preliminary objection and the contra-statute doctrine, the court found that the application offended sections 9(2) and (3) of the Law Reform Act and Order 53, could not be saved by Article 159, and was incompetent. The preliminary objection was accordingly upheld and the application struck out with costs to the 1st Respondent.
Legal principles established
#- Where an applicant opts to file judicial review under the Law Reform Act and Order 53 of the Civil Procedure Rules, leave must be sought within six months of the decision and the court has no discretion to enlarge time under that route
- Extension of time limited by statute cannot be obtained through the Civil Procedure Rules; Order 53 Rule 2 derives verbatim from section 9(3) of the Law Reform Act
- A suit filed contra-statute is incompetent and cannot be saved by Article 159(2)(d) of the Constitution
Court orders
#- 1.The Notice of Preliminary Objection dated 3rd May 2021 is upheld
- 2.The application dated 8th February 2021 is struck out with costs to the 1st Respondent
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules; Order 50 Rule 6
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Migiro (Suing on behalf of the late Christopher Orenge Makori) v James & 2 others (Environment and Land Case 1 of 2021) [2022] KEELC 699 (KLR)", Case Analysis (2022). Misc. Application dated 8th February 2021 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/699/eng@2022-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.