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ELCStruck OutMisc. Application dated 8th February 2021 (Judicial Review)· [2022] KEELC 699 (KLR)

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)

Environment and Land Court
23 March 2022
2,891 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a Chamber Summons dated 8 February 2021, the Applicant, administrator of the estate of Orenge Makori (deceased), sought enlargement of time to file judicial review proceedings to quash the decision of the Kenyenya Land Disputes Tribunal in Tribunal Case No. 99 of 2007, which had declared that land parcel MAJOGE/MAGENCHE/670 belonged to James Nyangoto and his family, together with leave to apply for certiorari and prohibition and an order that leave operate as a stay. The 1st Respondent filed a replying affidavit and a preliminary objection contending that the application offended sections 9(2) and (3) of the Law Reform Act, being filed more than ten years after the Tribunal's decision was adopted by the court in 2010, far beyond the six-month limitation under Order 53 Rule 2. The court surveyed authorities, including Republic v Kenya Revenue Authority Ex-parte Stanley Mombo Amuti and National Social Security Fund v Sokomanja, accepting that judicial review is now a constitutional remedy and that applicants may proceed without leave under the Constitution or the Fair Administrative Action Act. However, having chosen the Law Reform Act/Order 53 route, the Applicant was bound by the six-month limit, and following Wilson Osolo the court held it had no discretion to extend statutory time. Even assuming discretion existed, the ten-year delay was grossly inordinate and unexplained. The preliminary objection was upheld and the application struck out with costs to the 1st Respondent.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 4
02

Whether the delay of over ten years was excusable

Holding

The delay was grossly inordinate and unexplained, and the application was therefore doomed even had a discretion existed.

Reasoning

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.

p. 4
03

Whether the Preliminary Objection was merited

Holding

Yes; the application was time-barred, contra-statute and a nullity, and was struck out with costs.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 3rd May 2021 is upheld
  2. 2.The application dated 8th February 2021 is struck out with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 Rule 6; Order 53 Rules 1, 2 and 3; Order 49
  • Law Reform ActSections 8 and 9(2), 9(3) (Cap 26)
  • Constitution of Kenya, 2010Article 22, 23(3), 23(3)(f), 24, 159(2)(d)
  • Fair Administrative Action ActSections 7 and 8
  • Environment and Land Court ActSection 13(7)
  • Limitation of Actions ActCap 22
  • Civil Procedure ActSection 19

Cases cited (7)

  • Cyril J. Haroo & Another v Uchumi Services Limited & 3 Others
    (2014) eKLR
  • Siasa Pasua & 2 Others v Mbaruk Khamis Mohammed and Another
    (2012) eKLR
  • Mukisa Biscuit Manufacturing Co. Limited v West End Distributors Ltd
    (1969) E.A 696
  • Republic v Kenya Revenue Authority Ex-parte Stanley Mombo Amuti
    (2018) eKLR
  • Republic v Speaker of the Senate & Another ex parte Afrison Export Import Limited & Another
    (2014) eKLR
  • National Social Security Limited v Sokomanja Limited
    (2021) eKLR
  • Wilson Osolo v John Ojiambo Ochola & Another
    1995 eKLR
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

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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, "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.