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ELCStruck Outnot stated in judgment (substantive judicial review application following Eldoret ELC Misc. Application No. 22 of 2020)· [2022] KEELC 852 (KLR)

Republi v Deputy County Commissioner Baringo Central & 5 others Ex parte Gideon Kandagor & another; Charles Kigen (Interested Party) [2022] KEELC 852 (KLR)

Environment and Land Court of Kenya
16 March 2022
1,816 words in judgment
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The bottom line

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A Kenyan court struck out a judicial review challenge filed eight years late, warning that the six-month time limit for certiorari cannot be extended.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (S.M. Kibunja, J) determined a preliminary objection dated 6 December 2021 raised by the Interested Party against the Ex-Parte Applicants' judicial review application, which sought to quash a decision of the District Commissioner Baringo delivered on 6 March 2012. The Interested Party argued that the application was incurably defective, statutory time barred under section 9(2) of the Law Reform Act (Cap 26) and Order 53 Rule 2 of the Civil Procedure Rules, having been filed more than eight years after the impugned decision and without leave to file out of time, and that it was scandalous, frivolous and vexatious. The Applicants conceded the six-month framework but invoked section 26 of the Limitation of Actions Act, alleging fraud by Zacheus Kimeres, who had purportedly acted for the estate of the late Hosea Kimeres without authority, and contended time began running only in April 2020. The court restated that a preliminary objection must raise a pure point of law, and held that neither the Law Reform Act nor Order 53 provides for extension of the six-month period once it lapses. The Applicants had neither sought nor obtained leave to file outside the period, and their fraud argument could not cure the bar. The court also noted, obiter, that the correct form for the substantive application is notice of motion under Order 53 Rule 3, and that the Applicants could probably have avoided limitation and leave requirements by proceeding under Articles 22, 23(3) and 47 of the Constitution, section 7 of the Fair Administrative Action Act and section 13(7) of the Environment and Land Court Act. The preliminary objection was upheld and the judicial review application was struck out with costs.

Key legal issues

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01

Time limitation for judicial review applications for certiorari

Holding

The judicial review application challenging the decision of the Baringo Deputy County Commissioner of 6 March 2012, filed over eight years later, was time-barred under section 9 of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, and the preliminary objection succeeded.

Reasoning

Section 9(2) and (3) of the Law Reform Act and Order 53 Rule 2 prescribe a six-month limit from the date of the impugned decision for leave to apply for certiorari. Superior courts have held that no extension of time is provided once the six months lapse. The Applicants did not seek leave to file out of time and could not rely on section 26 of the Limitation of Actions Act (fraud extension) in judicial review proceedings.

p. 3
02

Whether allegations of fraud under section 26 of the Limitation of Actions Act can defeat the six-month bar

Holding

No. The Applicants' allegation that Zacheus Kimeres acted for the estate without authority, invoking section 26 of the Limitation of Actions Act, could not save a judicial review application filed outside the six-month window, since no leave for out-of-time filing was sought.

Reasoning

The court noted that the margin note to section 26 reads 'Extension of limitation period in case of fraud or mistake', but the Applicants never sought leave to institute the judicial review application outside the six-month period. Their fraud allegations went to the underlying estate dispute, not to excusing the procedural bar in Order 53 and section 9 of the Law Reform Act.

p. 2
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Correct procedural form for the substantive judicial review application

Holding

Although the substantive application was brought by chamber summons rather than notice of motion, the court restated the correct position but did not strike it out on that ground, applying Article 159(2)(b) of the Constitution.

Reasoning

The chamber summons is the correct form for the leave application; after leave is granted, Order 53 Rule 3(1) requires the substantive application to be by notice of motion within twenty-one days. The court noted the defect but, since no party challenged the form and invoking the overriding objective, treated it as a restatement rather than a ground of striking out.

p. 3
04

Alternative constitutional and statutory routes avoiding the limitation bar

Holding

The court observed, obiter, that the Applicants could probably have avoided the limitation and leave requirements had they moved under Articles 22, 23(3) and 47 of the Constitution, section 7 of the Fair Administrative Action Act, 2015, and section 13(7) of the Environment and Land Court Act, 2011.

Reasoning

These constitutional and statutory provisions do not require prior leave for judicial review orders and do not impose the six-month limitation period applicable to applications under Order 53 and the Law Reform Act. The observation was guidance to litigants on election of procedure rather than a determination essential to the outcome.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law that does not require interpretation of facts or production of evidence
  • Section 9 of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules bar applications for leave to apply for certiorari made later than six months after the impugned decision, and the six-month period cannot be extended once lapsed
  • After leave is granted, the substantive judicial review application must be made by notice of motion under Order 53 Rule 3, within twenty-one days
  • Had the Applicants moved under Articles 22, 23(3) and 47 of the Constitution, section 7 of the Fair Administrative Action Act and section 13(7) of the Environment and Land Court Act, they would probably not have faced the six-month limitation bar, as those provisions require no leave and impose no six-month limit

Court orders

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  1. 1.The application for judicial review orders is struck out with costs

Authorities

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Legislation

  • Law Reform Act (Cap 26)sections 8, 9(1), 9(2), 9(3)
  • Civil Procedure Rules, 2010Order 53 Rules 1, 2, 3(1)
  • Limitation of Actions Act (Cap 22)section 26
  • Constitution of Kenya, 2010Articles 22, 23(3), 47, 159(2)(b)
  • Fair Administrative Action Act, 2015section 7
  • Environment and Land Court Act, 2011section 13(7)

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co. Limited v West End Distributors Limited (1969) EA 696
    (1969) EA 696
  • Republic v District Tigania East and West, Deputy County Commissioner & Another Ex parte Stephen Kathuthu Michuki Kiunga (Interested Party) (2021) eKLR
    (2021) eKLR
  • Joram Kaberia v District Land Adjudication and Settlement Officer & 2 Others (2018) eKLR
    (2018) eKLR
  • Rosaline Tubei v Patrick K. Cheruiyot & 3 Others (2014) eKLR
    (2014) eKLR
  • Republic v District Commissioner, Narok North District & 4 Others Ex parte Jane Naserian Enelokula (2016) eKLR
    (2016) eKLR
  • Alba Petroleum Limited v Total Marketing Kenya Limited (2019) eKLR
    (2019) eKLR
  • Republic v Kenya Revenue Authority Ex parte Stanley Mombo Amuti (2018) eKLR
    (2018) eKLR
  • Republic v Speaker of the Senate & Another Ex parte Afrison Export Ltd & Another (2018) eKLR
    (2018) eKLR
  • Republic v Mwangi Nguyai & 3 Others Ex parte Harun Nguyai (1913) eKLR
    (1913) eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and section 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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Cite this brief

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Cite this brief

Caselaw, "Republi v Deputy County Commissioner Baringo Central & 5 others Ex parte Gideon Kandagor & another; Charles Kigen (Interested Party) [2022] KEELC 852 (KLR)", Case Analysis (2022). not stated in judgment (substantive judicial review application following Eldoret ELC Misc. Application No. 22 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/852/eng@2022-03-16

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