Republi v Deputy County Commissioner Baringo Central & 5 others Ex parte Gideon Kandagor & another; Charles Kigen (Interested Party) [2022] KEELC 852 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Time limitation for judicial review applications for certiorari
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.
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.
Whether allegations of fraud under section 26 of the Limitation of Actions Act can defeat the six-month bar
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.
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.
Correct procedural form for the substantive judicial review application
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.
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.
Alternative constitutional and statutory routes avoiding the limitation bar
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.
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.
Legal principles established
#- 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
#- 1.The application for judicial review orders is struck out with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.