Ileve v Cabinet Secretary ,Ministry of Land and Physical Planning & another; Ngau (Interested Party) (Judicial Review 3 of 2022) [2022] KEELC 2218 (KLR)

Order 53(2) of the Civil Procedure Rules and Section 9(3) of the Law Reform Act prohibit the grant of leave for certiorari beyond six months. The court applied the strict approach in prior authority, holding that the prohibition is statutory and absolute, and cannot be overridden by Order 50 Rule 6, inherent jurisdiction, or Article 159(2)(d) of the Constitution. Parliament has not amended Section 9(3) to allow extension of time.

The court found that facts asserted in counsel's submissions without a supporting affidavit are improperly made and inadmissible, and the letter said to reveal the decision was not on the record. Moreover, explanations for delay are relevant only in an application for extension of time, which the applicant never sought. The authorities the applicant relied on dealt with extension-of-time applications and were therefore distinguishable.

Applying the Mukisa Biscuit test, the court found the limitation issue stemmed directly from statute and subsidiary legislation and could dispose of the suit without ascertaining facts or exercising discretion, and so was properly raised as a preliminary objection.