Republic v Deputy County Commissioner Meru & 2 others; M’KinyilI & another (Exparte); Mungathia (Interested Party) (Judicial Review Application E001 of 2022) [2022] KEELC 2646 (KLR)
The bottom line
#Kenya's High Court-level Environment and Land Court confirmed there is no power to extend the six-month deadline for judicial review, dismissing the applicant's challenge with costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to enlarge time for judicial review beyond six months
The court has no power to extend the six-month period for seeking certiorari; Order 53(3) CPR and Section 9(3) of the Law Reform Act are mandatory.
Relying on prior decisions including Wilson Osoto vs John Ojiambo Ochola and Sabiha Kassamia, the court held that Order 53(3) and Section 9(3) are in mandatory terms. Order 49 CPR and the Limitation of Actions Act cannot be invoked to enlarge time. A party electing judicial review must adhere to that process and cannot rely on Article 159(2)(d) or the oxygen rule to cure non-compliance with clear timelines.
Whether the impugned minister's decision was a nullity, which could be challenged outside the six-month window
The decision could not be said to be a nullity or made without jurisdiction, so the nullity exception did not assist the applicants.
The court noted that a null decision remains a nullity even if challenged after six months, but found on the facts that the minister's decision of November 20, 2020 was not a nullity nor made without jurisdiction, and observed the applicants had in fact participated in the proceedings through Silas Mwenda.
Whether the delay was explained
The delay between November 2020 and the filing of the application was unexplained.
The decision was made on November 20, 2020 but the 1st applicant's hospital admission was on April 27, 2021, and the medical reports belonged to one Jadiel Ntonjira, not the applicant. There was no explanation for the failure to act in time, and non-compliance with clear timelines is not a procedural technicality susceptible to Article 159(2)(d).
Legal principles established
#- There is no power to extend time to file judicial review proceedings beyond the six-month limit under Order 53(3) of the Civil Procedure Rules and Section 9(3) of the Law Reform Act, as those provisions are mandatory, not discretionary.
- Once a party elects to approach the court through judicial review rather than a constitutional petition, adherence to that process is required.
Court orders
#- 1.The application dated February 7, 2022 seeking enlargement of time to institute judicial review orders of certiorari is dismissed.
- 2.Costs to the respondents and the interested party.
- Jurisdiction invoked
- Judicial review under Order 53 Civil Procedure Rules and Section 9(3) of the Law Reform Act; Fair Administrative Action Act 2015; Articles 40, 47, 48 and 159(2)(d) of the Constitution invoked by parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Deputy County Commissioner Meru & 2 others; M’KinyilI & another (Exparte); Mungathia (Interested Party) (Judicial Review Application E001 of 2022) [2022] KEELC 2646 (KLR)", Case Analysis (2022). Judicial Review Case (Exparte) Application dated February 7, 2022, re: Minister's Appeal Case No. 421 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2646/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.