Nzuki v Muthengi & another (Miscellaneous Civil Application E001 of 2021 & Miscellaneous Application E003 & E004 of 2021 (Consolidated)) [2022] KEELC 2731 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you cannot revive a late judicial review case: the six-month deadline is absolute, and the only remedy is appealing to the Court of Appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the orders issued by the court on September 30, 2021 dismissing the application dated September 21, 2021 for having been filed out of time should be set aside
- 2.Whether leave should be granted to the Applicant to file his application dated September 21, 2021 out of time and that the said application be reinstated and fixed for hearing
Key legal issues
#Whether the dismissal of the leave application of September 21, 2021 should be set aside
No. The dismissal was correct in law because the leave application was filed outside the mandatory six-month period, and the court cannot sit on appeal over its own reasoned decision.
The court had dismissed the leave application on merit, not for non-attendance, applying the arguable-case test for leave. No legal provision authorises a court to set aside its own order dismissing an application for leave; the remedy was appeal to the Court of Appeal. The limitation under Section 9(3) of the Law Reform Act goes to jurisdiction and cannot be cured under Article 159(2)(d) or the Civil Procedure Act's overriding objective.
Whether leave could be granted to file the application for leave out of time
No. Section 9(3) of the Law Reform Act is mandatory and absolute; rules-of-court extension mechanisms do not apply to statutory time limits, and cases permitting extension concerned the 21-day notice-of-motion rule, not the six-month limitation.
Order 50 rule 6 empowers extension only of time fixed under the Rules, not statutory time. The Court of Appeal in Osolo and Ako held the statutory prohibition on granting certiorari leave beyond six months is absolute. The authorities relied on by the Applicant were distinguishable because they concerned extension of the 21-day period for filing the substantive motion after timely leave. Article 159(2)(d) cannot oust mandatory procedural imperatives.
Whether Article 159(2)(d) and Sections 1A, 1B and 3A of the Civil Procedure Act could excuse the time-bar
No. These provisions cannot be used to override the express statutory limitation in Section 9(3) of the Law Reform Act.
Relying on the Supreme Court's pronouncement in Raila Odinga & 5 Others v IEBC, the court held Article 159(2)(d) requires substance not to be defeated by procedure, but was never intended to exempt litigants from compliance with procedural imperatives. The Applicant, having elected to move under the Law Reform Act and Order 53, was bound by the six-month requirement under those provisions.
Legal principles established
#- The six-month limitation for applications for leave to apply for certiorari under Section 9(3) of the Law Reform Act and Order 53(2) of the Civil Procedure Rules is mandatory, not a curable procedural technicality, and goes to the jurisdiction of the court.
- Time limited by statute (the Law Reform Act) cannot be enlarged under the Civil Procedure Rules or the court's inherent powers.
- Article 159(2)(d) does not oust the obligation of litigants to comply with procedural imperatives.
- A first-instance court cannot sit on appeal on its own decision; a party aggrieved by an order refusing leave must appeal to the Court of Appeal.
Court orders
#- 1.The Notice of Motion dated November 18, 2021 filed in Misc Application E004 of 2021 is dismissed with costs to the Respondents
- 2.The application dated October 29, 2021 filed in Misc Application E003 of 2021 is dismissed with no order as to costs
- 3.The files in Misc Application E001 of 2021, E003 of 2021 and E004 of 2021 all between Muthui Mulonzya v Daniel Kilonzo Muthengi and the Hon. Attorney General be closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159(d) and Article 40 of the Constitution of Kenya 2010; Order 50, 51 and 53 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
- Consolidated with
- Misc Application E001 of 2021 (lead file), Misc Application E003 of 2021
Relief refused
#Setting aside the order of September 30, 2021 dismissing the application dated September 21, 2021
The order was well grounded on the correct position of the law; the six-month limitation under Section 9(3) of the Law Reform Act is mandatory and goes to jurisdiction, and a court cannot sit on appeal on its own decision
Extension of time under Order 50 Rule 6 and inherent powers of the Civil Procedure Act
Time limited by statute (the Law Reform Act) cannot be extended by rules of court; Section 9(3) is mandatory and absolute
Reinstatement of the application dated September 21, 2021 and fixing it for hearing
It follows automatically from the dismissal of the setting-aside and extension applications
Costs
The Notice of Motion dated November 18, 2021 dismissed with costs to the Respondents; the application dated October 29, 2021 in Misc Application E003 of 2021 dismissed with no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore re-affirm the decision of the court made on 30th September 2021 and find that failure by the applicant to file the application for leave within the time given under Section 9 (3) Law Reform Act and Order 53 (2) Civil Procedure Rules rendered the application incompetent.
The issue of limitation of time is not a procedural technicality because it goes to the root of the jurisdiction of the court.
In the circumstances of this case I hold that it is the court of Appeal that has the power to either uphold the court’s decision refusing to grant leave or set it aside.
I therefore find that the application dated November 18, 2021 filed in Misc Application E004 of 2021 lacks merit and the same is hereby dismissed with costs to the Respondents.
I further direct that the files in Misc Application E001 of 2021, Misc Application E003 of 2021 and Misc Application E004 of 2021 all between Muthui Mulonzya vs Daniel Kilonzo Muthengi and the Hon. Attorney General be closed.
Issues in the judgment
#The judgment inconsistently refers to 'Article 159 (d)' and 'Article 159 (2) (d)' of the Constitution, and cites both 'Section 3A' and 'Section 3B' of the Civil Procedure Act (the application was 'under... Section 1A, 1B and 3A' but the analysis quotes 'Section 3B').
The judgment quotes 'Section 9 (2)' of the Law Reform Act where the six-month certiorari limitation in fact appears in the quoted text of Section 9(3).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzuki v Muthengi & another (Miscellaneous Civil Application E001 of 2021 & Miscellaneous Application E003 & E004 of 2021 (Consolidated)) [2022] KEELC 2731 (KLR)", Case Analysis (2022). Misc Application E004 of 2021 (lead file E001 of 2021; consolidated with E003 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2731/eng@2022-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.