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ELCDismissedSiaya Miscellaneous Civil Application (motion dated 17/12/2021)

Aol v Owino & 3 others (Environment and Land Miscellaneous Application E008 of 2021) [2022] KEELC 2766 (KLR)

Environment and Land Court
14 July 2022
AKA. Y. Koross
1,333 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed a widow's attempt to quash a 2004 land tribunal decision filed 17 years late, confirming the six-month judicial review deadline cannot be extended.

What this practically means

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Executive summary

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Margaret Aol, widow of the first registered proprietor of parcel Uholo/Ugunja/323, moved the Environment and Land Court at Siaya by motion dated 17/12/2021 seeking extension of the limitation period to institute judicial review proceedings, and leave to apply for certiorari to quash the proceedings and decision of the Land Dispute Tribunal which had been adopted as a judgment in Siaya Miscellaneous Civil Application Number 56 of 2000. She contended the respondents, paternal relatives of her deceased husband, appropriated the suit property and obtained eviction orders against her without her knowledge, with eviction orders dating from 08/06/2004 and re-issued in 2011, 2012 and 2021. The motion was unopposed but the court determined it on its merits, framing a single issue: whether the motion was merited. The court held that limitation of time is a substantive matter which Article 159(2)(d) cannot cure, and that Order 50 Rule 6 cannot oust the mandatory six-month period under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. Time ran from 08/06/2004 when the tribunal decision was adopted; the motion, filed 17 years later, was hopelessly out of time. Following Supreme Court and Court of Appeal authority, the court declined to extend time, dismissed the application, and directed that the file be marked as closed. Though costs follow the event, no costs were awarded because the respondents did not participate.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the motion is merited

Key legal issues

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01

Whether the court could extend the limitation period for instituting judicial review proceedings 17 years after adoption of the tribunal award

Holding

The motion was not merited; leave for certiorari cannot be granted outside the six-month period fixed by Section 9(3) of the Law Reform Act and Order 53 Rule 2, and procedural leniency provisions cannot displace that substantive limitation.

Reasoning

The court held that Article 159(2)(d) and the overriding objective provisions, though cited by the applicant, do not cure substantive limitation periods. Order 50 Rule 6 cannot oust the mandatory six-month rule in Section 9(3) of the Law Reform Act. Time ran from 8/06/2004 when the tribunal decision was adopted as an order of court; the application filed on 17/12/2021 was 17 years out of time and the court declined to reopen the closed window.

p. 2

Legal principles established

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  • Limitation of time for certiorari is a substantive issue and subsidiary legislation cannot oust the mandatory six-month period in Section 9(3) of the Law Reform Act.
  • A litigant must be vigilant to pursue claims within strict statutory timelines.

Court orders

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  1. 1.The application dated 17/12/2021 is hereby dismissed with no orders as to costs.
  2. 2.The file is marked as closed.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution of Kenya; Sections 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act; Section 13(1) and (7) of the Environment and Land Court Act; Order 50 and 51 of the Civil Procedure Rules

Relief refused

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Extension of limitation period to institute judicial review proceedings out of time

The application was filed 17 years after the tribunal decision was adopted as a judgment of the court, far outside the six-month limitation period under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules.

p. 2

Leave to apply for an order of certiorari to quash the Land Dispute Tribunal proceedings and decision

The window period for instituting judicial review proceedings had long closed.

p. 3

Costs of the application

Though costs follow the event, the respondents did not participate and costs were not awarded to them.

p. 3

Costs

The application is dismissed with no orders as to costs; each party to bear own costs implicitly.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application dated 17/12/2021 is hereby dismissed with no orders as to costs.
p. 3final orders
The file is marked as closed.
p. 3final orders
Though Order 50 Rule 6 of the Civil Procedure Rules gives leeway for the courts to enlarge time, subsidiary legislation cannot oust the mandatory provisions of law; in this case Section 9 (3) of the Law Reform Act.
p. 3limitation and certiorari
this provision is not a panacea of all manner of shortcomings and limitation of time is a substantive issue that does not fall within the ambit of procedural technicalities
p. 2Article 159 and limitation

Issues in the judgment

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minor

The names of the respondents are not stated in the judgment excerpt; parties are referred to only as 'the respondents'.

minor

The case number of the application before the ELC is not stated; only the related Siaya Misc. Civil Application Number 56 of 2000 is referenced.

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, "Aol v Owino & 3 others (Environment and Land Miscellaneous Application E008 of 2021) [2022] KEELC 2766 (KLR)", Case Analysis (2022). Siaya Miscellaneous Civil Application (motion dated 17/12/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2766/eng@2022-07-14

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