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ELCDismissedJudicial Review No 20 of 2019· [2022] KEELC 3677 (KLR)

Mwenda v District Land Adjudication and Settlement Officer Tigania East Sub-County; Ciciuna & another (Interested Parties) (Judicial Review 20 of 2019) [2022] KEELC 3677 (KLR)

Environment and Land Court
4 May 2022
2,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed that strict statutory deadlines for judicial review cannot be extended, dismissing a landowner's late challenge to a land adjudication decision.

What this practically means

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Executive summary

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The exparte applicant, Lilian Gaceri Mwenda, moved the court by an application dated September 16, 2021 seeking leave to file a review out of time, setting aside of the ruling of May 20, 2020, extension of time to file judicial review proceedings, and reinstatement of her application dated October 30, 2019 for hearing on merits. The underlying dispute concerned objections Nos 1362 & 3438 over Parcel No 6221 Karama Adjudication Section decided on November 22, 2016. Her earlier leave application had been dismissed because it was filed over three years after the decision, without extension of time. She attributed the delay to her former advocates and the Covid-19 pandemic. The respondents and interested party opposed, arguing the application conflated distinct reliefs and that judicial review timelines under order 53 rule 2 CPR and sections 8 and 9 of the Law Reform Act are not extendable. The court framed four issues and held that statutory judicial review timelines cannot be extended under the Civil Procedure Rules or Article 159(2), following Evans Kidero, Hotel Kunste, Ole Keiuwa and Wilson Osolo. It found the delay of over three years, between collecting the proceedings in December 2016 and filing in October 2019, wholly unexplained, especially as the consent to sue required filing within 60 days. The court further found the 2019 application had been heard on merits and no new material justified a rehearing, with prejudice pleaded and public interest in completing adjudication. The application was dismissed with costs.

Key legal issues

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01

Whether the court can extend statutory timelines for judicial review leave

Holding

No; the statutory timelines under order 53 rule 2 CPR and sections 8 & 9 of the Law Reform Act are strict and cannot be extended under the Civil Procedure Rules or Article 159(2)

Reasoning

Order 53 rule 2 was lifted word for word from section 9(3) of the Law Reform Act. The Court of Appeal in Evans Kidero, Hotel Kunste and Ole Keiuwa held that judicial review timelines are not extendable since order 50 rule 6 CPR and article 159(2) do not apply to statutory time limits.

p. 4
02

Whether the inordinate delay was excused

Holding

No; the delay of over 3 years between obtaining the proceedings (December 20, 2016) and filing for leave (October 30, 2019) was unexplained, and the consent to sue required filing within 60 days

Reasoning

The applicant never explained the 3-year gap even though she collected the proceedings promptly on payment. The consent to sue was specific that the claim had to be filed within 60 days. Courts must not provide comfort to parties who show scant respect for rules and timelines.

p. 4
03

Whether the application of October 30, 2019 was heard on merits

Holding

Yes; it was heard and determined on merits, so rehearing would serve no purpose as nothing had changed

Reasoning

The court found the earlier application was heard on merits and that no new material or facts were offered. Reinstatement or setting aside would be futile, particularly as respondents and the interested party pleaded prejudice and the adjudication process had to cater for public interest.

p. 4

Legal principles established

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  • Statutory time limits for seeking leave to apply for certiorari under order 53 rule 2 CPR and sections 8 & 9 of the Law Reform Act cannot be extended under the Civil Procedure Rules
  • The burden lies on the party seeking extension of time to lay basis and give good reasons for the delay

Court orders

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  1. 1.The application dated September 16, 2021 was dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rule 2
  • Civil Procedure RulesOrder 50 rule 6
  • Civil Procedure RulesOrder 51 rule 16
  • Law Reform ActSections 8 and 9
  • Fair Administrative Action ActSection 9(1)
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (14)

  • Nicholas Kiptoo Arap Koriri Salat v IEBC & 7 others
    [2014] eKLR
  • Vishva Stone Suppliers Co Ltd v RSR Stone
    [2020] eKLR
  • Salim Mohammed v Robert Fondo Kirimo
    [2021] eKLR
  • Republic v Speaker of Nairobi City County Assembly and another Exparte Evans Kidero
    [2017] eKLR
  • Commissioner of Land v Hotel Kunste
    Court of Appeal 234/1995
  • MM Ole Keiuwa & JN Odera Juma v Yash Pal Ghai
    [2003] eKLR
  • Nicholas Kiptoo Salat v IEBC & 6 others
    [2013] eKLR
  • Wilson Osolo v John Ojiambo Ochola & the AG
    CA No 6 of Nairobi of 1995
  • Republic v Public Procurement Administrative Review Board & 3 others Ex Parte Syner-Chemie Limited
    [2018] eKLR
  • Rawal v The Mombasa Hardware Ltd
    (1968) EA 392
  • Bremer Vulcan Schiff-bar and Maschinen Fabrick v South Indian Shipping Corporation Ltd
    [1981] AC 909
  • Equity Bank v West Link MBO Limited
    Civil application No 78 of 2011
  • Ivita v Kyumbu
    [1984] KLR 441
  • Aviation & Allied Workers Union v KQ Ltd & 3 others
    [2015] eKLR
Jurisdiction invoked
Inherent jurisdiction of the court; Article 159(2) of the Constitution (invoked in submissions on extension of time)

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, "Mwenda v District Land Adjudication and Settlement Officer Tigania East Sub-County; Ciciuna & another (Interested Parties) (Judicial Review 20 of 2019) [2022] KEELC 3677 (KLR)", Case Analysis (2022). Judicial Review No 20 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3677/eng@2022-05-04

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