Republic v The Land Disputes Tribunal Magarini (Now Defunct) & another; Mole & another (Exparte); Bashora (Interested Party) (Environment & Land Miscellaneous Case 18 of 2021) [2022] KEELC 3753 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a bid to overturn a 2006 tribunal award because the applicants waited 16 years, far beyond the six-month legal deadline.
What this practically means
#Executive summary
#Key legal issues
#Time limit for applications for leave to apply for certiorari
The application, filed 16 years after the decision, was hopelessly out of time under Order 53 rule 2 and Part VI of the Law Reform Act, and no reasonable explanation for the delay was advanced
Order 53 rule 2 requires that leave for certiorari be sought not later than six months after the decision. The applicants took no steps for over 15 years, claiming ignorance of the transfer of their appeal, but the court held they could not plead ignorance and that their indolence was inexcusable. Article 159 cannot override an express statutory limitation.
Purpose of the leave stage in judicial review
Leave screens out frivolous, vexatious or hopeless applications and is granted only where there is an arguable case fit for further investigation at a full inter partes hearing
Adopting the reasoning of Waki J in the Kondo case, the court reiterated that the leave requirement prevents waste of court time by busybodies with trivial complaints and ensures only arguable cases proceed. The court must not go into the matter in depth but make a quick perusal of the material.
Transfer of defunct Land Disputes Tribunal appeals
Under Practice Direction No. 6 issued by the then Chief Justice, proceedings pending before magistrates courts transferred from defunct District Land Disputes Tribunals were to continue in those same courts; appeals from tribunals and magistrates courts lie in the Environment and Land Court under section 13(4) of the ELC Act
The court outlined the transitional framework following the repeal of the Land Disputes Tribunal Act, noting Practice Directions 6 and 11 issued under Gazette Notice 16268, but found no evidence that the applicants' appeal was actually transferred to the Chief Magistrate's Court, and in any event the applicants took no steps for over 15 years.
Legal principles established
#- Leave for judicial review of certiorari must be sought within six months of the decision, and article 159 of the Constitution cannot revive a claim extinguished by statute
- At the leave stage the court should not delve deeply into the arguments but only determine whether there is an arguable case fit for further investigation
Court orders
#- 1.The application for leave to institute judicial review proceedings is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Order 53 rules 1 and 2 of the Civil Procedure Rules; Part VI of the Law Reform Act (Cap 26); Section 13(4) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v The Land Disputes Tribunal Magarini (Now Defunct) & another; Mole & another (Exparte); Bashora (Interested Party) (Environment & Land Miscellaneous Case 18 of 2021) [2022] KEELC 3753 (KLR)", Case Analysis (2022). Chamber Summons dated May 18, 2021 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3753/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.