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ELCDismissedChamber Summons dated May 18, 2021 (Judicial Review)· [2022] KEELC 3753 (KLR)

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)

Environment and Land Court of Kenya
23 June 2022
2,388 words in judgment
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The bottom line

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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

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Executive summary

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The ex-parte applicants sought leave by Chamber Summons dated May 18, 2021 to institute judicial review of certiorari to quash the proceedings and award of the Magarini Disputes Tribunal of August 8, 2006, adopted as a decree of the Principal Magistrate's Court Malindi on November 23, 2006 in PMCC 17 of 2006, and for the leave to operate as a stay of execution. The dispute before the tribunal was a trespass claim filed by the interested party in April 2006. The applicants appealed to the provincial land disputes tribunal, but on the repeal of the Land Disputes Tribunal Act they claimed the appeal was transferred to the Chief Magistrate's Court without their knowledge and without jurisdiction, they having been acting in person. The respondents, through the Attorney General, opposed, contending the application was filed 16 years after the decision, was inordinate and time-barred under Part VI of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules, and that no illegality, procedural unfairness or irrationality in the tribunal's decision-making process had been demonstrated. The court, per Odeny J, reiterated that at the leave stage it must only consider whether there is an arguable case fit for further investigation. It found the applicants indolent, having taken no steps for over 15 years, held the six-month limitation under Order 53 rule 2 fatal, and held that article 159(2)(d) of the Constitution cannot revive a claim extinguished by statute. The application was dismissed with costs on June 23, 2022.

Key legal issues

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01

Time limit for applications for leave to apply for certiorari

Holding

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

Reasoning

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.

p. 5
02

Purpose of the leave stage in judicial review

Holding

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

Reasoning

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.

p. 4
03

Transfer of defunct Land Disputes Tribunal appeals

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application for leave to institute judicial review proceedings is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Land Disputes Tribunal Actsection 3
  • Environment and Land Court Actsection 30
  • Environment and Land Court Actsection 13(4)
  • Law Reform Act (Cap 26)Part VI
  • Civil Procedure RulesOrder 53 rules 1 and 2
  • Civil Procedure RulesOrder 21 [1]
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (7)

  • Joseph Mikeya Khatoji v Chairman Shinyalu Land Disputes Tribunal
    [2021] eKLR
  • Richard Jumabsambuli v Chairman Bumula Land Disputes Tribunal and Western Province Appeals Committee; Patrick Mutoto and another [interested parties]
    [2019] eKLR
  • Republic v KRA exparte Yaya Towers Limited
    [2008] eKLR
  • Republic v Zacharia Kahuthu & another {sued as trustees and on behalf of and as officials of the Kenya Evangelical Lutheran Church}; Johaness Kutu Ole Meliyio & 2 others {interested parties} ex parte Benjamin Kamala & another
    [2020] eKLR
  • Republic v National Transport and Safety Authority & 10 others exparte James Maina Mugo
    [2015] eKLR
  • APA Insurance Company v Vincent Nthuka
    [2018] eKLR
  • Republic vs County Council of Kwale & Another ex Parte Kondo & 57 Others
    Mombasa HCMCA no 384 of 1996
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

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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, "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.