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ELCOtherNot stated in the judgment text provided· [2023] KEELC 161 (KLR)

Republic v Minister for Land & Settlement & 2 others; Luka & another (Exparte); Luka & another (Interested Parties) (Environment and Land Judicial Review Case 1 of 2021) [2023] KEELC 161 (KLR)

High Court of Kenya
24 January 2023
3,127 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's High Court dismissed a judicial review case filed five days late, confirming the 21-day filing deadline is strict and cannot be excused.

What this practically means

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Executive summary

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This was a notice of preliminary objection dated October 17, 2022 filed by the respondents against the ex-parte applicants' substantive notice of motion dated March 2, 2021, in a judicial review matter before the High Court. The respondents raised two issues: whether the substantive motion was filed within the mandatory 21-day period under Order 53 Rule 3(1) of the Civil Procedure Rules, and whether failure to join the Attorney General, contrary to Article 156 of the Constitution, rendered the suit fatally defective. Leave to file the substantive motion had been granted by Kullow J on February 19, 2021, with an express direction that it be filed and served within 21 days, that is, by March 12, 2021. The applicants instead filed on March 17, 2021 and effected service only on June 16, 2022. Their explanation that the judiciary e-filing system was down was rejected as unsupported by evidence. Relying on the Court of Appeal decision in United Housing Estate Limited v Nyals (Kenya) Ltd, the court held that the benefit of a conditional order lapses where the conditions are not scrupulously honoured, and that Article 159 cannot cure deliberate non-compliance. On the second issue, the court held, following Republic Exparte Minister for Finance v Charles Lutta Kasamani, that non-joinder of the Attorney General is an irregularity curable by amendment and not fatal. The preliminary objection was therefore upheld on ground 1 only; the substantive notice of motion was dismissed with no order as to costs, each party bearing its own costs.

Key legal issues

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01

Whether the substantive notice of motion was filed within the mandatory 21 days prescribed by Order 53 Rule 3(1)

Holding

Leave was granted on February 19, 2021 requiring filing within 21 days (by March 12, 2021); the motion was filed on March 17, 2021 and served on June 16, 2022, out of time, without enlargement of time; the objection succeeds

Reasoning

The court found the applicants were granted leave on February 19, 2021 to file within 21 days. They filed on March 17, 2021 and served over a year later. The explanation that the e-filing system was down was unsupported by annexed evidence. The applicants were casual, disobeyed court directions, and could not invoke Article 159 to cure non-compliance with a mandatory timeline. Consequently the objection on this ground succeeded and the motion was dismissed.

p. 5
02

Whether failure to join the Attorney General renders the suit fatally defective

Holding

Non-joinder of the Attorney General is a defect in form, curable by amendment, and not fatal; the preliminary objection fails on this ground

Reasoning

While the Attorney General under Article 156 represents the national government in court and is ordinarily joined for notification purposes, the court relied on Court of Appeal authority that misjoinder or non-joinder is an irregularity that does not go to the substance of proceedings and is curable by amendment. The court expressly declined to uphold the objection on this ground, upholding only ground 1.

p. 6

Legal principles established

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  • The 21-day timeline for filing the substantive judicial review motion under Order 53 Rule 3(1) is mandatory and non-compliance cannot be cured by Article 159 of the Constitution
  • A party who obtains an order subject to conditions loses the benefit of that order if the conditions are not honoured
  • Non-joinder of the Attorney General is a curable irregularity, not a fatal defect

Court orders

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  1. 1.The notice of preliminary objection dated October 17, 2022 is upheld in terms of ground 1
  2. 2.The substantive notice of motion dated March 2, 2021 and filed on March 17, 2021 is dismissed
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rule 3(1)
  • Civil Procedure Rules, 2010Order 1 Rule 3; Order 1 Rule 10(2)
  • Law Reform ActSections 8 and 9
  • Constitution of Kenya, 2010Article 156; Article 156(2)(b); Article 156(4); Article 159(2)(d); Article 48
  • Office of the Attorney General ActSection 5(1)(i)
  • Government Proceedings ActNot specified

Cases cited (14)

  • Republic versus Medical Laboratory Technologists Board Ex Parte Anastacia Ngithi Wahu & 177 Others
    [2017] eKLR
  • Republic versus Attorney General & 2 Others; Hassan (Exparte); Mvurya & 20 Others (Interested Party)
    (Judicial Review Miscellaneous Application 14 of 2020) [2021] KEHC 239 (KLR)
  • Republic v Linda Wanjiku & 2 Others Ex Parte E.N (Applying as father and next of friend of sk (Minor)
    [2017] eKLR
  • United Housing Estate Limited versus Nyals (Kenya) Ltd
    Nairobi Civil Application No. 84 of 1996
  • Republic v Public Procurement Administrative Review Board & Another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & Another (Interested Parties); Exparte Magal Security Systems Ltd/Firefox Kenya Limited (JV)
    [2019] eKLR
  • Maina Gitonga versus Catherine Nyawira Maina & Another
    [2015] eKLR
  • Bremer Vulcan Schiff bar and Maschinen Fabrick versus South Indian Shipping Corporations Limited
    [1981] AC 909
  • Equity Bank Limited versus West Link Mbo Ltd
    Civil Application (Appeal) No. 78 of 2011
  • Republic versus County Assembly of Nakuru & 2 Others Exparte Samuel Waithuku Njane & 21 Others
    Nakuru JR App 19 of 2016
  • James Gacheru Kariuki & 22 Others versus Kiambu County Assembly & 3 Others
    [2017] eKLR
  • Kiscoba Association (acting through John Maina- Chairman James Ndiba-Organisation Secretary versus Nairobi City County Government
    [2018] eKLR
  • Republic Exparte the Minister for Finance & The Commissioner of Insurance as Licensing and Regulating Officers versus Charles Lutta Kasamani T/A Kasamani & Co. Advocate & Another
    Civil Appeal (Application) No. Nai. 281 of 2005
  • Eliud Buku Thuku versus Paul Kariuki Mwangi & 2 Others
    [2009] eKLR
  • Civicon Limited versus Kivuwatt Limited & 2 Others
    [2015] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform 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 Minister for Land & Settlement & 2 others; Luka & another (Exparte); Luka & another (Interested Parties) (Environment and Land Judicial Review Case 1 of 2021) [2023] KEELC 161 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/161/eng@2023-01-24

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