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ELCStruck OutNot stated in the judgment (ex parte chamber summons)· [2023] KEELC 859 (KLR)

Republic v Chairman Uasin Gishu Land Disputes Tribunal & another; Baroswa (Exparte); Kitilit (Interested Party) (Judicial Review Miscellaneous Application E20 of 2022) [2023] KEELC 859 (KLR)

Environment and Land Court
14 February 2023
2,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a judicial review challenge to a 2011 Tribunal land award because it was filed 11 years late—well past the six-month deadline.

What this practically means

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Executive summary

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The ex parte applicant, Kimeli Barsoswa, moved the court by chamber summons under sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules seeking leave to apply for judicial review: certiorari to quash the decision of the defunct Land Disputes Tribunal (Award No 58 of 2011, given December 8, 2011) and the subsequent decree and proceedings; prohibition against the interested party from trespassing, transferring or encroaching on land parcel Soy/Kipsomba BLK 2; mandamus against the 2nd respondent restraining her from signing and forwarding land control board application forms; and that leave operate as a stay. The 1st and 2nd respondents filed grounds of opposition and the interested party a preliminary objection, arguing the application was time-barred beyond the six-month period, filed without extension of leave, premature for non-exhaustion of appeal mechanisms, and that prohibition could not issue against a private party. The court framed two issues: timeliness, and whether prohibition may issue against an individual. It held that the application, filed 11 years after the award and 5 years after its adoption, breached section 9 of the Law Reform Act and order 53(2); applying Wilson Osolo, no extension of statutorily limited time is available. Distinguishing NSSF v Sokomanja, the court noted the applicant could have anchored the claim under the Constitution or Fair Administrative Action Act without leave, but having elected the Law Reform Act route was bound by its limitation. On the second issue, while judicial review generally lies against public bodies, review of an award directed at an individual necessarily entails orders against that individual. The preliminary objection was upheld and the application struck out with costs to the respondents and interested party.

Key legal issues

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01

Whether the judicial review application was filed out of time

Holding

Yes; the application was made 11 years after the Tribunal's award and 5 years after its adoption, far beyond the six-month period, and no extension is available under the Law Reform Act

Reasoning

Section 9 of the Law Reform Act and order 53(2) of the Civil Procedure Rules prescribe six months for leave to seek certiorari. The court applied Wilson Osolo, holding that statutory time limits cannot be extended via procedural rules. Although judicial review relief now also exists under the Constitution, the FAAA and the ELC Act, the applicant had chosen the Law Reform Act route and was bound by its limitation, rendering the application defective.

p. 5
02

Whether judicial review orders can be directed at a private individual (the interested party)

Holding

Prohibition against an individual is generally impermissible, but where the Tribunal's award was directed at an individual, reviewing that decision necessarily entails orders against that individual

Reasoning

The court agreed that judicial review remedies lie against public bodies exercising public or quasi-judicial functions, endorsing the respondents' objection in principle. However, it recognised that a review of a Tribunal award directed at a private individual would necessarily involve orders binding that individual, so this ground alone did not dispose of the application; the time-bar did.

p. 5

Legal principles established

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  • Time limited by statute under section 9 of the Law Reform Act cannot be extended using the Civil Procedure Rules
  • An applicant who opts to move under the Law Reform Act and order 53 is bound by its six-month limitation, though judicial review may alternatively be anchored under the Constitution or the Fair Administrative Action Act without leave

Court orders

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  1. 1.The preliminary objection is upheld and the application for leave to apply for judicial review is struck out
  2. 2.Costs to the respondent and the interested party

Authorities

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Legislation

  • Law Reform Actsections 8, 9
  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure Rulesorder 5 rule 3, order 53 rule 2, order 49, order 50 rule 6
  • Fair Administrative Actions Actsection 7, section 9(2)
  • Environment and Land Court Actsection 13(7), section 16A
  • Constitution of Kenya, 2010article 22, 23(3), 159
  • Land Disputes Tribunal Actrepealed
  • Limitation of Actions Actcap 22

Cases cited (10)

  • Mason Services Limited v Parklands Baptist Church Registered Trustees & Another
    (2018) eKLR
  • Geoffrey Muthinja & Another v Samuel Mbugua Henry & 1756 Others
    (2015) eKLR
  • Peter Orengo Migiro (Suing on behalf of the late Christopher Orenge Makori) v Samwel Omagwa James & 2 Others
    (2022) eKLR
  • Republic v Mwangi Nguyai & 3 Others ex parte Haru Nguyai
  • Wilson Osolo v John Ojiambo Ochola & Another
    (1995) eKLR (also cited as (1996) eKLR)
  • Republic v Principal Kadhi ex parte Alibhai Adamali Dar & 2 Others; Murtaz Tuarabali (Interested Party)
    (2022) eKLR
  • Madbury v Madison
  • Oraro v Mbaja
    (2005) eKLR
  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Ltd
  • National Social Security Limited v Sokomanja Limited
    (2021) eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (cap 26), sections 1A, 1B and 3A of the Civil Procedure Act (cap 21) and order 53 of the Civil Procedure Rules

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 Chairman Uasin Gishu Land Disputes Tribunal & another; Baroswa (Exparte); Kitilit (Interested Party) (Judicial Review Miscellaneous Application E20 of 2022) [2023] KEELC 859 (KLR)", Case Analysis (2023). Not stated in the judgment (ex parte chamber summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/859/eng@2023-02-14

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