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ELCStruck OutNot stated in excerpt· [2024] KEELC 488 (KLR)

Republic v Naivasha District Land Registrar & 3 others; Macharia (Exparte Applicant) (Environment and Land Judicial Review Case 1 of 2023) [2024] KEELC 488 (KLR)

High Court of Kenya
2 February 2024
AOA O Ombwayo
343 words in judgment
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The bottom line

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Kenya's High Court struck out a judicial review case because the application was filed just three days late without asking for extra time.

What this practically means

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Executive summary

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The exparte applicant obtained leave on 22 September 2023 to apply for judicial review and was directed to file the Notice of Motion within 21 days. The motion was instead filed on 16 October 2023, roughly 24 days after leave was granted. In a brief ruling, A O Ombwayo J considered whether the court could entertain a motion filed outside the mandatory 21-day window set by Order 53 Rule 3(1) of the Civil Procedure Rules. The court relied on the Court of Appeal decision in Wilson Osolo v John Ojiambo Ochola & the Attorney General, which held that the 21-day period, being derived verbatim from section 9(3) of the Law Reform Act, is a statutory limitation that cannot be extended through Order 49 of the Civil Procedure Rules unless an extension application is made. Since no application to extend time had been made and leave had been granted, the motion filed out of time was not a proper application before the court. The judge held that the court had no jurisdiction to entertain the Notice of Motion and struck it out. The judgment was dated, signed and delivered virtually at Nakuru on 2 February 2024. No costs order is recorded. The key practical point is the mandatory nature of the 21-day filing requirement and the need for an extension application where the deadline cannot be met.

Key legal issues

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01

Jurisdiction to entertain a judicial review motion filed out of time

Holding

The court has no jurisdiction over a Notice of Motion filed after the 21-day period without leave, and the application is struck out

Reasoning

Leave was granted on 22 September 2023 requiring the motion to be filed within 21 days, but it was filed on 16 October 2023, about 24 days later. Relying on Wilson Osolo v John Ojiambo Ochola, the 21-day period is a mandatory statutory-derived requirement that cannot be cured under Order 49 absent an extension application. Filing out of time without leave means no proper application was before the court.

p. 2

Legal principles established

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  • A Notice of Motion in judicial review must be filed within 21 days of grant of leave; filing out of time without leave deprives the court of jurisdiction
  • The time limited for filing under Order 53 derives from statute and cannot be extended under Order 49 without an application

Court orders

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  1. 1.The Notice of Motion dated and filed out of time is struck out
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules; leave granted 22 September 2023

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 Naivasha District Land Registrar & 3 others; Macharia (Exparte Applicant) (Environment and Land Judicial Review Case 1 of 2023) [2024] KEELC 488 (KLR)", Case Analysis (2024). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/488/eng@2024-02-02

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