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ELCDismissedJudicial Review proceedings re Objections No's 3084, 3086 and 3094 over Land Parcels Nos. 1136, 7770, 11478 and 3866 Karama Adjudication Section· [2024] KEELC 598 (KLR)

Exparte Applicant v Principal Adjudication Officer & 3 others (Judicial Review)

Environment and Land Court
7 February 2024
573 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a land dispute case because the applicant missed a 21-day filing deadline after getting permission to sue.

What this practically means

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Executive summary

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On 26.7.2023 the court granted the exparte applicant leave to commence judicial review proceedings to quash and prohibit the implementation of the 1st respondent's decision of 6.12.2022 regarding Objections Nos. 3084, 3086 and 3094 over Land Parcels Nos. 1136, 7770, 11478 and 3866 Karama Adjudication Section, with the substantive notice of motion to be filed within 21 days. At mentions, counsel confirmed the motion had allegedly been filed on 16.8.2023 and served, and respondents and interested parties filed responses and submissions. However, the court could not trace any notice of motion filed on 16.8.2023 or dated 15.8.2023 in its records, nor in the e-filing and e-payment systems, and the applicant did not produce a filed copy. The court held that the law requires the notice of motion to be filed within 21 days of leave (by 16.8.2023), that non-compliance renders the leave spent and all subsequent filings, including the respondents' and interested parties' replies, a nullity, and that without an extension of time and fresh leave the proceedings are a nullity. Applying the rule that he who alleges must prove, the court placed the onus on the applicant to demonstrate compliance through duly stamped and paid documents and receipts, which were absent from the file. The court therefore found it unnecessary to consider the respondents' replying affidavits and submissions, declared the proceedings a nullity, dismissed them with costs to the respondents and the interested parties, and closed the file.

Key legal issues

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01

Timely filing of the substantive notice of motion after leave in judicial review

Holding

The applicant did not file the notice of motion within the 21 days from 26.7.2023 (i.e. by 16.8.2023); no filed copy could be traced in the court record or e-filing systems

Reasoning

The court could not trace any notice of motion dated 15.8.2023 or filed on 16.8.2023 in its records or the e-filing and e-payment systems, and the applicant did not supply a filed copy. The burden lay on the applicant to prove compliance with the timeline or the court's orders, and no stamped and paid motion or receipt was on the file.

p. 2
02

Consequence of non-compliance with the filing timeline

Holding

The leave becomes spent and all subsequent proceedings, including the respondents' and interested parties' responses and submissions, are a nullity

Reasoning

Non-compliance with the statutory timeline for filing the substantive motion means the leave lapses. Without extension of time and fresh leave, anything filed thereafter, including the responses and submissions, is of no legal effect, and the court found it unnecessary to consider them.

p. 2
03

Burden of proving compliance

Holding

The onus was on the exparte applicant to establish compliance with the court's orders on time or at all

Reasoning

Applying the principle that he who alleges must prove, the court held that the applicant had to demonstrate through the court file, duly stamped and paid documents and receipts that the motion was filed in time. Absence of these from the file was fatal to the proceedings.

p. 2

Legal principles established

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  • Once leave to apply for judicial review is granted, the substantive notice of motion must be filed within 21 days or such other period as the court fixes; non-compliance renders the leave spent and subsequent proceedings a nullity
  • Compliance with filing timelines must be proved on the court record by duly stamped and paid documents, not by guesswork

Court orders

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  1. 1.The judicial review proceedings are declared a nullity
  2. 2.The proceedings are dismissed with costs to the respondents and the interested parties
  3. 3.File closed

Authorities

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Legislation

  • Civil Procedure Rules (order governing judicial review)Requirement to file notice of motion within 21 days of leave
Jurisdiction invoked
Judicial review jurisdiction under the Fair Administrative Action Act/Order 53 of the Civil Procedure Rules (leave granted on 26.7.2023 to commence judicial review proceedings)

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, "Exparte Applicant v Principal Adjudication Officer & 3 others (Judicial Review)", Case Analysis (2024). Judicial Review proceedings re Objections No's 3084, 3086 and 3094 over Land Parcels Nos. 1136, 7770, 11478 and 3866 Karama Adjudication Section. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/598/eng@2024-02-07

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