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ELCStruck OutJudicial Review application (impugned decision in Appeal to the Minister Case No. 244 of 2022)· [2024] KEELC 951 (KLR)

Republic v Deputy County Commissoner Makueni; Kavali (Exparte Applicant); Kyeva (Interested Party) (Environment and Land Judicial Review Miscellaneous Application E006 of 2023) [2024] KEELC 951 (KLR)

High Court of Kenya
21 February 2024
TMT. Murigi
1,604 words in judgment
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The bottom line

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Kenya's High Court struck out a judicial review application filed just five days late, confirming the six-month deadline for certiorari is absolute and jurisdictional.

What this practically means

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Executive summary

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This ruling of the High Court determines a Notice of Preliminary Objection dated 13th August 2023 raised by the Respondent against a judicial review application for an order of certiorari. The Respondent argued that the application was filed outside the six-month period prescribed by Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, that it was frivolous and vexatious, and an abuse of the court process, and urged that it be struck out with costs. The Respondent relied on authorities including Mukisa Biscuits on the nature of preliminary objections and Municipal Council of Mombasa and Pastoli on the parameters of judicial review remedies. The Ex Parte Applicant did not file submissions as directed. The court framed a single issue: whether the claim was incompetent for being filed out of time. It held that the objection was a proper preliminary objection on a pure point of law under Mukisa Biscuits and Oraro v Mbaja. The impugned decision was made on 2nd September 2022 and the application filed on 7th March 2023, five days after the six-month deadline. The Applicant's claim that the decision was delivered on 24th November 2022 was unsupported by evidence. The provisions being mandatory, the court held it lacked jurisdiction to entertain the certiorari application outside the limitation period, invoking public policy that judicial review remedies are exceptional and unavailable to indolent parties. The court upheld the preliminary objection, struck out the judicial review application and awarded costs to the Respondent.

Key legal issues

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01

Whether the judicial review application is incompetent for being filed out of time

Holding

Yes - the application was filed 5 days after the six-month deadline and the court lacks jurisdiction to entertain it

Reasoning

Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules are couched in mandatory terms that leave for certiorari shall not be granted unless the application is made within six months of the decision. The impugned decision was made on 2nd September 2022 and the application filed on 7th March 2023, five days late. The Applicant's assertion that the decision was delivered on 24th November 2022 was unsupported by any evidence. Judicial review remedies are exceptional and not available to those who sleep on their rights.

p. 4
02

Whether the Respondent's notice qualifies as a proper preliminary objection

Holding

Yes - limitation of time is a pure point of law fitting the Mukisa Biscuits description

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, a preliminary objection must be a point of law not blurred with factual details. The issue of limitation of time is a pure point of law capable of disposing of the suit without ascertaining facts or exercising judicial discretion, so the notice is properly a preliminary objection.

p. 3

Legal principles established

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  • An application for an order of certiorari must be made not later than six months after the date of the judgment, order, decree, conviction or other proceedings sought to be quashed.
  • A preliminary objection must be on a pure point of law, as laid down in Mukisa Biscuits.

Court orders

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  1. 1.The Preliminary Objection dated 13th August 2023 is upheld
  2. 2.The judicial review application is struck out with costs to the Respondent
Jurisdiction invoked
Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules (judicial review jurisdiction)

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 Deputy County Commissoner Makueni; Kavali (Exparte Applicant); Kyeva (Interested Party) (Environment and Land Judicial Review Miscellaneous Application E006 of 2023) [2024] KEELC 951 (KLR)", Case Analysis (2024). Judicial Review application (impugned decision in Appeal to the Minister Case No. 244 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/951/eng@2024-02-21

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