Republic v Attornery General & 3 others; Nganga (Applicant) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 1215 (KLR)

The matter before the Magistrate's Court was the nomination of a successor to Riceholding No. 1501 after the licensee died without nominating one. Regulation 7(4) permitted an authorized dependent to nominate a successor for approval by the Court, so the Court properly had jurisdiction in 1977. Having validly made the order, review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was available to any person considering himself aggrieved, whether or not a party. Merit of the review application was beside the point for jurisdiction.

Both Order 53 Rule 2 and Section 9(3) of the Law Reform Act provide in mandatory terms that leave for certiorari shall not be granted unless the application is made within six months of the impugned proceeding. The order reviewing the 1977 nomination was made on 8th September 2009, yet the applicant sought leave only in March 2023. The applicant's contention that limitation does not apply where an order is made without jurisdiction failed because the Magistrate's Court had jurisdiction. Nor does the ex parte grant of leave immunise the application.

The Fair Administrative Actions Act, 2015 was enacted to give effect to Article 47 of the Constitution. The actions complained about occurred between 2004 and 2009, when the applicable substantive law was the Law Reform Act, Cap 26, Sections 8 and 9, and Order 53 Rule 2 of the Civil Procedure Rules. The Act has no retrospective application to override the pre-existing law, and Section 7 could not apply in the circumstances since the Magistrate's Court had jurisdiction to entertain the review.