Ong’ong’o v Ong’ong’o & 2 others (Judicial Review 1 of 2023) [2024] KEELC 1441 (KLR)
The bottom line
#The Environment and Land Court in Siaya struck out a judicial review attempt to undo decade-old land decisions, because it was filed years past Kenya's strict six-month deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether the chamber summons for leave to apply for judicial review was time barred
Yes - the impugned decisions were rendered between 2010 and 2014, far outside the six-month limit for certiorari under section 9(3) of the Law Reform Act and Order 53 rule 2
The court reproduced section 9(2) and (3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules, and adopted the Court of Appeal decision in Wilson Osolo v John Ojiambo Ochola holding that statutory time limits cannot be extended. On scrutiny, the actual dates of the Tribunal decision (20/04/2010), the SRM decision (25/06/2010) and the registrar's decision (30/12/2014) were 9 to 13 years old. The court found the misdating of the decisions on the motion was intended to mislead the court and obtain orders through the back door.
Whether the chamber summons was sub judice to Bondo ELC Case no. E044 of 2023
No - the 1st respondent did not avail the alleged pending proceedings to prove the claim
The court set out section 6 of the Civil Procedure Act and explained that sub judice requires a previously instituted suit pending between the same parties, to avoid conflicting orders from multiplicity of cases. Although the 1st respondent asserted that eviction orders were sought in Bondo ELC Case no. E044 of 2023, he did not tender those proceedings for verification, so the plea failed on its burden of proof.
Whether the chamber summons was res judicata in respect of Kisumu ELC Case no. 554 of 2015
No - the parties and issues differed; the prior suit determined ownership on merits, whereas the motion invoked supervisory jurisdiction over the decision-making process
Applying section 7 of the Civil Procedure Act and Supreme Court authority, the court noted that although the applicant and 1st respondent were parties to the earlier ELC suit, other parties here were not, and the issues in the two matters were at variance: the former suit considered whether the Tribunal and SRM decisions were nullities for want of jurisdiction, while the motion interrogated the decision-making process of public bodies. Res judicata therefore did not apply.
Misdescription of parties in the chamber summons
The applicant was misdescribed: the Republic is typically the applicant, the proper applicant should be styled ex parte applicant, and the 1st respondent should have been described as an interested party
The court flagged this as a preliminary defect emanating from the chamber summons and affidavits before turning to the substantive issues, noting that the supporting affidavit was filed instead of a verifying affidavit, though the grounds, statement and affidavit were related.
Legal principles established
#- Applications for leave to apply for certiorari must be made not later than six months after the date of the judgment, order, decree or proceeding sought to be quashed, and that statutory period cannot be extended
- Time limits fixed by statute cannot be extended through procedural rules such as Order 49
- The sub judice doctrine requires the previous suit to be pending before a court of competent jurisdiction, and the party asserting it must tender proof of those pending proceedings
Court orders
#- 1.The applicant's chamber summons dated 14/07/2023 is hereby struck out
- 2.Costs are awarded to the 1st respondent which shall be borne by the applicant
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act (Cap 26)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ong’ong’o v Ong’ong’o & 2 others (Judicial Review 1 of 2023) [2024] KEELC 1441 (KLR)", Case Analysis (2024). Judicial Review chamber summons dated 14/07/2023 (Siaya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1441/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.