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ELCStruck OutNot stated in judgment (Judicial Review Notice of Motion dated 21st February, 2023)· [2024] KEELC 3837 (KLR)

Okwaro v Directorate of Criminal Investigations; Odero (Sued as the Chairman Kenya Secondary Schools Heads Association) (Interested Party) (Environment and Land Miscellaneous Application E038 of 2022) [2024] KEELC 3837 (KLR)

Environment and Land Court of Kenya
14 May 2024
1,766 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 struck out a judicial review case because it was filed just one day late, showing courts enforce strict filing deadlines.

What this practically means

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Executive summary

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This was a judicial review application before the Environment and Land Court at Machakos in which Joseph Oduor Okwaro, the ex parte Applicant, sought an order of certiorari to quash charges drafted by the Directorate of Criminal Investigations on 16th August 2022 and an order of prohibiting the Respondent from arresting, arraigning or detaining him over a land dispute concerning LR Nos. Machakos/Mavoko/20157-20163. The Applicant contended that ownership of the suit land was already the subject of ELC No. 280 of 2017, filed in 2017, five years before the complaint to the DCI, and that prosecution would prejudice him. The Respondent, through Corporal Leonard Siele, explained that a complaint of forgery and fraud was lodged by Professor John Paul Odero in October 2019, the DPP recommended charges, a charge sheet was prepared as Criminal Case No. E807, and that criminal proceedings could coexist with civil proceedings under Section 193A of the Criminal Procedure Code. The Respondent also raised a jurisdictional objection and argued the motion was filed out of time. The court framed two issues: whether the motion was properly before the court, and whether the Applicant was entitled to the orders sought. Applying Order 53(3)(1) of the Civil Procedure Rules and Court of Appeal authority, the court found that leave to file the substantive motion was granted on 2nd February 2023 for 21 days, but the motion was filed on 24th February 2023, one day outside that period and without leave to extend time. It therefore struck out the motion as incurably defective without determining the merits, and made no order as to costs.

Key legal issues

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01

Whether the substantive judicial review motion filed 22 days after leave was properly before the court

Holding

The motion was filed out of time without leave to extend time and was therefore incurably defective and liable to be struck out

Reasoning

Order 53(3)(1) of the Civil Procedure Rules requires a judicial review application to be made within 21 days of leave unless the judge granting leave otherwise directed. The court granted 21 days on 2nd February 2023; the motion was filed on 24th February 2023, one day late, and no extension of time was sought. Relying on Court of Appeal authority, the court held it could not entertain the motion.

p. 3
02

Whether the Applicant was entitled to certiorari and prohibition against the criminal charges

Holding

The issue was not reached; the court struck out the motion without determining entitlement to the remedies sought

Reasoning

Because the substantive motion was incompetent, the court declined to assess the merits, including whether the DCI's investigation and contemplated prosecution were irregular given the pending ELC suit over the suit land.

p. 4

Legal principles established

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  • A substantive judicial review motion under Order 53 must be filed within 21 days of leave, or within any extended period granted on application; filing outside that period without leave to extend time renders the motion incurably defective

Court orders

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  1. 1.The Notice of Motion Application dated 21st February, 2023 and filed on 24th February, 2023 is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 262(b)
  • Constitution of Kenya, 2010Article 247
  • Constitution of Kenya, 2010Article 147
  • Constitution of Kenya, 2010Article 165(6)
  • Environment and Land Court ActNot specified
  • National Police Service Act, 2011Sections 28 and 35
  • Criminal Procedure CodeSection 193A
  • Civil Procedure RulesOrder 53(3)(1)

Cases cited (9)

  • Republic v Chief Magistrate's Court at Mombasa ex parte Ganijee & another
    [2002] 2 KLR 703
  • Peter Ngunjiri Maina v Director of Public Prosecutions
    [2017] eKLR
  • Samson Kimathi & 3 others v Arthur Mathew Raphael Muthuri & another
    [2021] eKLR
  • Pastoli v Kabale District & others
    [2008] 2 EA 300
  • Republic v Commissioner of Police & another ex parte Michael Monari & another
    [2021] eKLR
  • Alfred Lumiti Lusiba v Pethad Ranik Shantilal & 2 others
    [2016] eKLR
  • Republic v Director of Public Prosecutions & another ex parte Chamanlal Vrajlal Kimani & 2 others
    [2015] eKLR
  • Republic v Chairman Amagoro Land Disputes Tribunal & Jacinta Papa ex parte In the matter of Paul Mafwabi Wanyama
    [2014] eKLR, Civil Appeal No 41 of 2013
  • Njeru Njagi v Gabriel Njue Joseph & another
    [2015] eKLR
Jurisdiction invoked
Judicial review under the Law Reform Act and Order 53 of the Civil Procedure Rules; Applicant invoked Article 262(b) of the Constitution and the Environment and Land Court Act

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, "Okwaro v Directorate of Criminal Investigations; Odero (Sued as the Chairman Kenya Secondary Schools Heads Association) (Interested Party) (Environment and Land Miscellaneous Application E038 of 2022) [2024] KEELC 3837 (KLR)", Case Analysis (2024). Not stated in judgment (Judicial Review Notice of Motion dated 21st February, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3837/eng@2024-05-14

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