Kariuki v Deputy County Commissioner Buuri East Sub-County & another; M'munoru (Interested Party) (Environment and Land Judicial Review Case E007 of 2023) [2024] KEELC 4774 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Limitation for judicial review by certiorari
The application was time-barred; the six-month period under Section 9(3) of the Law Reform Act and Order 53 had expired before the exparte applicant approached the court, and the period cannot be extended
The court applied Chabari v DLASO, which cited Wilson Osolo v John Odhiambo Achola and Republic v Chairman Amagoro Land Dispute Tribunal exparte Mafwabi Wanyama, holding that time under Section 9 of the Law Reform Act cannot be extended under Order 49 or Section 9(3), and that rules cannot override a statutory provision; the delay is not curable under Article 159(2)(d).
Merits - fairness and lawfulness of the Minister's decision-making process
The Minister's process was fair and lawful: both parties were heard, exhibits were availed, a locus in quo visit was conducted, and all relevant material was considered; the applicant failed to prove unfairness or unlawfulness
The court noted the applicant's challenge attacked the merits (ignoring the 1976 sale agreement and occupation) rather than the process. Judicial review concerns jurisdiction, fair hearing and relevant considerations, not merits. The proceedings showed each party was heard, and the applicant's own admission showed the interested party's entry was consensual. No irrationality or failure to consider relevant matters was demonstrated.
Invocation of Article 47 of the Constitution at notice of motion stage
The exparte applicant had not invoked Article 47 in the original chamber summons; raising it in the notice of motion was challenged as illegal, and where traditional judicial review is used without invoking the Constitution, no merit-based review lies
Counsel for the interested party submitted that Article 47 had not been invoked in the original exparte chamber summons and introducing it in the notice of motion was illegal; the applicant's counsel confirmed the Constitution had not been invoked in the original documents. The court cited Dande v Inspector General National Police Service that where a party uses traditional judicial review without invoking the Constitution, the court shall not undertake a merit-based review.
Legal principles established
#- Certiorari proceedings must be instituted within six months of the decision; time under Section 9(3) of the Law Reform Act cannot be extended, and delay is not curable under Article 159(2)(d) of the Constitution
- Judicial review is concerned with the decision-making process, not the merits; a party alleging unfairness or unlawfulness in the process must plead and prove it
Court orders
#- 1.The notice of motion dated 12.2.2024 is dismissed
- 2.Costs to the interested party
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act (judicial review - certiorari)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Deputy County Commissioner Buuri East Sub-County & another; M'munoru (Interested Party) (Environment and Land Judicial Review Case E007 of 2023) [2024] KEELC 4774 (KLR)", Case Analysis (2024). Judicial Review (E&L) - Notice of Motion dated 12.2.2024 (re Minister's Appeal No. 117/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4774/eng@2024-06-12
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