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ELCDismissedJudicial Review (Application dated 12 January 2024)· [2024] KEELC 4849 (KLR)

Republic v Kisii County Government & 4 others; Tumbo & 9 others (Exparte) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 4849 (KLR)

Environment and Land Court
13 June 2024
MSMUNYAO SILA
2,020 words in judgment
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The bottom line

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A Kisii court dismissed landowners' late judicial review application, confirming that Kenya's 21-day filing deadline is strict and missed only for genuinely unavoidable reasons.

What this practically means

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Executive summary

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The ex parte applicants, alleging ownership of plots in Kisii County, obtained leave on 14 November 2023 to commence judicial review proceedings for certiorari to quash an eviction notice dated 14 August 2023 and mandamus to compel survey and issuance of title. Leave was to operate as a stay, and the court directed that the substantive motion be filed within 21 days, lapsing on 5 December 2023. The motion was instead filed on 17 January 2024, and the applicants filed the present application seeking extension of the 21-day period by 38 days and admission of the late motion. Counsel attributed the delay to time spent obtaining documents and a mistaken belief that weekends are excluded in computing time. State Counsel for the respondents argued there is no provision in Order 53 for extension after leave lapses and no compelling reasons were shown. The court held, following Republic v Public Procurement Administrative Review Board ex parte Cyner-Chemie Limited, that it retains a discretion to extend time despite the absence of an express rule, guided by the principles in Shah v Mbogo. However, judicial review is subject to strict timelines, and neither reason advanced was genuine: the affidavit of counsel lacked specifics, the litigants themselves gave no explanation, and the weekends explanation was arithmetically implausible. The application was dismissed with costs, the court noting the applicants may pursue an alternative procedure.

Key legal issues

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01

Whether the court has discretion to extend time for filing the main judicial review motion out of time

Holding

The court has such discretion, notwithstanding the absence of an express provision in Order 53, but it must be exercised only on good, genuine reasons.

Reasoning

Order 53 Rule 3 uses the word 'shall' and contains no extension provision. Two schools of thought exist on whether extension is possible. Following Aburili J's analysis in Republic v Public Procurement Administrative Review Board ex parte Cyner-Chemie Limited, the court adopted the view that a discretion exists. However, drawing on Shah v Mbogo, the discretion serves to relieve accident, inadvertence or excusable mistake, not to assist parties who delay the course of justice.

p. 3
02

Whether the reasons advanced by the ex parte applicants justified extension of time

Holding

Neither reason - waiting for material from the applicants, nor counsel's belief that weekends are excluded - was plausible or genuine.

Reasoning

A litigant choosing judicial review must assemble its material within the strict time frame; the affidavit of counsel lacked specifics on what material was being sought, and no affidavit from the litigants themselves was filed. The weekends argument was arithmetically implausible: even excluding weekends the motion would have been filed around 11 December 2023, yet it was filed on 17 January 2024. Ignorance of the law is no excuse.

p. 4

Legal principles established

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  • The court has discretion to extend the 21-day period in Order 53 Rule 3 for filing the substantive judicial review motion, but the discretion is exercised only where a plausible and genuine reason for the delay is given.
  • Judicial review proceedings are subject to strict timelines and the discretion to extend time ought not to be liberally exercised.
  • A litigant who opts for judicial review must gather all material within the statutory timeframe; counsel's mistakes or ignorance of the law are not sufficient reasons to extend time.

Court orders

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  1. 1.The application dated 12 January 2024 is dismissed with costs
  2. 2.The ex parte applicants are left to pursue an alternative path to present their grievances

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3

Cases cited (2)

  • Republic v Public Procurement Administrative Review Board ex parte Cyner-Chemie Limited
    High Court at Milimani, Judicial Review Nos. 371 and 372 of 2015 (2016) eKLR
  • Shah v Mbogo
    (1967) EA 116
Jurisdiction invoked
Original judicial review jurisdiction of the High Court/ELC under Order 53 of the Civil Procedure Rules

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 Kisii County Government & 4 others; Tumbo & 9 others (Exparte) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 4849 (KLR)", Case Analysis (2024). Judicial Review (Application dated 12 January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4849/eng@2024-06-13

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