Republic v Salim & 2 others; Gami (Exparte Applicant) (Environment and Land Judicial Review Case E006 of 2022) [2024] KEELC 5440 (KLR)

Judicial review jurisdiction is governed substantively by Sections 8 and 9 of the Law Reform Act and procedurally by Order 53 of the Civil Procedure Rules. Both Section 9(3) and Order 53 rule 2 impose a six-month limit for seeking certiorari. Although Order 50 rule 5 permits enlargement of time under the rules, the limitation here is statutory and the Law Reform Act contains no extension provision, so the court had no power to enlarge time.

Relying on Municipal Council of Mombasa v Republic, Wednesbury, Seventh Day Adventist Church and Commissioner of Lands v Kunste Hotel, the court reiterated that a review court examines jurisdiction, hearing and relevant considerations, and cannot act as a court of appeal over the decision-maker. An applicant invoking review to determine contested facts or secure a merits determination exceeds that jurisdiction.

Citing Halsbury's Laws of England (4th Edition, Vol. 2), the court noted that certiorari is a discretionary remedy that must be exercised on evidence and sound legal principles. However, the decisive ground in this case was the statutory six-month limitation, not the exercise of discretion.

The court observed that the Civil Procedure Act provides how appeals from the magistrate's court are to be filed, and the applicant did not pursue that right, instead invoking the Law Reform Act and Order 53. The applicant ought to have appealed rather than seek prerogative orders.