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ELCStruck Out· [2024] KEELC 5567 (KLR)

Republic v Senior Scheme Manager Mwea Irrigation Settlement & 2 others; Kimani & another (Exparte Applicants) (Judicial Review E002 of 2023) [2024] KEELC 5567 (KLR)

Environment and Land Court
31 July 2024
JMJ. M. Mutungi
2,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's High Court struck out a judicial review filed more than six months after the decision, confirming that this deadline is strict and cannot be extended.

What this practically means

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Executive summary

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The 1st Respondent raised a preliminary objection to the Ex parte Applicants' Notice of Motion dated 15th June 2023, which sought certiorari to quash farmers' changes made to Rice Holding No 1529 in the Mwea Irrigation Settlement Scheme, and mandamus to cancel resulting subdivisions and revert registration per an Advisory Committee finding of 13/12/2012. The Applicants, registered proprietors of shares in the holding, alleged unauthorized changes to the Rice Holding records between June 2021 and March 2022. The 1st Respondent objected that the proceedings offended Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, which bar applications for leave to apply for certiorari made later than six months after the impugned decision. The single issue was whether the judicial review proceedings, commenced outside the prescribed period, were sustainable. The court noted that when it granted leave on 31st May 2023, it granted only prayer 3 and not the prayer to enlarge time beyond six months, leaving competency open to challenge. Relying on the Court of Appeal's decision in Ako v Special District Commissioner Kisumu and the Sabiha Kassamia case, the court held that the six-month prohibition is mandatory and absolute, and Order 50 Rule 6 cannot be invoked to enlarge time. Because the Applicants had predicated their case on the Law Reform Act and Order 53 rather than the Fair Administrative Action Act, 2015, which contains no limitation period, no alternative avenue was available. The last impugned decision predated the filing by more than six months. The preliminary objection succeeded and the judicial review application was struck out with no order as to costs.

Key legal issues

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01

Whether judicial review proceedings for certiorari commenced beyond six months of the impugned decision are sustainable

Holding

They are not; the six-month prohibition is mandatory and the court cannot extend time under Order 50 Rule 6, and the ex parte grant of leave does not cure the defect

Reasoning

The court held that Order 53 Rule 2 and Section 9(3) of the Law Reform Act are couched in mandatory terms, following the Court of Appeal in Ako. Because leave was granted without the prayer enlarging time, the objection to competency remained open. The applicants predicated their case on the Law Reform Act, not the Fair Administrative Action Act or Article 47, so no alternative limitation-free route was available. The last impugned decision was made more than six months before filing, rendering the proceedings unsustainable.

p. 4

Legal principles established

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  • The six-month limitation in Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules is mandatory and absolute; Order 50 Rule 6 cannot be invoked to enlarge time for judicial review applications for certiorari
  • Where leave is granted ex parte without granting a prayer to enlarge time, the competency of the substantive judicial review application may still be challenged

Court orders

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  1. 1.The Preliminary Objection succeeds and the Judicial Review application is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Law Reform Act, Cap 26Sections 8 and 9(3)
  • Civil Procedure RulesOrder 53 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 50 Rule 6
  • Fair Administrative Action Act, 2015
  • Constitution of Kenya, 2010Articles 159(2)(d), 47 and 48

Cases cited (2)

  • Ako v Special District Commissioner Kisumu & another
    (1989) eKLR
  • Republic v Council of Legal Education & another, Exparte Sabiha Kassamia & another
    (2018) eKLR
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

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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 Senior Scheme Manager Mwea Irrigation Settlement & 2 others; Kimani & another (Exparte Applicants) (Judicial Review E002 of 2023) [2024] KEELC 5567 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5567/eng@2024-07-31

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