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ELCAllowedJudicial Review Application arising from Notice of Motion dated 19.04.2023· [2024] KEELC 7020 (KLR)

Republic v Attorney General & another; Njue (Ex parte Applicant); Raici (Interested Party) (Environment and Land Miscellaneous Application 20 of 2022) [2024] KEELC 7020 (KLR)

Environment and Land Court
24 October 2024
2,603 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (A. Kaniaru J) on a notice of motion dated 19.04.2023 by Stephen Magaru Njue, the ex-parte applicant, seeking extension of time to file a substantive judicial review motion for certiorari to quash a decision of the Special District Commissioner made on 22.02.2022 in Minister's Land Appeal Case No. 118 of 1990. Leave had been granted by Cherono J of the ELC at Kerugoya on condition that the substantive motion be filed within 21 days, but the applicant's advocate only learned of the chamber grant after the period lapsed, blaming registry staff for failing to communicate the order. The 1st and 2nd respondents and the interested party opposed, contending that Order 53 Rule 3 of the Civil Procedure Rules fixes a 21-day period that cannot be enlarged, that the court was functus officio, and that the applicant was indolent, while the interested party asserted he had already implemented the minister's decision by taking possession of the awarded land. Relying on Wilson Osolo v John Ojiambo Ochola and Republic v General Manager, Moi International Airport Ex-parte Jared Adimo Odhiambo, the court held it has jurisdiction to enlarge the 21-day period. Accepting the advocate's explanation for the roughly eight-month delay, the court found no prejudice to the interested party, who may remain in possession pending the substantive hearing. The court allowed the motion, directed the applicant to file and serve the substantive suit within 21 days, and ordered costs in the cause.

Key legal issues

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01

Whether the court has jurisdiction to enlarge the 21-day period for filing a substantive judicial review motion under Order 53 Rule 3

Holding

The court has jurisdiction to enlarge the time; the 21-day period under Order 53 Rule 3 is not inelastic.

Reasoning

Relying on Wilson Osolo v John Ojiambo Ochola, where the Court of Appeal noted the 21 days could have been extended by a reasonable period had an application under Order 49 been made, and on Republic v General Manager, Moi International Airport Ex-parte Jared Adimo Odhiambo, which held the court has power to enlarge the Order 53 Rule 3 period, the court concluded the 21-day period is not fixed and can be enlarged in the court's discretion.

p. 5
02

Whether the applicant's delay of about 8 months in filing the application was excusable

Holding

Though inordinate, the delay was satisfactorily explained by the applicant's advocate (registry failure to communicate the grant of leave) and the court accepted the explanation.

Reasoning

The applicant explained that leave was granted in chambers on 4.8.2022 but the Kerugoya registry staff failed to communicate this to his advocate, so the 21-day period lapsed before the advocate learned of it. The court held a party should be heard on merit unless indolence is established and accepted the advocate's explanation despite the roughly eight-month delay.

p. 5
03

Whether the interested party would suffer prejudice if leave is extended, having implemented the minister's decision and assumed possession of the land

Holding

No prejudice, as the interested party can remain in possession pending the outcome of the substantive application.

Reasoning

The interested party argued he had taken possession of land parcel Evurore/Nthambu 2103 awarded by the minister's decision and that the extension would cause substantive loss not compensable by damages. The court reasoned the extension orders do not dispossess him; he may continue in possession pending determination of the substantive suit, so no prejudice arises.

p. 5
04

Whether failure to attach the order sought to be enlarged was fatal

Holding

Not fatal, as the order forms part of the court record; the applicant need only serve it on the interested party.

Reasoning

The respondents and interested party objected that the applicant did not attach the court order he wished enlarged. The court held the order is on the record and directed the applicant to serve it on the interested party who claimed not to have been served.

p. 5

Legal principles established

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  • The court has jurisdiction to enlarge the 21-day period under Order 53 Rule 3 of the Civil Procedure Rules within which the substantive judicial review motion must be filed
  • Although the time limited by the Civil Procedure Rules may be extended, time limited by statute (the Law Reform Act) cannot be extended via Civil Procedure Rules as quoted from Wilson Osolo

Court orders

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  1. 1.Notice of Motion dated 19.4.2023 allowed
  2. 2.Applicant to file and serve the substantive suit within 21 days from the date of the ruling
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 50 rule 6; Order 50 rule 1; Order 51 rule 13(2); Order 53 rule 1(1)(2); Order 53 rule 2; Order 53 rule 3; Order 49
  • Law Reform ActSection 9(3)

Cases cited (10)

  • Republic v General Manager, Moi International Airport & Anor Ex-parte Jared Adimo Odhiambo & Anor
    (2014) eKLR
  • Belinda Murai & others v Amos Wainaina
    (1978) KLR 278
  • Richard Ncharpi Leiyagu v IEBC & 2 others
    Nyeri CA 18/213
  • Republic Procurement Administrative Review Board Ex-parte Syner-Chemie Ltd
    (2016) eKLR
  • Ivita v Kyumba
    (1984) KLR 441
  • Nicholas Arap Korir Salat v IEBC & Others
    SC Application No 16 of 2014
  • Aviation and Allied Workers Union v KQ Ltd
    null
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Anor
    (2016) eKLR
  • Republic v Moca Land Disputes Tribunal & 2 others Exparte John Muchiri Magundu
    (2010) eKLR
  • Wilson Osolo vs John Ojiambo Ochola & the Attorney General
    CA No 6 Nairobi of 1995
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution of Kenya; Order 50 rule 6, Order 51 rule 13(2), Order 53 rules 1(1)(2), 2 and 3 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 Attorney General & another; Njue (Ex parte Applicant); Raici (Interested Party) (Environment and Land Miscellaneous Application 20 of 2022) [2024] KEELC 7020 (KLR)", Case Analysis (2024). Judicial Review Application arising from Notice of Motion dated 19.04.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7020/eng@2024-10-24

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