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ELCStruck OutNot stated in the judgment (Ex-Parte Applicant's Notice of Motion dated 30th May 2024)· [2025] KEELC 55 (KLR)

State v Cabinet Secretary, State Department for Lands and Physical Planning & 2 others; Rowa (Exparte Applicant); Ngorome & 4 others (Interested Parties) (Judicial Review Miscellaneous Application E005 of 2024) [2025] KEELC 55 (KLR)

High Court of Kenya (Judicial Review Division)
21 January 2025
FNF. Nyagaka
3,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The High Court struck out a landowner's judicial review case because it was filed 16 days past the strict 21-day deadline after leave was granted.

What this practically means

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Executive summary

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The Ex-Parte Applicant, Dismas Okello Willim Rowa, moved the Court by Notice of Motion dated 30th May 2024 under Articles 40, 47, 48 and 50 of the Constitution, Sections 8 and 11 of the Law Reform Act and Order 53 of the Civil Procedure Rules, seeking orders of prohibition and certiorari to quash and restrain execution of a ruling of the Respondents delivered on 3rd November 2023 in a dispute over land parcels Kaksingri West B/1291, 1292, 1293 and 1294. Before the merits could be heard, the Respondents and Interested Parties raised a Preliminary Objection contending the motion was filed without leave and out of time contrary to Order 53 and Section 8 of the Law Reform Act. The Ex-Parte Applicant filed no submissions. The Court, applying Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd on the nature of preliminary objections and using an IRAC analysis, found that leave had in fact been granted on 6th May 2024 with directions to file and serve the Notice of Motion within 21 days, contrary to the Respondents' assertion that no leave existed. However, the motion was filed on 13th June 2024, 37 days after the grant of leave, without any extension of time. Relying on the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC, the Court held that a document filed out of time without leave is a nullity and of no legal consequence. The Court observed that the leave lapsed upon expiry of the 21 days and no valid motion could be founded on it, and declined to consider the merits of the judicial review. Accordingly, the Notice of Motion was struck out as a nullity, with costs to the Respondents and Interested Parties, and the file was closed subject to payment of those costs.

Key legal issues

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01

Whether leave to apply for judicial review must be obtained before filing the substantive motion, and whether compliance with the 21-day period in Order 53 Rule 3 is mandatory

Holding

Leave was granted on 6th May 2024 with directions to file and serve the Notice of Motion within 21 days; the motion was filed on 13th June 2024, 37 days later, without extension of time, so it was filed without existing leave and was a nullity

Reasoning

Order 53 Rules 1(1), 2 and 3 require leave before a judicial review application, leave for certiorari within six months of the decision, and the substantive motion within 21 days of leave. The Court found leave was actually granted on 6th May 2024 (contrary to the Respondents' assertion there was none), but the applicant filed the motion 37 days later with no extension sought. Citing the Supreme Court in Nicholas Salat, the Court held a document filed out of time without leave is a nullity and struck it out.

p. 6
02

Whether the Preliminary Objection was a proper point of law

Holding

Yes; the objection was founded on Order 53 and Section 8 of the Law Reform Act and could be determined on the pleadings alone

Reasoning

Applying Mukhisa Biscuit, the Court held a preliminary objection is a pure point of law determined on the pleadings without ascertaining facts. The objection here alleged non-compliance with Order 53 and Section 8 of the Law Reform Act, issues of law ascertainable from the pleadings and the record, and could properly dispose of the suit before the merits of the judicial review motion were reached.

p. 4

Legal principles established

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  • A judicial review motion under Order 53 Rule 3 must be filed within 21 days of the grant of leave, and there appears to be no room for extension of that period
  • A document filed out of time without leave of the Court is a nullity and of no legal consequence
  • A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Submissions do not constitute evidence

Court orders

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  1. 1.The Notice of Motion dated 30th May 2024 is a nullity and is struck out
  2. 2.Costs of the application are awarded to the Respondents and the Interested Parties
  3. 3.The file is closed subject to payment of costs as ordered

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 48 and 50
  • Law Reform ActSections 8 and 11
  • Civil Procedure Rules, 2010Order 53 Rules 1(1), 2, 3(1), 4(1); Order 50 Rule 6; Order 53 Rule 2

Cases cited (9)

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
  • Republic v. Chief Magistrate, Milimani Commercial Courts and 2 others Ex Parte Frederick Bett
    [2022] eKLR
  • Wilson Osolo v John Ojiambo Ochola & Another
    [1996] eKLR Civil Appeal No. 6 of 1995
  • Republic v. Principal Magistrates Court Kerugoya & 2 others Ex Parte Nancy Wathiba Kimoo
    [2015] eKLR, High Court at Kerugoya Judicial Review No. 20 of 2013
  • Christine Kerubo Bosire & 15 others versus Ministry of Education & another
    [2019] eKLR, High Court at Kisii Constitutional Judicial Review 2 of 2018
  • Mukhisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd
    (1969) EA 696
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR
  • SUSAN WAIRIMU NDIANGUI V PAULINE W. THUO & ANOTHER
    [2005] eKLR
  • Nicholas Kiptoo Arap Korir Salat V Independent Electoral And Boundaries Commission & 7 Others
    [2014] EKLR
Jurisdiction invoked
Articles 40, 47, 48 and 50 of the Constitution of Kenya, 2010; Sections 8 and 11 of the Law Reform Act; Order 53 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "State v Cabinet Secretary, State Department for Lands and Physical Planning & 2 others; Rowa (Exparte Applicant); Ngorome & 4 others (Interested Parties) (Judicial Review Miscellaneous Application E005 of 2024) [2025] KEELC 55 (KLR)", Case Analysis (2025). Not stated in the judgment (Ex-Parte Applicant's Notice of Motion dated 30th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/55/eng@2025-01-21

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