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ELCDismissedJudicial Review Notice of Motion dated 14/08/2024· [2025] KEELC 4654 (KLR)

Republic v Cabinet Secretary, Ministry of Lands and Housing & 2 others; Muthoka & another (Sued as the Administrator of the Estate of Mwangangi Muthoka) (Interested Party); Musyimi (Suing as the Administrator of the Estate of Musyimi Kilonzo) (Ex parte Applicant) (Environment and Land Miscellaneous Application E032 of 2024) [2025] KEELC 4654 (KLR)

High Court of Kenya
24 June 2025
AKA. Y. Koross
2,118 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Machakos dismissed a man's challenge to a land decision because he filed more than six months after the judgment, a deadline courts cannot extend.

What this practically means

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Executive summary

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The ex parte applicant, Godfrey Kiswii Musyimi, moved the High Court at Machakos by notice of motion dated 14/08/2024 seeking leave to institute judicial review proceedings out of time against the judgment of the Deputy County Commissioner, Masinga sub-county, delivered on 7/06/2023 in Land Adjudication Appeals Nos. 228 of 2007 and 77 of 2007 concerning land parcels 2330, 2331 and 2441 of the Masinga/Kangundo Adjudication Section. He sought certiorari to quash the DCC's decision, mandamus to compel its alignment with the directions in Machakos High Court Judicial Review Case No. 112 of 2017, prohibition against registration of the parcels in favour of the interested party, and that leave operate as a stay. He explained the delay by claiming he was not notified of the judgment. The respondents and the interested party opposed, disputing the delivery date and contending the motion was defective and time-barred. The court identified two issues: whether the proceedings were statutorily barred and whether the application was merited. Relying on binding Court of Appeal authority, it held that 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 cannot be extended, and that a contrary ELC decision relied on by the applicant was merely persuasive. Finding the motion time-barred, the court found it unnecessary to address the second issue, dismissed the motion with costs to the respondents and the interested party, and marked the file as closed.

Key legal issues

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Whether the court can extend the statutory six-month period for applying for leave to seek certiorari

Holding

The six-month limitation in Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the CPR is mandatory and cannot be extended by the court; time limited by statute cannot be extended under the Civil Procedure Rules

Reasoning

The court applied binding Court of Appeal authority (Republic v Kenya National Highways Authority ex-parte Amica Business Solutions; Wilson Osolo v John Ojiambo Ochola) holding Order 53 Rule 2 mandatory. The decision relied on by the applicant (Kurui v County Adjudication Officer) was persuasive only. The doctrine of stare decisis required the court to follow the binding precedents, leaving no discretion to enlarge time.

p. 5

Legal principles established

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  • Upon lapse of six months from the date of delivery of a judgment, order, decree, conviction or other proceeding, the court is constrained from granting leave for judicial review to quash it

Court orders

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  1. 1.The notice of motion dated 14/08/2024 is dismissed with costs to the respondents and the interested party
  2. 2.The file is effectively marked as closed

Authorities

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Legislation

  • Law Reform ActSection 9(2) and (3)
  • Civil Procedure RulesOrder 53 Rule 1(2) and Rule 2
  • Limitation of Actions ActCap 22
  • Constitution of Kenya2010

Cases cited (6)

  • Republic v The Cabinet Secretary, Ministry of Lands and Housing ex-parte Musyimi Kilonzo
    HC(JR) 112 of 2017
  • Kurui & another v County Adjudication Officer, Elgeyo Marakwet County & another; Kisang (Interested Party)
    [2024] KEELC 1610 (KLR)
  • Republic v Kenya National Highways Authority & 2 others ex-parte Amica Business Solutions Limited
    [2016] eKLR
  • Goldenberg Affair Ex-parte Hon. Mwalulu and Others
    HCMA No. 1279 of 2004 [2004] eKLR
  • Republic v The Commissioner of Lands Ex-parte Lake Flowers Limited
    H.C. Misc. Application No. 1235 of 1998
  • Wilson Osolo v John Ojiambo Ochola & Another
    1995 eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules (judicial review leave jurisdiction)

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 Cabinet Secretary, Ministry of Lands and Housing & 2 others; Muthoka & another (Sued as the Administrator of the Estate of Mwangangi Muthoka) (Interested Party); Musyimi (Suing as the Administrator of the Estate of Musyimi Kilonzo) (Ex parte Applicant) (Environment and Land Miscellaneous Application E032 of 2024) [2025] KEELC 4654 (KLR)", Case Analysis (2025). Judicial Review Notice of Motion dated 14/08/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4654/eng@2025-06-24

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