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ELCDismissedJudicial Review Application (Notice of Motion) dated 24th February 2023

Woche (Suing as the Legal Administrator of the Estate of Woche Imala Deceased) v Senior Resident Magistrate’s Court Moyale; Sode (Interested Party) (Environment and Land Judicial Review Case E001 of 2023) [2025] KEELC 5747 (KLR)

Environment and Land Court of Kenya
31 July 2025
4,193 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a 2023 attempt to overturn a 2008 land judgment because the case was filed without required permission and far too late.

What this practically means

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Executive summary

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The ex-parte applicant, Abdi Woche Imala, moved the Environment and Land Court at Isiolo by a notice of motion dated 24th February 2023 seeking an order of certiorari to quash the judgment and orders of the Senior Resident Magistrate's Court at Moyale in S.R.M.C. No. 2 of 2008 (Adan Chula vs Woche Imala) delivered on 30th April 2008. He argued that the subordinate court lacked jurisdiction over land matters before the 2010 Constitution, that an appeal (Milimani HCCA 125 of 2009) was frustrated, and that extension of time for filing the judicial review should be granted. The respondent court did not participate. The interested party, Adan Chula, opposed, contending the applicant lacked legal authority (an affidavit attributed to the deceased father post-dated his death), that the application sought a merit review unavailable under sections 8 and 9 of the Law Reform Act and Order 53, that the magistrates' court had jurisdiction under section 159 of the Registered Land Act, and that the application was filed after more than 16 years' inordinate delay. The court framed three issues: competence, jurisdiction to extend time, and whether certiorari should issue. It held the motion was filed without leave under Order 53 rule 1 and was therefore incompetent and a nullity; that no extension of time is available under Order 53 and the prayer was unpleaded; and that, in any event, the subordinate court had jurisdiction over the land dispute subject to pecuniary limits, which the applicant did not contend were exceeded. The notice of motion was dismissed with costs to the interested party, to be agreed or taxed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the application beforehand is competent or otherwise
  2. 2.whether the court is seized of jurisdiction to extend time for filing judicial review proceedings under the provisions of order 53 of the civil procedure rules
  3. 3.whether the order of certiorari ought to issue or otherwise

Key legal issues

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01

Competence of the notice of motion filed without leave

Holding

The application is incompetent, irredeemably bad and a nullity because leave to apply for judicial review was never sought or obtained.

Reasoning

Under Order 53 rule 1, an applicant must first obtain leave before filing the substantive notice of motion. The applicant filed a chamber summons for leave but never pursued it, and no record shows it was heard or granted. Without leave, the substantive motion dated 24th February 2023 is legally untenable and a nullity from the onset.

p. 5
02

Jurisdiction to extend time under Order 53

Holding

The court has no jurisdiction to extend the six-month period for filing certiorari under Order 53; the prayer was also never pleaded.

Reasoning

Order 53 is not subject to Order 50 which regulates extension of time. The applicant's invocation of section 6(2) of the Fair Administrative Actions Act fails because the application was brought under sections 8 and 9 of the Law Reform Act and Order 53. Moreover, the extension prayer appears only in submissions, and litigants are bound by their pleadings.

p. 6
03

Whether the subordinate court had jurisdiction to entertain the land dispute

Holding

The magistrates' court had jurisdiction under section 159 of the Registered Land Act Cap 300, subject to pecuniary limits, which the applicant did not dispute was exceeded.

Reasoning

Section 159 of the now-repealed Registered Land Act vested jurisdiction in the Resident Magistrate's Court for suits relating to title to or possession of registered land where the value did not exceed the prescribed limit. The applicant did not contend the value exceeded the pecuniary jurisdiction in 2008, so the contention of want of jurisdiction was a misapprehension of the law.

p. 7

Legal principles established

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  • A notice of motion seeking certiorari filed without leave under Order 53 rule 1 is incompetent and a nullity.
  • An application for certiorari under sections 8 and 9 of the Law Reform Act read with Order 53 rule 2 must be filed within six months of the impugned decision, and no extension of time is available under Order 53.
  • Magistrates' courts had jurisdiction over land disputes registered under the Registered Land Act subject to pecuniary limits.
  • Litigants are bound by their pleadings; relief cannot be introduced through submissions.

Court orders

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  1. 1.The application dated 24th February 2023 be and is hereby dismissed.
  2. 2.Costs of the application be and are hereby awarded to the interested party.
  3. 3.The costs in terms of clause (II) shall be agreed upon and in default be taxed in the conventional manner.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Cap 26 and Order 53 of the Civil Procedure Rules

Relief refused

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Order of certiorari to quash the proceedings and orders in S.R.M.C. No. 2 of 2008 – Moyale issued on 30/4/2008

The notice of motion was filed without leave and is incompetent; and even if competent, the respondent had jurisdiction over the land dispute under section 159 of the Registered Land Act.

p. 7

Extension of time to lodge the judicial review proceedings

The prayer does not form part of the application and was only introduced via submissions; Order 53 does not permit extension of time where no express provision exists.

p. 6

Costs

Costs of the application awarded to the interested party, to be agreed and in default taxed in the conventional manner.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, there is no gainsaying that the subject application [notice of motion dated 24th February 2023] was filed without leave. Absent leave, the notice of motion application is incompetent and legally untenable.
p. 5competence of judicial review motion without leave
it is common ground that no application for extension of time to file for a judicial review can be entertained under the provisions of Order 53.
p. 6no extension of time under Order 53
I come to the conclusion that even if the application beforehand was competent [which is not the case], the applicant would still fail for failure to satisfy the statutory threshold for issuance of an order of certiorari.
p. 7threshold for certiorari not met
I. The application dated 24th February 2023 [though captured in the submissions as 24th February 2024] be and is hereby dismissed.
p. 8final orders - dismissal
II. Costs of the application be and are hereby awarded to the interested party.
p. 8final orders - costs

Issues in the judgment

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minor

The ex-parte applicant is named as Abdi Woche Imala (deponent) but the deceased father is referred to inconsistently as 'Woshe Imala' and 'Woche Imala' within the judgment.

minor

The final order misstates the application date, acknowledged on the face of the order.

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, "Woche (Suing as the Legal Administrator of the Estate of Woche Imala Deceased) v Senior Resident Magistrate’s Court Moyale; Sode (Interested Party) (Environment and Land Judicial Review Case E001 of 2023) [2025] KEELC 5747 (KLR)", Case Analysis (2025). Judicial Review Application (Notice of Motion) dated 24th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5747/eng@2025-07-31

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