Republic v Cabinet Secretary-State Department of Land and Physical Planning & 2 others; Rowa (Ex parte); Ngonrome & 4 others (Interested Parties) (Judicial Review E005 of 2024) [2025] KEELC 6286 (KLR)
The bottom line
#A Kenyan court refused to reopen a missed judicial review deadline, ruling that blaming your lawyer requires solid proof and that settled issues cannot be argued twice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Ex Parte Applicant's application dated 24th June 2025 is merited
- 2.Who to bear the costs of the instant application
Key legal issues
#Whether the court can extend time for filing a substantive judicial review motion after leave lapsed
No. The court had already decided the extension-of-time issue in its ruling of 21st January 2025; it is functus officio and the matter is res judicata
The applicant had been granted leave on 6th May 2024 with 21 days to file the substantive motion; he filed out of time without leave and the motion was struck out. The subsequent preliminary objection ruling of 21st January 2025 conclusively determined the lack of leave/extension issue. That decision was never set aside; only an appeal or review lay. Re-extending time would resurrect a dead issue and is res judicata.
Whether the alleged mistake of counsel justified the indulgence sought
No. The allegation was unsubstantiated and an afterthought
Counsel who swore the supporting affidavit did not demonstrate an honest mistake; the record showed both party and advocate were inactive during the 21-day period and drew the documents after expiry. No supplementary affidavit or letter from the previous counsel owned to the mistake, and inaction by the client could not be attributed to counsel.
Whether there was inordinate delay in bringing the application
Yes; a five-month unexplained delay from 21st January 2025 to 24th June 2025 was prejudicial
The applicant offered no explanation for not moving the court promptly after the January 2025 ruling. The delay prejudiced the interested parties, who had filed their Bill of Costs to realise the fruits of their success.
Legal principles established
#- Not all mistakes of counsel are excusable; to avail a party they must be genuine, honest, not adverted to, and not prejudicial to the adverse party, and must not amount to professional negligence
- A court that has determined the issue of extension of time becomes functus officio on that issue, and re-litigating it is res judicata
- Under Order 53 Rules 2 and 3(1), leave for certiorari must be sought within six months and the substantive motion filed within twenty-one days of leave
Court orders
#- 1.The ex-parte applicant's Notice of Motion dated 24th June 2025 is dismissed
- 2.The ex-parte applicant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 48, 50 and 159 of the Constitution of Kenya, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 of the Civil Procedure Rules, 2010
Relief refused
#Extension of time to file and serve the substantive Notice of Motion and leave to file it out of time
The court had already determined the extension-of-time issue in its ruling of 21st January 2025 and is functus officio; the issue is res judicata; the alleged mistake of counsel was an unsubstantiated afterthought
Orders for maintenance of status quo/status quo ante pending hearing of the case
Fell with the dismissal of the application
Costs
The ex-parte applicant shall bear the costs of this application (costs follow the event, Section 27 of the Civil Procedure Act)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the applicants' application dated 24th June, 2025 is not merited. It is hereby dismissed.
It is trite that costs follow the event. Section 27 of the Civil Procedure Act is clear on this and needs no elaboration. Therefore, in line with this provision, the ex-parte applicant shall bear the costs of this application.
Such an issue having been decided by this Court, on its merits in relation to the preliminary objection raised earlier and determined is res judicata to that extent.
It is not enough for the new counsel to make blanket unsubstantiated allegations of mistake of counsel and get away with it.
the practice of learned counsel swearing the afidavits on behalf of their clients often disturbs courts. This should be the last resort for any counsel
Issues in the judgment
#The application is described as dated 24th June 2025 but in framing the issues the judgment refers to 'application dated 24th June, 2024'
Chamber Summons is described as filed on 3rd May 2024 but dated 16th April 2025, an apparent internal date inconsistency
Salat is cited as a Supreme Court decision but with a KECA (Court of Appeal) neutral citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary-State Department of Land and Physical Planning & 2 others; Rowa (Ex parte); Ngonrome & 4 others (Interested Parties) (Judicial Review E005 of 2024) [2025] KEELC 6286 (KLR)", Case Analysis (2025). Judicial Review Miscellaneous Application E005 of 2024 (related application dated 24th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6286/eng@2025-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.