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ELRCStruck OutJudicial Review Application (Exparte) filed 16th April 2016· [2018] KEELRC 892 (KLR)

Willis Okach Randiga v Attorney General [2018] KEELRC 892 (KLR)

Employment and Labour Relations Court
18 October 2018
760 words in judgment
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The bottom line

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Kenya's Employment Court struck out a former airman's 35-year-late claim over the 1982 coup, warning that unexplained delay will sink even serious rights cases.

What this practically means

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Executive summary

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The exparte applicant, a former Senior Private I in the Kenya Air Force, filed a judicial review application on 16th April 2016 seeking remedies for his dismissal and alleged human rights violations arising from the 1st August 1982 attempted coup. The court noted that the application gave no explanation why it was not filed alongside similar matters that had been litigated since 1992, and that neither the application, the supporting affidavit nor the witness statement contained any explanation for the delay of more than 35 years. Applying Article 159(2)(b) of the Constitution, that justice shall not be delayed, the court held that litigants must file suit at the earliest opportunity, since stale claims prejudice respondents' ability to avail witnesses and documentation. While acknowledging that courts had condoned late constitutional petitions arising from the Moi era, the court held that this condonation did not permit parties to sleep on their rights. Relying on James Kanyiita v Attorney General & Another, the court reiterated that although there is no limitation period for enforcing fundamental rights, inordinate delay is a relevant consideration. The court further held that the erstwhile constitution contemplated enforcement of fundamental rights only through constitutional petitions, and that judicial review applications under the Law Reform Act were subject to a six-month limitation period, rendering the application misconceived. The application was struck off for inordinate delay, with no order as to costs.

Key legal issues

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01

Inordinate and unexplained delay in filing the judicial review application

Holding

The application was struck out because no justification whatsoever was offered for filing 35 years after the cause of action

Reasoning

The court held that although courts accommodated petitions arising from the 1982 coup, that condonation did not create unlimited licence. Article 159(2)(b) requires that justice not be delayed. The applicant's application, affidavit and witness statement contained no explanation for the delay, leaving the respondent unable to avail witnesses and documentation, and creating injustice and prejudice if entertained.

p. 2
02

Whether judicial review was the proper vehicle for the human rights claims

Holding

The application was also misconceived because enforcement of fundamental rights under the erstwhile constitution was by constitutional petition, not judicial review

Reasoning

The court reasoned that the repealed constitution envisaged enforcement of fundamental rights and freedoms only by way of constitutional petitions, whereas judicial review applications under the Law Reform Act attracted a six-month limitation period. On both the delay and the wrong procedural vehicle, the application could not stand.

p. 2

Legal principles established

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  • A party seeking condonation of late filing must place facts before the court justifying the delay; assumption is no substitute for evidence
  • Justice shall not be delayed; litigants must file cases at the earliest opportunity, and delay prejudices respondents' ability to avail witnesses and documentation
  • Judicial review applications under the Law Reform Act must be brought within six months from the date the cause of action arose

Court orders

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  1. 1.The application is struck off for having been filed after inordinate delay
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Law Reform Act
  • Constitution of Kenya (repealed)Section 84

Cases cited (4)

  • Stanley Waweru Kariuki v Attorney General
    Petition 1370 of 2003
  • Harun Thungu Wakaba v Attorney General
    Nairobi Miscellaneous Application 1411 of 2004
  • Oduor Ongwen and 20 others v Attorney General
    Petition 777 of 2008
  • James Kanyiita v Attorney General & Another
    Nairobi Petition No. 180 of 2011
Jurisdiction invoked
Judicial review under the Law Reform Act; Article 159(2) of the Constitution guiding exercise of judicial authority

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, "Willis Okach Randiga v Attorney General [2018] KEELRC 892 (KLR)", Case Analysis (2018). Judicial Review Application (Exparte) filed 16th April 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/892/eng@2018-10-18

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