Republic v Deputy County Commissioner Makueni Sub-County & 3 others; Kimanga

2. TAT leave do issue to the Applicant to apply for an order of mandamus directed to the 2nd Respondent compelling him/her to cancel the resultant subdivision of land number Okia/ Nzuuni/677 and Okia/Nzuuni/2260 and re-issue a single title to the Ex-parte Applicant forthwith. 3. That the costs of this application be paid by the Respondents and the Interested Party. 3. The application was supported by the statement of facts dated 11th December, 2024 and the verifying adavit of Anthony Kyalo Kimoli sworn on even date. 4. Subsequent to the ling of the application, the Interested Party led the Notice of preliminary objection dated 28th January, 2025 advancing the following grounds: a. That this judicial review application to challenge the decision of the Minister delivered on 05/09/2022 is time-barred as it has been led outside the statutory time limit prescribed by the law. b. That the present application ought to be dismissed with costs. 5. The Notice of Motion herein was also opposed through the replying adavit sworn by the Interested Party on 29th January, 2025. 6. The preliminary objection was disposed of by way of written submissions. 7. In the Interested Party’s submissions dated 17th April, 2025, Counsel contended that it was not in dispute that the Interested Party led Minister’s Appeal Case No. 491 of 1997 against the late Paul Kituku Ngovi who was represented by his son David in regards to land Parcel No. 677. It was further contended that the Minister’s appeal was allowed vide the judgment delivered on 5/9/2022 and that the 3rd Respondent proceeded to implement the judgment by subdividing land into two portions namely Parcel No. Okia/Nzuuni/677 and Parcel No. Okia/Nzuuni/2260. Counsel added that the latter parcel of land was registered in the name of the Interested Party. 8. Counsel proceeded to submit that the jurisdiction of judicial review proceedings is governed by Sections 8 and 9 of the Law Reform Act as the substantive law and Order 53 of the Civil Procedure Rules which outlines the procedural law. 9. It was submitted that a person needs to le an application seeking leave to apply for orders of certiorari within a period of six months of the decision. Counsel reiterated that the decision which has been sought to be quashed is dated 5th September, 2022 and that the application herein was led on 11th December, 2024. Counsel argued that the application is out of time since there is no statutory provision which allows for the extension of time when ling a judicial review application. Reliance was placed on the following authorities:i. Wilson Osolo v John Ojiambo Ochola [1996] eKLR ii. Republic v Chairman Amagoro Land Dispute Tribunal & another Ex-parte Paul Mafwabi Wanyama [2014] eKLR 10. The Ex-parte Applicant led his submissions dated 2nd April, 2025. On his behalf, Counsel argued that the position regarding a decision which has been made without jurisdiction or outside the law had changed and that such a decision is regarded as a nullity. That timelines do not apply and hence the application to quash a decision can be led at any time. 11. To buttress this submission, Counsel relied on the following case law: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18694/eng@2025-07-31 2

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12. i. Stephen Kibowen v Chief Magistrates Court Nakuru & 2 others [2017] eKLR ii. Republic v Judicial Commission of Inquiry into the Goldenberg Aair & 3 others Ex-parte Malulu & 3 others [2004] eKLR The law on preliminary objections is settled. A preliminary objection must be on a pure point of law. Justice Law coined an apt description of what constitutes a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 (at page 700) wherein the learned judge held as follows: “ In so far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 13. In the same case, Sir Charles Newbold, P. held as follows: “ The rst matter relates to the increasing practice of raising points which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.” 14. In Oraro v Mbaja [2005] eKLR, J.B. Ojwang J. (as he then was) described it as follows: “ I think the principle is abundantly clear. “A Preliminary Objection” correctly understood is now well identied as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it hears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.” 15. The Interested Party has sought that the judicial review application herein be dismissed with costs on the basis that it was led outside the statutory time limit prescribed by the law. 16. The sole issue for determination is as follows: i) 17. Whether the application herein is time-barred pursuant to the provisions of the law? The application for leave to apply for judicial review orders of certiorari and mandamus was led on 10th December, 2024 pursuant to the provisions of Section 9 of the Law Reform Act and Order 53 Rule 1 of the Civil Procedure Rules. Sections 9(2) and 9(3) of the Law Reform Act provide as follows: (2) Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specied proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18694/eng@2025-07-31 3

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(3) In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired. 18. The above provisions outline a mandatory statutory period of six (6) months with which an application for judicial review can be made under the regime of the Law Reform Act. A statutory time limitation cannot be enlarged by this court under the provisions of the Civil Procedure Rules, 2010 because that is outside discretion of this court under its inherent jurisdiction. 19. The decision which the Ex-parte Applicant has sought to challenge was made by the 1st Respondent on 5th September, 2022. The application for leave is dated 10th December, 2024. There is a lapse of approximately twenty-seven (27) months between the date of the decision and the date of the leave application. The leave application is clearly caught by the statutory time limitation. 20. In Odinga and others v Nairobi City Council [1990–1994] 1 EA 482, the court aptly held as follows: “ An application for judicial review, may it be for an order of mandamus, prohibition or certiorari should be made promptly and in any event within a maximum period of six months from the date when the ground for the application arose. The plaintis’ application was made after a lapse of 14 months since the ground for the application arose and was therefore time barred. The Rules of Court made under an Act cannot defeat or override the clear provisions of the Act. An Act of Parliament cannot be amended by subsidiary legislation. Thus the part of Order LIII, rule 2 as amended by Legal Notice number 164 of 1992 which read “unless the High Court considers that there is good reason for extending the period within which the application shall be made” was ultra vires section 9(2) of the Law Reform Act (Chapter 26).” 21. A similar position was taken by the court in Republic v Council of Legal Education & another Ex parte Sabiha Kassamia & another [2018] eKLR, where Mativo J. (as he then was) observed as follows:“ 29. The ex parte applicants invoked sections 8 and 9 of the Law Reform Act in their application, and the provisions of the Civil Procedure Rules. They cannot now turn around and claim that the same provisions they seek to invoke are not applicable in the circumstances of their case. Further, the application before me is governed by the same provisions of the law. It is not a matter of discretion. Discretion does not apply where the statute is clear. In any event, even if the law had granted a discretion in the matter before me, the applicants have not demonstrated any basis for the Court to exercise its discretion in their favour. Delay, no matter how short must be accounted for. 30. It is also important to point out that the provisions of order 50 Rule 6 of the Civil Procedure Rules, 2010 which grant the Court power to enlarge time cannot override the express provisions the Statute, namely, section 9 (3) of the Law Reform Act. In this regard, I nd useful guidance in the authorities cited by Mr. Oduor, namely, Re an application by Gideon Waweru Githunguri https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18694/eng@2025-07-31 4

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[1962] 1 EA 520 whereby the colonial Supreme Court held that the said section imposes an absolute period of limitation… 31. In view of my conclusions herein above, and my nding that section 9 (3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, 2010 are couched in mandatory terms, I nd and hold that the preliminary objection succeeds.” 22. In view of the express provisions of Section 9 of the Law Reform Act, it is clear that the judicial review proceedings herein as led by the Ex-parte Applicant are a nullity for non-compliance with mandatory statutory time limitations. 23. The Notice of Motion dated 11th December, 2024 is dismissed with costs. HON. E. O. OBAGA JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2025. In the presence of: Mr. Muumbi for Exparte Applicant. Mr. Kuria for Ms. Lungu for Respondent. Ms. Kyalo for Interested Party. Court assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18694/eng@2025-07-31 5

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