REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA MISC. APP. NO. 1 OF 2013 REPUBLIC........................................................................APPLICANT VERSUS THE CHAIRMAN AMAGORO LAND DISPUTES TRIBUNAL.....................................RESPONDENT AND ALFRED IDIDI EKETON IDIDI ]..................EX-PARTE APPLICANTS VINCENT EPALE ETYANG ] AND ISAAC BENARD OTOME ODUYA.....................INTERESTED PARTY RULING 1. ALFRED IDIDI EKETON IDIDI and VINCENT EPALE ETYANG, hereinafter referred to as the 1st and 2nd Applicants, filed the Notice of Motion dated 10th July, 2014 seeking for ‘’Leave to file substantive application out of time.’’ The application is supported by the affidavit of the 1st Applicant sworn on 10th July, 2014 in which he depones to the following among others; a. That they had filed an application dated 3rd January, 2013 for leave to file substantive application of judicial review in Busia Misc. Application No. 1 of 2013. b. That on the 4th December, 2013, this court granted them leave and directed that the substantive application be filed and served in 21 days. c. That the Applicants instructed counsel to file the substantive application on 4th December, 2013 but the counsel has failed to do so and hence this application. 2. The application is opposed by Isaac Benard Otome Oduya, hereinafter referred to as the Interested Party, through the grounds of opposition dated 19th May, 2015. Among the grounds set out is that the
page 1 of 2
application is an abuse of the courts processes and that the Applicants did not offer sufficient explanation for not filing the application within the time given in the order of 4th December, 2013. 3. The issue for determination is whether the court has the discretion to extend time for filing judicial review proceedings. The court has considered the supporting affidavit, the grounds of opposition and the parties submissions and come to the following conclusions: a. That applications for leave to file judicial review proceedings are guided by Order 53 of the Civil Procedure Rules. Judicial Review proceedings are a special jurisdiction as opposed to criminal or civil jurisdiction. b. That superior courts have in many decisions held that the court has no jurisdiction to extend the time set for applying for leave to file for judicial review orders. [see Myeri H.C.C. Misc. App. No. 90 of 2003, MOTOKAA NATHAUTHO -versus- JOSEPH NJERU & 3 OTHERS, JAMES GITHINJI KIARA –VS- WILLIAM WACHIRA MWANIKI [2005]eKLR, KIMANZI MBOO – VS- DAVID MULWA C.A.C.A. NO. 233 OF 1996, and WILSON OSOLO –VS- JOHN OJIAMBO & Another [1991] eKLR] c. That the court lacks jurisdiction to extend the time to file for judicial review order after expiry of the 21 days granted to the Applicants on 4th December, 2013. [See Republic -vs- The Chairman, Amagoro Land Disputes Tribunal & Another, Exparte Applicant Paul Mafwabi Wanyama, Kisumu C.A.C.A No. 41 of 2013]. 4. That having found as above, the court finds the application dated 10th July, 2014 is without merit and is dismissed with costs to the Interested Party. It is so ordered. S.M. KIBUNJA, JUDGE. DATED AND DELIVERED ON…2ND……DAY OF…JULY,…………2015. IN THE PRESENCE OF; 1ST APPLICANT……………PRESENT………………………………….. 2ND APPLICANT……………PRESENT………………………………… INTERESTED PARTY…… PRESENT………………………………… JUDGE.
page 2 of 2