Republic v Msambweni Community Development Agreement Committee

RULING 1. This court on 13th August 2024 in High Court Judicial Review Miscellaneous Application No. E004 of 2024 granted leave to the ex-parte applicant to file within 21 days, a substantive motion for judicial review proceedings seeking an order of certiorari against the respondent, Msambweni Community Development Agreement Committee (MCDAC) to quash the decision made on 7/8/2024 by the respondent removing the ex-parte applicant as the chairman of the committee. The leave granted was also directed to operate as stay of the impugned decision of the respondent made on 7/8/2024. The court also directed that the respondents had 14 days from the date of service to respond to the motion. 2. The ex-parte applicant filed the substantive notice of motion dated 1st September 2024 on 12th September, 2024, seven days after the due date as directed by the court and through a different file HC JR Misc. Application No. E005 of 2024, the present file. The 1st Interested Party (IP) has raised an issue about this aspect of the application, the ex-parte applicant filing the substantive motion in a different file from the one in which the leave was granted, contending that this was not procedural and it effectively means that the ex-parte applicant never filed the substantive notice of motion as directed by the court. 3. The substantive notice of motion is based on grounds set out on the face thereof and the verifying affidavit of Jamal Abdallah Kidyogo sworn on 1st September 2024. They are that the applicant is the chairman of the Msambweni Community Development Agreement Committee (CDAC), created under the Mining Act (Community Development Agreement Regulations, 2017 which is mandated to liaise with the mining licence holder to prepare an agreement that would further the betterment of the community through educational scholarships, building social amenities, providing employment opportunities for people in the community, women and youth empowerment, sports among others. The Msambweni CDAC has an agreement dated 21st May 2021 with Base Titanium, the 1st Interested Party, a mining company based in Kwale County and the agreement is in force for the productive life of the mine. 4. The applicant deposes that he was nominated and elected in the year 2023 as chairman of the Msambweni CDAC and subsequently published in the gazette on 19th February 2024 by the Cabinet Secretary for Mining, Blue Economy and Maritime Affairs vide Gazette Notice No. 3231 in Kenya Gazette Vol. CXXVI – No. 34 of 22nd March 2024. I have looked at the Mining (Community Development Agreement) Regulations and the gazette notice and I note that the ex-parte applicant was published in the gazette under paragraph (g) of section 7 of the Regulations as a representative elected by civil society organizations working in the area of extractives in the County. 5. It is the ex-parte applicant’s case that the respondent made a decision on 7th August, 2024 to remove the ex-parte applicant as the chairman through a vote of no confidence hence causing the ex-parte applicant to file the application for judicial review to quash that decision by way of an order of certiorari. It is the ex-parte applicant’s contention that the said decision by the respondent was ultra vires and outside the Committee’s jurisdiction as it is in excess of its powers and/or authority in that: a. The standing orders which form the constitution of the respondent do not provide for a mechanism for removal from office of the chairperson or any other member. b. The decision making committee constituted members who were not gazette by the Cabinet Secretary for Mining, Blue Economy and Maritime Affairs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 2

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6. c. The Committee failed to follow due procedure in calling for the meeting. d. The Committee lacked the capacity to make any decision without the chairperson who is the ex-parte applicant Further that the respondent breached the rules of natural justice in that: a. There was no prior disclosure of the nature of the charges the ex-parte applicant was to face before the respondent and he was ambushed with the decision. b. The Committee was not impartial as it was constituted of members who had not been gazette by the Cabinet Secretary for Mining, Blue Economy and Maritime Affairs. c. The meeting was presided by a non-gazetted member who purported to act as the chairman. d. The ex-parte applicant was not notified of who his accusers were nor who had nominated the members constituting the Committee that heard his case. e. The Members of the Committee had prior knowledge of the charges facing the applicant hence they had already formed an opinion and therefore they were not impartial arbiters. f. The committee did not serve the ex-parte applicant with written findings and/or verdict. g. The ex-parte applicant was not given an oral hearing before the Committee and hence he was condemned unheard. 7. The ex-parte applicant contends that for the foregoing reasons, the decision of the Committee made on 7th August 2024 is null and void ab initio and ought to be quashed by this court. 8. On 4th October 2024, the respondent opposed the application through a replying affidavit sworn by Rose Nzisa Kyalo a member of the Community Development Agreement Committee - Msambweni and the Secretary to the Committee. 9. Among the grounds raised in opposing the motion were that the ex-parte applicant had failed to attach to his application the order and or decision that is being challenged which requirement was mandatory under the Law Reform Act (Cap. 26) Laws of Kenya and the Civil Procedure Rules under which the application was filed. 10. Secondly, that the application was premature and ought not to have been filed before the internal dispute resolution mechanisms as provided for under the Community Development Agreement had been exhausted. 11. That sufficient notice of the agenda for the meeting was disclosed to the ex-parte applicant through the common WhatsApp group in July 2024 in which the ex-parte applicant is the group administrator and he had due notice of the meeting and agenda as acknowledged by him at paragraph 7 and 14 of his verifying affidavit. 12. Further that the ex-parte applicant as chairman of the CDAC had acted in breach of the provisions of the CDA with regard to provision of goods and services by illegally and without authority and approval of the members of the CDAC made several payments directly to himself and companies associated with him and his proxies for provision of goods and services that had never been agreed upon nor deliberated by members of the respondent and that when called upon during meetings he was unable to explain himself to members over the allegations. There were cheques annexed to the replying affidavit written in the ex-parte applicant’s name to support that averment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 3

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13. Further that the ex-parte applicant had allegedly made payments to service providers of internet and CCTV cameras and to an audit firm which goods and services were never provided and or installed and neither was the audit report ever furnished to the members. Annexed to the supporting affidavit are copies of cheques allegedly made to service providers for services that were never rendered. 14. That as a result of the foregoing, the respondent found that the ex-parte applicant was grossly abusing his position as the chairperson of the committee and defrauding funds meant for public use and by virtue of holding that position by being elected by the members and having failed to explain the reasons for the payments to himself and service providers, the members voted to have him removed from that position. The respondent annexed to the replying affidavit copies of the minutes of the meeting held on 1st August 2024 and not 7th August 2024 as pleaded by the ex-parte applicant. 15. The respondent went on to state that the ex-parte applicant was present during the said meeting and he was accorded an opportunity to defend himself but failed to do so. That he signed for the meeting confirming his attendance contrary to his averments in the verifying affidavit. 16. It is the respondent’s position that the decision by the CDAC was sound, regular, procedural and should not be set aside. 17. The 1st Interested Party, Base Titanium Limited responded to the application through a notice of preliminary objection dated 11th October 2024 based on two grounds being that the substantive notice of motion had been filed outside the 21 days period granted by this court and as such the application offends Order 53 Rule 11 of the Civil Procedure Rules and the order of this court. Secondly, that the party against whom the application was filed lacks capacity to sue or be sued as it is not a legal entity. 18. On 16th October 2024 the respondent filed a notice of preliminary objection on grounds that the notice of motion by the ex-parte applicant dated 1st September 2024 is fatally defective, null and void ab initio since the application offends the mandatory provisions of Order 53 of the Civil Procedure Rules Laws of Kenya and that the suit was filed in bad faith and it should be dismissed with costs. 19. The ex-parte applicant responded to the two notices of preliminary objection through a further affidavit sworn on 28/10/2024 and at the same time filed a notice of motion dated 28/10 2024, seeking extension of time to validate the substantive Notice of Motion dated 1/9/2024 and filed on 12/9/2024 and for the court to have it deemed as duly filed and served. The same is supported by an affidavit sworn on 28/10/2024 by the ex-parte applicant Jamal Abdallah Kidyogo. 20. The grounds in support of this application as expounded in the supporting affidavit are that upon being granted leave on 13/8/2024 to file the substantive motion within 21 days, the ex-parte applicant delayed by about one week and filed the motion on 12/9/2024. He blamed the delay on the court’s efiling system. He deposes that there was a system outage which affected filing of pleadings and court processes during the time within which he was required to file the substantive notice of motion and the same was filed on 12/9/2024 as soon as the system was up. He deposes further that the delay was not inordinate and should not be visited upon the ex-parte applicant and no prejudice or damages will be occasioned upon the other parties. 21. The 1st Interested Party, Base Titanium Ltd, in response to the application for extension of time, filed a chamber summons application dated 28/11/2024, seeking for an order that Jamal Abdallah Kidyogo, the ex-parte applicant and the deponent of the supporting affidavit sworn on 28/10/2024 in support of the application for extension of time be produced in court for cross-examination on the contents of his affidavit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 4

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22. This court, in a ruling delivered on 4th June 2025 found that the chamber summons could not be determined alone as the decision would inevitably touch on the substantive notice of motion, the two notices of preliminary objection and the notice of motion seeking extension of time. The court therefore directed that the issues in the two notices of motion, the preliminary objections and the chamber summons be determined concurrently in one ruling. They are the subjects of the present ruling. 23. The two notices of preliminary objection by the respondent and the 1st IP and the application by the ex-parte applicant for extension of time were argued concurrently by way of written submissions. 24. In his submissions, the ex-parte applicant raised three issues for determination, these are: i. Whether the Respondent acted in excess of its powers. ii. Whether the Applicant is entitled to the orders sought. iii. Whether the Application is fatally defective. 25. The ex-parte applicant submits with respect to the notices of preliminary objection that the Interested Party and the Respondent did not move the court at the appropriate time when the application was accepted by court and orders issued. That they did not participate in the application at the ex-parte stage and that they are therefore barred from raising issues emanating therefrom. That it is too late in the day to raise issues as they never participated in the said proceedings. 26. This submission would appear to me out of place because as the title of the application at that stage indicates, it is ex-parte, meaning that the respondent is not called upon to answer to anything or participate at that stage because the respondent or any other party is not required to be served at that stage unless ordered by the court. In this case, the court ordered service upon the respondent before issuing leave and the orders of stay only. The court then gave directions that the ex-parte applicant do file the substantive notice of motion within 21 days. It is this substantive notice of motion that is being challenged for being filed out of time as directed by the court. 27. It is apparent that by filing the substantive notice of motion on 12th September 2024, the same was beyond the 21 days leave period granted by the court. The ex-parte applicant’s response is that a system outage caused him the delay as he was unable to access the system in time until 12th September 2024, when the system was up again and he filed the substantive motion. Learned counsel for the ex-parte applicant Emmanuel Kihira Mwangi, in his affidavit sworn on 5th January 2025 has outlined efforts he made to validate the ex-parte applicant’s contention that he was delayed by the judiciary filing system outage. He deposes that there was a valid notice of system outage that prevented the ex-parte applicant from filing the substantive notice of motion in time. On the other hand, the respondent deposes that there was no such system outage and correspondence with Hon. Elizabeth Tanui Registrar Automation confirmed the same. 28. Learned counsel for the ex-parte applicant submits that the law should be interpreted without regard to technicalities. He has cited the case of Republic v Public Procurement Administrative Review Board Ex-parte Syner- Chemie Limited [2016] KEHC 2718 (KLR) where the court that: “ … in Gogardhan V Barsati AIR 1972 ALL 246, dealing with similar provision to Order 50 Rule 6 of Civil Procedure Rule, it was held that: “ Even in cases where an order is made by the court for doing a thing within a particular time and order further provide that the application, a suit or appeal shall stand dismissed, if the thing is not done, within the time fixed, 4 the court has jurisdiction, if sufficient cause is made out, to extend the time even https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 5

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when the application for extension of time is made after the expiry of the time fixed. It is not the application for grant of further time, whether made before or after the expiry of the rime granted, which confers jurisdiction on the court.” 29. The respondent did not file submissions on the notices of preliminary objection, the notice of motion for extension of time or the chamber summons application for cross-examination of the ex-parte applicant. 30. In its submissions on the application by the ex-parte applicant for extension of time, the preliminary objections and application by the IP for cross-examination of the ex-parte applicant, the IP has raised one issue for determination, whether this has power to grant the application in the terms sought by the ex-parte applicant, or at all. 31. The IP has raised various issues in its submissions as follows. First, that the ex-parte applicant’s application for extension of time refers to an application dated 1st November 2024 when in fact there is no such an application on the court’s record. The application on the court record for which extension of time is being sought is the one dated 1st September 2024. I think and find that to be a typographical error and we should not spend much time on that aspect which I consider a non-issue because, indeed the application for which time is being sought is on record and is dated 1st September 2024. 32. The other issue is that, instead of filing the substantive application in the file in which leave had been sought and granted, that is JR Misc. Application No. E004 of 2024, the ex-parte applicant went ahead and filed the substantive motion in a fresh file JR Misc. Application No. E005 of 2024, the present file. The ex-parte applicant did not respond to this issue. I will not consider that issue at the moment but proceed to the issue of extension of time. 33. The IP submits further, that there is nothing to extend, as by the terms of the court orders of 13th August 2024, the orders lapsed on 3rd September 2024. In that case, these proceedings having been filed outside of the court case in which the leave was granted and secondly, out of the stipulated time, are a double nullity. 34. Learned counsel submits that Order 51 Rule 3(1) – I believe he meant Order 53 Rule 3 - is couched in mandatory terms and provides that where leave is granted, to apply for an order of certiorari, the substantive motion must be filed within 21 days of the grant of leave. That this position is enunciated in several cases as cited by the IP that is: a. Wilson Osolo v John Ojiambo Ochola v the Attorney General CA No. 6 Nairobi of 1995; b. Miscellaneous Civil Case No. 1570 of 2004 Republic v Communications Commissions of Kenya and 2 others [2005] eKLR; c. Republic v The Chairman Amagoro Land Disputes Tribunal and Others Ex Parte Alfred Ididi [2015] KЕНС3816 (KLR); d. Republic v Kahindi Nyafula & 3 Others, Ex-parte Kilifi South East Farmers' Cooperative [2014] eKLR; e. Republic v District Land Adjudication Officer Meru South/Mara Sub counties & County Government of Tharaka Nithi Ex-parte Gladys Kainda Mbae & Another [2018] eKLR; f. Republic v Council of Legal Education & Another Ex-parte Sabiha Kassamia & Another [2018] eKLR; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 6

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g. Republic v Public Procurement Administrative Board & Another; Mer Security & Communications System Ltd/Megason Electronic & Control 1978 (JV) & Another -3- 25. 26. 27. 28. 29. 30. 31. (Interested Parties); Ex-parte Magal Security Systems Ltd/Firefox Kenya Limited (JV) [2019] eKLR. 35. Finally, that the 2021 agreement pursuant to which the respondent was constituted, being the Community Development Agreement between Msambweni Sub-County Community in Kwale County and Base Titanium, the IP herein has since lapsed. 36. The first issue to consider are the preliminary objections filed by the respondent and the 1st Interested Party, Base Titanium Ltd on grounds that the substantive notice of motion is incompetent or fatally defective for being filed after the 21 days’ period as directed by the court at the leave stage. The two notices of preliminary objection pray for the same order, the striking out of the substantive notice of motion for being filed outside the time granted by the court at the time leave was sought. If the prayer is valid and is sustained by this court, there would be no reason to proceed into the other issues raised in the chamber summons and notices of motion, including the substance of the substantive notice of motion. 37. It is not disputed that the preliminary objection by both the respondent and the 1st IP is on a pure point of law, that is, failure to abide by the provisions of Order 53 Rule 3 of the Civil Procedure Rules, and therefore satisfies the requirements stipulated in the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 on what constitutes a preliminary objection where the Court stated that: “ ... 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. 38. In that case, Sir Charles Newbold P. stated: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure 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 has to be ascertained or if what is sought is the exercise of judicial discretion.” 39. A preliminary objection if well taken and sustained by the court can finally dispose of the matter. In the case of Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR) Kiage JA stated thus: “ The Preliminary Objection that had been raised before the court below was a jurisdictional one. It raised a statutory bar to the bringing of the claim by the respondents herein outside of the three year cut-off imposed by Section 90 of the Employment Act. Such a plea, if upheld, would have been dispositive of the claim and therefore constituted “a pure point of law” in the language employed by Sir Charles Newbold P, in the oft-cited case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors LTD [1969] EA 696. It was therefore properly taken.” 40. Order 53 Rule 3 (1) of the Civil Procedure Rules, upon which the preliminary objection is based provides that when leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 7

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there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing. 41. It is also not disputed that the leave was granted on 13th August 2024 and the substantive notice of motion was filed by the ex-parte applicant on 12th September 2024. 42. In the case of Republic v Director of Public Prosecution & Ethics and Anti-Corruption Commission Ex Parte Chamanlal Vrajlal Kamani, Deepak Chamanlal Kamani & Rashmi Chamanlal Kamani [2015] KEHC 7666 (KLR), the High Court, Odunga, J. (as he then was, while commending on the nature of JR proceedings observed that: “ Judicial review jurisdiction, it has been held, is a special jurisdiction which is neither civil nor criminal and the Civil Procedure Act does not apply. It is governed by sections 8 and 9 of the Law Reform Act being the substantive law and Order 53 of the Civil Procedure Rules being the procedural law.” 43. I am persuaded to follow this decision. Therefore, the submission by learned counsel for the ex-parte applicant that the failure to follow the order of the court as made at the leave stage is a mere procedural technicality or that time can be extended even after the substantive motion was filed cannot hold here. It is applicable under the other applications under the CPR Rules but the JR procedure is different. 44. In the present case, there are three issues here to be considered for the disposal of the application for extension of time and the preliminary objections. 45. First, either there was a system outage for the period of one week in which the ex-parte applicant was required to file the substantive motion or there was not. Learned counsel for the ex-parte applicant in his affidavit deposes that he has been unable to get a proper response to his e-mails sent to three judiciary officials through their e-mail addresses as provided to him by the ICT officer based in Mombasa who allegedly posted the message about the system outage. The three judiciary officials from headquarters are Hon. Elizabeth Tanui, the Registrar, ICT, Mr. Stephen Ikileng and Mr. Josphat Karanja. None of them had responded to his message by the time he was filing his affidavit yet for the inquiry made by the 1st Interested Party, they had been responded to almost immediately. That is quite unfortunate. 46. The reasons why this court could not proceed with the application for cross-examination of the exparte applicant on his supporting affidavit alleging system outage were that first, as submitted by learned counsel for the IP, there are directions issued on how parties should proceed to file urgent applications whenever there is a system outage on the Judiciary e-filing system so that they are not delayed from filing their documents. Part of these directions are contained in the Judiciary Public Notice exhibited by the ex-parte applicant on his further affidavit sworn on 28th October 2024 as J 1. It states clearly that for time bound pleadings the same should be forwarded to the respective court stations’ e-mail addresses and copy them to the e-mail address provided in the notice. There is no indication that these procedures were followed by the ex-parte applicant to have his documents filed in time. 47. These proceedings were filed at the Kwale High Court and not the Mombasa High Court. There is no indication that inquiries on the alleged system outage and for assistance were made at the Kwale Court on the alleged notice issued by the Mombasa ICT officer. That notice, issuing from a particular court officer and not region or national office could therefore only, if at all, from the Mombasa ICT officer could only affect the parties filing documents at the Mombasa Court. 48. The case for the ex-parte applicant therefore remains that the substantive notice of motion was not filed within the 21 days as directed by the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 8

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49. Secondly, having delayed in filing the substantive notice of motion, the ex-parte applicant did not first seek leave of the court before filing it. He only filed the notice of motion seeking leave for extension of time after the respondent and the 1st IP had filed their notices of preliminary objection to the substantive notice of motion. 50. Thirdly, the position in Kenya is that there is no extension of time after leave has been granted to file JR proceedings due to their special nature. Consequently, even if the application for extension of time had been filed before the substantive notice of motion the same would not be successful. It follows that even the chamber summons filed by the ex-parte applicant and now under consideration herein cannot succeed for that reason. 51. The High Court, Mativo, J., (as he then was), had occasion to deal with this very issue arising out of a different application by almost the same parties as the parties in this case, in the case of Republic v Attorney General & 2 others; Hassan (Exparte); Mvurya & 20 others (Interested Parties) [2021] KEHC 239 (KLR) where the learned Judge reviewed several decisions on the issue and arrived at the decision that in a JR application there is no provision for extension of time to file substantive motion where one was not filed within the stipulated timelines. The learned Judge proceeded thus: “ As stated above, the applicant’s application dated 1st September 2020 was filed outside the 14 days directed by the court and without courts leave. The leave granted by the court had lapsed with the expiry of the 14 days. Even if the applicant had sought leave, its doubtful whether the omission was curable. Our superior courts have on numerous decisions held that under Order 53 of the Civil Procedure Rules, the court cannot grant extension of time. For example, in Wilson Osolo v John Ojiambo Ochola & Another1 the Court of Appeal held that "it was a mandatory requirement of order 53 Rule 3(1) of the Civil Procedure Rules then (and it is now again so) that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days ...there was no proper application before the Superior Court." {1996} eKLR. 1 Also relevant is Republic v Linda Wanjiku & 2 Others ex parte E.N. (Applying as father and next of friend of SK(Minor)2 in which the court observed that "..failure to comply with the order for leave on the time lines the substantive motion as filed is incompetent." Further, in the said case the court cited the Court of Appeal in United Housing Estate Limited v Nyals (Kenya) Ltd3 which stated that "what emerges from the decision of the Court of Appeal is that a party cannot unilaterally decide not to comply with the conditions attached to the exercise of discretion of the court… Non-compliance with court order cannot be a procedural technicality curable by application of Article 159 of the Constitution." {2017}eKLR. 2 Civil Application No. Nairobi 84 of 1996. 3 Also useful is Republic v Medical Laboratory Technologists Board ex parte Anastacia Ngithi Wahu & 177 Others4 in which the court held that the words "shall be made" in orders 53 Rule 3(1) of the Civil Procedure Rules 2010 demonstrate that the time lines are mandatory rules of procedure that ought to be strictly adhered to and Republic v Cabinet Secretary, Information Communication & Technology & Another ex parte Celestine Okuta & Others5 in which the court addressing a similar situation remarked that "the applicants https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 9

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expect the court to ignore directions of the court and treat their failure to comply with the courts directions as inconsequential." {2017}eKLR. 4 {2016}eKLR. 5 In R v Chairman, Amangoro Land Disputes Tribunal & Another ex parte Alfred Ididi Eketon Ididi & Another6 the court held that it had no discretion to extent time in Judicial Review proceedings while in Republic v Medical Laboratory Technicians and Technologists Board ex parte Edna Mwende Kavindu7 the court found that there was no competent application before it and struck it off for being filed out of time. In the same vein, the Court of Appeal in Wilson Osolo v John Ojiambo Ochola & Another8 expressed itself thus: {2015}eKLR. 6 {2017}eKLR. 7 {1995} eKLR. 8 “It can readily be seen that Order 53 Rule 2 (as it then stood) is derived verbatim from Section 9(3) of the Law Reform Act. Whilst the time limited for doing something under the civil Procedure Rules can be extended by an application under order 49 of the Civil Procedure Rules that procedure cannot be availed of for the extension of time limited by statute, in this case, the Law Reform Act”. There is no provision for extension of time to apply for such leave in the Limitation of Actions Act (cap 22, Laws of Kenya) which gives some limited right for extension of time to file suits after expiry of a limitation period. But this Act has no relevance here.’’ In Republic v Public Procurement Administrative Review Board ex parte Syner-Chemie9 the court observed that there are two schools of thought on the issue whether the court can extent time in Judicial Review proceedings. The first school of thought represented by the above cited decisions holds the view that no enlargement of time for filing of a substantive motion is envisaged in Order 53 of the Civil Procedure Rules. The second school of thought which supports the view that the court has jurisdiction to enlarge the period cites Articles 47 and 48 of the Constitution and the Fair Administrative Action Act. However, even if I were to be persuaded by the second school of thought, I also find that the applicant never sought extension of time. Republic vs Public Procurement Administrative Review Board ex parte Syner-Chemie {2016} eKLR. 9 Generally, our courts have adopted a strict interpretation of the provisions of Order 53 holding that the word shall in the said provision connotes a mandatory obligation, a position upheld by the Court Appeal in Ako v Special District Commissioner, Kisumu & Another10 which held that the prohibition is absolute and any other interpretation or view of the particular provision would be doing violence to the very clear provisions of sub-section (3) of Section 9 of the Law Reform Act.11 In Re an application by Gideon Waweru Gthunguri12 the colonial Supreme Court held that the said section imposes an absolute period of limitation.10Civil Appeal No. 27 of 1989, Nyarangi JA., Gachuhi JA., Kwach Ag. JA. 11 Supra. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 10

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12 {1962} 1 EA 520. Since the application was not filed within 14 days ordered by the court, there is no proper application before me. It follows that the applicant could not purport to properly file the application after the lapse of the 14 days without the leave of the court. The import of this is that the said application is not properly before this court and on this ground alone, the applicant’s application collapses. Flowing from the foregoing, it is my finding that the applicant failed to comply with a court order and filed the application dated 1st September 2020 out of time and without leave. The effect is that there is no competent application before this court for determination. The application dated 1st September 2020 is struck out with costs to the Respondents.” 52. I am persuaded to follow the above decision which succinctly restates the special place for JR proceedings in Kenya and find that the motion dated 1st September and filed in court on 12th September 2024 is incompetent for being filed outside the 21 days period as stipulated under the law and as directed by the court at the leave stage and is hereby struck out. 53. There will be no orders for costs noting that as submitted by the 1st IP the subject matter for which the respondent was created has since dissipated by the winding up of the operations of the 1st IP. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, TEAMS THIS 3RD DAY OF NOVEMBER 2025. ANDAYI W. F. JUDGE In the presence of: N/A for Ex-parte Applicant though counsel Mwangi Kihira’s name appears on the forum as present but he has not responded. Washallah (Ms) H/b for Mungai Kamau for the Respondent. Mwango (Ms) for the 1st Interested Party N/A for 2nd to 4th Interested Parties. Ummu Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18310/eng@2025-11-03 11

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