[2021] KEELC 288 (KLR)
The court found that the application for leave to apply for judicial review was filed within the statutory six-month period as required by Order 53 Rule 2 of the Civil Procedure Rules and the Law Reform Act. The notice of motion was subsequently filed within the 21 days prescribed by Order 53 rule 3(1). The...
Source-derived case information.
- Citation
- [2021] KEELC 288 (KLR)
- Parties
- Applicant: Gerald Nteere M’Archi; Respondent: The Land Adjudication Officer, Meru Central (Ruiri/Rwarera Adjudication Section); Interested Party: John Muriungu Arachi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 20 of 2018
- Procedural Posture
- Judicial Review Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Legal Topics
- Judicial Review, Statutory Time Limits, Land Adjudication, Leave to Apply, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerald Nteere M’Archi
Applicant
The Land Adjudication Officer, Meru Central (Ruiri/Rwarera Adjudication Section)
Respondent
John Muriungu Arachi
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application for certiorari was time-barred under the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules.
- 2 Whether the preliminary objection was properly raised regarding the statutory limitation period for judicial review.
- 3 Whether the court was functus officio on the issue of leave after granting it.
Ratio Decidendi
The court found that the application for leave to apply for judicial review was filed within the statutory six-month period as required by Order 53 Rule 2 of the Civil Procedure Rules and the Law Reform Act. The notice of motion was subsequently filed within the 21 days prescribed by Order 53 rule 3(1). The preliminary objection was based on an incorrect interpretation of the relevant limitation period, as the six-month rule applies to the application for leave, not the notice of motion. Furthermore, the interested party failed to follow the proper procedure for challenging the grant of leave, as established in case law. The court, having already granted leave and found the application...
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection dated 26.8.2020 is dismissed with costs.
- Parties are ordered to comply with Order 11 within 45 days from the date hereof.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
JUDICIAL REVIEW APPLCATION NO. 20 OF 2018
IN THE MATTER OF THE LAND CONSOLIDATION ACT CAP 283,
LAND ADJUCIATIONACT CAP 284LAWS OF KENYA,
LAND REGISTRATION ACT CAP 3 AND
LAND ACT CAP 6 LAWS OF KENYA
AND
IN THE MATTER OF AN APPLCIATION FOR LEAVE TO APPLY FOR
JUDICIAL REVIEW FORCERTIORARI, MANDAMUS AND PROBIBITION
GERALD NTEERE M’ARACHI..............................................................................APPLICANT
VERSUS
THE LAND ADJUDICATION OFFICER
MERU CENTRAL (RUIRI/RWARERA ADJUDICATION SECTION)...........RESPONDENT
JOHN MURIUNGU ARACHI..................................................................INTERESTED PARTY
RULING
1. By a preliminary objection dated 26. 8.2020 the interested party objects to the notice of motion dated 14. 2.2018 on the grounds that the prayers for certiorari are time barred since the decision sought to be quashed was made on 25. 5.2018 yet the proceedings were commenced on 17. 12. 2018 contrary to Sections 8 & 9 of the Law Reform Act as read together with Order 53 Rule 2of theCivil Procedure Rules.
2. On 16. 11. 2018, the exparte applicant filed an exparte chamber summons dated 13. 11. 2018 which was accompanied by a statutory statement dated 13. 11. 2018 and a verifying affidavit sworn on the same date with annextures marked GNM 1 – 5. The decision to be quashed was attached as annexture marked GNM 4 delivered on 25. 5.2018.
3. From my computation, the six months statutory period was expiring on 25. 11. 2018. The court did not certify the matter urgent but placed for inter partes hearing on 26. 11. 2018. Leave was granted to act as stay for six months and the substantive motion was ordered to be filed within 21 days.
4. The notice of motion was filed on 17. 12. 2020 which was within the 21 days and in line with Order 53 rule 3 (1). It is therefore not true the matter was filed on 17. 12. 2018.
5. Order 53 Rule 2 talks of the application for leave to be made not later than 6 months and not the notice of motion.
6. In Nakumatt Holdings Ltd. –vs- Commissioner of Value Added Tax [2011] eKLRthe court held that the six months rule applies to a judgment, order, decree, conviction or other proceedings.
7. In Republic –vs- Kenya Highways Authority & 2 Others Ex-parte –vs- Amica Business Solutions Ltd [2016] eKLR the court held Order 53 rule 2 applies to both judicial and quasi – judicial decisions.
8. Further in Henry Njagi Muruariua –vs- A.O. Akello District Commissioner Mbeere District & Another [2014] eKLRthe court took the view that after the grant of leave, the court of concurrent jurisdiction cannot set aside orders granting leave suo moto and without following the procedure of applying before the Judge who granted leave to set aside the orders as held in Njuguna –vs- Minister for Agriculture [2000] E A 184.
9. In the instant case the interested party has not followed the said procedure. Needless to say and as I have found above the court granted leave having established the chamber summons was filed within time. The said application is spent and hence this court is functus officio on the issue of leave.
10. I therefore find no merits in the preliminary objection dated 26. 8.2020. The same is dismissed with costs. Parties are ordered to comply with Order 11 within 45 days from the date hereof.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 20TH DAY OF DECEMBER, 2021
In presence of:
Mutuma for Interested Party
Kieti for Respondent
C.A Kananu
HON. C.K. NZILI
ELC JUDGE