https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12299

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **JUDICIAL REVIEW MISC APPLICATION NO. E001 OF 2025** IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY WAY OF THE ORDER OF MANDAMUS =AND= IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT, CAP 26 LAWS OF KENYA =AND= IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010 =AND= IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA, ARTICLES 23, 40, 48 AND 50 THEREOF **BETWEEN** REPUBLIC ................................................................................... APPLICANT **=VERSUS=** 1. THE COUNTY ATTORNEY OF MACHAKOS 2. COUNTY SECRETARY, GOVERNMENT OF MACHAKOS 3. THE COUNTY EXECUTIVE COMMITTEE MEMBER FOR FINANCE, GOVERNMENT OF MACHAKOS COUNTY 4. CHIEF OFFICER FINANCE, GOVERNMENT OF MACHAKOS 5. THE GOVERNOR, COUNTY GOVERNMENT OF MACHAKOS 6. COUNTY GOVERNMENT OF MACHAKOS ......................................... RESPONDENTS **=AND=** B.M. MUNG'ATA & COMPANY ADVOCATES .......................... EX PARTE APPLICANT **RULING** *(On the Respondents' Preliminary Objection dated 14th April 2026)* **A. BACKGROUND** 1. By a Notice of Motion dated 27th October 2025, filed pursuant to leave granted by this Court on 29th May 2025, the ex parte Applicant seeks, principally, an order of mandamus compelling the Respondents to pay the sum of Kenya Shillings Two Hundred and Seventy Two Thousand, One Hundred and Twenty Five (Kshs. 272,125/=), being an outstanding decretal amount in ***Machakos High Court Misc. Application No. 128 of 2020; B.M. Mung'ata & Co. Advocates v. County Government of Machakos***, arising from Machakos Chief Magistrate's Court Civil Case No. 709 of 2017. 2. The procedural history is material. On 2nd June 2025 the matter came up for the hearing of the application for leave, at which stage the Respondents sought an adjournment on account of their own pending appeal. On 29th May 2025 the Court (E.N. Maina, J.) granted leave to the ex parte Applicant to institute judicial review proceedings, with a direction that the substantive Notice of Motion be filed and served within twenty-one (21) days. 3. The Notice of Motion was not filed within the twenty-one (21) day period, nor within any extended period sanctioned by the Court. It was instead filed some five (5) months later, on 27th October 2025. No application for enlargement of time was ever made or granted, whether before or after the expiry of the twenty-one (21) days. 4. On 11th November 2025 and thereafter on 10th March 2026, the matter came up for mention, with the Respondents raising concern over the propriety of the application. On 10th March 2026 the Court directed that any objection to the competence of the Notice of Motion be filed and served within seven (7) days, the matter to be mentioned on 16th April 2026. 5. On 16th April 2026 counsel for the Respondents, Mr Mutua, informed the Court that a Preliminary Objection dated 14th April 2026 had been filed and served upon the ex parte Applicant's advocates, B.M. Mung'ata & Company, by email the previous day. This was confirmed by Ms Mule, then holding brief for Mr Muema, learned counsel for the ex parte Applicant, who confirmed service at 5.57 p.m. the previous day. The Court directed that the Preliminary Objection be canvassed there and then, and the same was argued at 11.43 a.m. that day. **B. THE PRELIMINARY OBJECTION** 6. The Preliminary Objection dated 14th April 2026 is grounded on **Order 53 Rule 3(1) of the Civil Procedure Rules, 2010**, which provides for a mandatory twenty-one (21) day period within which a substantive Notice of Motion for judicial review must be filed following the grant of leave. The Respondents' position, as advanced by Mr Mutua, is that: (a) the issue raised is jurisdictional and not a mere technicality; (b) leave was granted on 29th May 2025 for the Notice of Motion to be filed within 21 days; (c) this was not done; instead, the application was filed five (5) months later on 27th October 2025; (d) no extension of time was ever sought; (e) the failure to comply with the mandatory provisions of Order 53 Rule 3(1) leaves the Court with no application to hear and determine; and (f) the application is accordingly defective and incompetent, and ought to be dismissed with costs. 7. In response, Ms Mule submitted that the ex parte Applicant did file an application dated 27th October 2025, following the grant of leave on 29th May 2025; that the delay was occasioned because the parties were, in good faith, pursuing settlement with the Respondents; and that the present matter was brought together with other related matters pending before Adagi, J. It was submitted that once negotiations broke down, the Applicant filed the present application, and that it would only be fair for the Court to hear the matter on its merits rather than dismiss it on a technicality. 8. In reply, Mr Mutua submitted that he was not aware of any negotiations, and that even if such negotiations existed, they do not suspend statutory timelines. It was submitted that the issue is not a technical procedural issue but a jurisdictional one; that where no extension of time is granted, there is no application in existence upon which the Court can act; and that the Court should uphold the Preliminary Objection and dismiss the application. **C. ISSUE FOR DETERMINATION** 9. The sole issue for determination is ***whether the ex parte Applicant's Notice of Motion dated 27th October 2025, filed well outside the twenty-one (21) day period prescribed under Order 53 Rule 3(1) of the Civil Procedure Rules and without any application for extension of time, is competent before this Court****.* **D. THE LAW** 10. The jurisdiction of this Court to entertain applications for judicial review is donated by **sections 8 and 9 of the Law Reform Act, Cap 26**, and the procedure for its exercise is set out in **Order 53 of the Civil Procedure Rules, 2010**. Order 53 Rule 3(1) provides: *“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 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.”* 11. Two lines of authority have developed on the legal character of this timeline, both of which this Court has independently verified and finds to be good law as at the date of this Ruling. **(i) The mandatory/jurisdictional line** 12. The foundational authority is the Court of Appeal decision in ***Wilson Osolo v. John Ojiambo Ochola & the Hon. Attorney General***, Civil Application No. 6 of 1995 (Nairobi) [1996] eKLR, which has been consistently applied by the High Court for three decades and remains good law. The Court of Appeal held: *“It was a mandatory requirement of Order 53 rule 3(1) of the Civil Procedure Rules... 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.”* 13. Importantly, the Court of Appeal in ***Wilson Osolo*** itself acknowledged that the 21-day period *could* have been extended by a reasonable period, but only *had there been an application* made for that purpose. The ratio, properly understood, is not that enlargement can never be granted, but that in the absence of any application for enlargement, a notice of motion filed after the 21 days have lapsed discloses no proper application before the court. 14. This principle has been applied to strike out or dismiss notices of motion filed out of time without any accompanying application for extension. In ***Judicial Review Application No. E001 of 2023***, the ex parte applicant was granted leave with 21 days to file and serve the substantive motion but filed it only three days after that period lapsed, without seeking extension; the Court held this fatal to the competence of the application notwithstanding the shortness of the delay. 15. Likewise, in ***Rowa (Ex Parte Applicant); Ngorome & 4 Others***, Judicial Review Miscellaneous Application No. E005 of 2024, [2025] KEELC 55 (KLR) (Nyagaka, J., 21 January 2025), the Environment and Land Court struck out a notice of motion filed outside the 21-day period where no extension of time had been sought, holding, by reference to the Supreme Court's language in ***Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others*** [2014] eKLR, that: *“...the Notice of Motion is a strange document to the court and a nullity.”* 16. It was struck out with costs to the Respondents and Interested Parties who opposed it. **(ii) The discretion-to-enlarge line** 17. A second, more liberal line holds that the 21-day period, being contained in subsidiary legislation (the Civil Procedure Rules) rather than in the parent statute, may be enlarged under **Order 50 Rule 6 of the Civil Procedure Rules**, which empowers the Court to enlarge time fixed for doing any act under the Rules, *even where the application for enlargement is made after the time appointed has already expired*. In ***Republic v. Kenya Revenue Authority Ex Parte Tom Odhiambo Ojienda SC t/a Prof. Tom Ojienda & Associates*** ***[2016] eKLR,*** the Court observed: *“There is no doubt that judicial review proceedings are special proceedings guided by sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. However, the framers of the said Rules deemed fit to provide for enlargement of time in instances where the said framers had themselves prescribed the timelines...”* 18. A similar approach was taken in ***Kenya Bureau of Standards & 3 Others v. Kenya Maritime Authority Ex Parte Car Importers Association***, ***Miscellaneous Civil Application No. JR 8 of 2014, [2014] eKLR***, where Mureithi, J. distinguished the six-month statutory period for certiorari prescribed by section 9(3) of the Law Reform Act, which is substantive law incapable of enlargement, from the twenty-one-day period for filing the notice of motion prescribed by Order 53 Rule 3(1), which, being subsidiary legislation, may be enlarged under Order 50 Rule 6. The same distinction was maintained in ***Republic v. Public Procurement Administrative Review Board Ex Parte Syner Chemie Limited***, ***Judicial Review Nos. 371 & 372 of 2015 (Consolidated) [2016] eKLR***, both of which enlarged time to file the substantive motion. 19. The same judge subsequently reaffirmed and applied this reasoning in ***Republic v. Speaker of Nairobi City County Assembly & Another Ex Parte Evans Kidero***, ***Judicial Review No. 480 of 2016, [2017] eKLR*** (Aburili, J.), holding: *“...even if there was no specific provision for enlargement of time in a procedural rule like Order 53 Rule 3 of the Civil Procedure Rules, what this court needs to satisfy itself is that there is no demonstrable prejudice caused to the adverse party because of delay and whether refusal to enlarge time would occasion hardship and result in an injustice to the applicant.”* 20. A recent illustration of this line is ***Republic v. Director of Public Prosecutions & 3 Others; Njeru & Another (Ex Parte); Multistage Investment Limited (Interested Party)***, ***Judicial Review E084 of 2023, [2025] KEHC 332 (KLR)*** (Chigiti, J.), where a notice of motion filed approximately two months out of time was nonetheless permitted to proceed. It is critical to note, however, precisely *why* the Court there declined to strike out the motion: the delay was fully explained on affidavit (counsel's documented illness), the ex parte applicants had, albeit belatedly, upon being confronted with a preliminary objection, filed their own application seeking enlargement of time, and the interested party had not demonstrated any prejudice. The Court expressly noted that it was *not* being asked to determine an application for enlargement of time in the abstract, but was assessing, on those specific facts, whether the interests of justice under Article 159(2) of the Constitution favoured hearing the matter on its merits. 21. What unites every case in this second line, properly read, is that the enlargement or the refusal to strike out , was justified only upon an application for extension of time being placed before the Court (however belated), accompanied by an explanation for the delay and an absence of demonstrable prejudice to the opposing party. None of these authorities holds that a notice of motion filed out of time, in the complete absence of any application for extension whatsoever, is nonetheless competent. **(iii) The governing principles for extension of time** 22. Whichever line of authority applies, an applicant seeking the benefit of an enlargement of time must in any event satisfy the principles laid down by the Supreme Court in ***Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others*** [2014] eKLR, where the Court held: *“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court... A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court... Whether there is a reasonable reason for the delay [is a relevant consideration]. The delay should be explained to the satisfaction of the Court.”* 23. The same Court in ***Nicholas Kiptoo Arap Korir Salat (supra)*** went further, in language directly applicable to a document filed out of time without leave: *“To file an appeal out of time and seek the Court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the Court. Such a filing renders the 'document' so filed a nullity and of no legal consequence.”* 24. This principle was expressly reaffirmed by the Supreme Court in ***Nairobi Bottlers Limited v. Ndung'u & Another***, ***Application E030, E034 & E038 of 2023 (Consolidated) [2023] KESC 96 (KLR)***, where the Court declined to deem an appeal filed out of time as properly filed, holding that to do so “would be tantamount to sanctioning an illegality.” It follows that even on the most generous reading of the discretion-to-enlarge line, an applicant who never places any application, affidavit, or explanation for delay before the Court, whether before or after filing, has laid no basis whatsoever upon which that discretion could be exercised in his favour, and the document so filed remains a nullity unless and until leave to file out of time is sought and granted. **E. ANALYSIS AND APPLICATION TO THE FACTS** 25. This Court need not resolve, in the abstract, which of the two lines of authority is to be preferred, because on the facts before it the ex parte Applicant falls outside the protection of either line. 26. First, unlike the applicants in ***Njeru***, ***Kidero***, ***Ojienda*** and ***Syner Chemie***, the ex parte Applicant here never filed any application for enlargement of time, not before the twenty-one (21) days lapsed, not during the ensuing five (5) months, and not even after the Preliminary Objection was raised. This is the single feature that distinguishes a case falling within the discretion-to-enlarge line from one falling squarely within ***Wilson Osolo***, ***Judicial Review Application No. E001 of 2023*** and ***Rowa***: in each of the latter, as here, the absence of any application to extend time was treated as fatal, irrespective of the length of the delay. 27. Second, the delay here is of a materially greater magnitude than in any of the cases considered above. Leave was granted on 29th May 2025 with a clear 21-day window; the Notice of Motion was filed on 27th October 2025, approximately five months later. This considerably exceeds the roughly two-month delay excused in ***Njeru*** (itself only excused because it was explained, and because an application for extension had eventually been filed) and the three-day delay that was nonetheless held fatal in ***Judicial Review Application No. E001 of 2023***. 28. Third, the explanation proffered, that the parties were pursuing settlement negotiations in good faith — is not, without more, a recognised basis for suspending a statutory or procedural timeline, and is not equivalent to the documented, affidavit-supported explanations (such as counsel's proven illness in ***Njeru***) that have been accepted in the discretion-to-enlarge cases. Settlement negotiations between parties do not of their own force toll time; they can only do so where the Court is moved, by consent or by application, to record an order suspending or extending the applicable timeline. No such order was sought or made at any point between 29th May 2025 and 27th October 2025, and no affidavit evidence of the alleged negotiations was placed before this Court. The bare assertion that the matter was consolidated with other proceedings before Adagi, J. does not appear to have been the subject of any order of this Court staying or extending time in this matter, and cannot retrospectively cure the default. 29. Fourth, applying the principle in ***Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 Others***, as reaffirmed by the Supreme Court in ***Nairobi Bottlers Limited v. Ndung'u & Another***, the filing of the Notice of Motion out of time without leave renders that document a nullity of no legal consequence unless and until leave to file out of time is sought and granted. No such leave was ever sought here, whether contemporaneously with the late filing or at any point thereafter. To treat the Notice of Motion as properly before this Court in these circumstances would, in the words of the Supreme Court, “be tantamount to sanctioning an illegality.” 30. For these reasons, the Court finds that the Notice of Motion dated 27th October 2025 was filed out of time, in breach of Order 53 Rule 3(1) of the Civil Procedure Rules, without any application for extension of time having been made or granted at any stage. The application is accordingly incompetent and a nullity, and there is no competent application before this Court for determination on its merits. **F. DISPOSITION** 31. The upshot is that the Respondents' Preliminary Objection dated 14th April 2026 is well founded and is hereby **UPHELD**. 32. Consequently, this Court makes the following orders: (a) The Notice of Motion dated 27th October 2025 is struck out for being incompetent and a nullity. (b) The ex parte Applicant shall bear the costs of the Preliminary Objection and of the application. **It is so ordered.** RULING DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 30TH DAY OF JULY 2026. **E. N. MAINA** **JUDGE** *In the presence of:* Mr Nzii for Mr Muema, Advocate for the Ex Parte Applicant Mr Mutua for the Respondents Court Assistant Miriam