Case ID:185918

M’aitumitu Kamau v District Land Adjudication &

Settlement Officer & another;Pasilius Mboya M’mingane & another [2021] eKLR

Case Metadata

Case Number:

Judicial Review E013 of 2021

Parties:

M’aitumitu Kamau v District Land Adjudication & Settlement Officer & Attorney General;Pasilius Mboya M’mingane & Daniel Rwito

Date Delivered:

17 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

M’aitumitu Kamau v District Land Adjudication &

Settlement Officer & another;Pasilius Mboya M’mingane & another [2021] eKLR

Court Division:

Judicial Review

County:

Meru

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

JUDICIAL REVIEW NO. E013 OF 2021

M’AITUMITU KAMAU .................................................. APPLICANT

VERSUS

DISTRICT LAND ADJUDICATION &

SETTLEMENT OFFICER .................................... 1

ST

RESPONDENT

ATTORNEY GENERAL ....................................... 2

ND

RESPONDENT

AND

PASILIUS MBOYA M’MINGANE ........... 1

ST

INTERESTED PARTY

DANIEL RWITO ........................................ 2

ND

INTERESTED PARTY

RULING

1. The court is tasked to determine the application dated

5

th

July 2021

seeking for leave to commence judicial review proceedings against the decisions made by the 1

st

and 2

nd

respondents in favour of the interested party on

31.8.2016.

2. The interested parties through a preliminary objection dated 4.10.2021 object to the application for being brought contrary to

Order 53 rule 2

of the

Civil Procedure Rules

.

3. Prior to 2010, the substantive law governing judicial review was

Sections 8 and 9

of the

Law Reform Act Cap 26 Laws of Kenya

and

Order 53

.

Articles 22, 23 and 47

of the

Constitution

and the

Fair Administrative Actions Act 2015

currently supplement the previous provisions of the law as held in

Communications Commission of Kenya -vs- Royal Media Services Ltd. & 7 Others [2014] eKLR

.

4. Under

Section 13 of Fair Administrative Actions Act

, the Chief Justice is mandated to enact rules to operationalize the law.

Article 23

of the Constitution makes a proviso that notwithstanding lack of these rules, a party may not be denied a chance to present his claim and have it determined by the court.

5. The jury is still out there as to whether or not the above Constitutional framework should settle the prevailing intricacies and obscurities which hamper effective redress to and access to justice by adopting a flexible approach.

6. In

Wilson Osolo –vs- John Ojiambo Ochola & Attorney General [1995] eKLR

the court held:

“

As can readily be seen ---------- Order 53 Rule 2 is derived from Section 9 (2) of the Law Reform Act. Whilst the time limited for doing something under Civil Procedure Rules can be extended by an application under Order 49 of the Civil Procedure Rules, the procedure cannot be availed of the extension of time limited by statute in this case, the Law Reform Act.”

In

Republic –vs- Council of Legal Education & Another Exparte Subina Kasamia & Another [2018] eKLR

the court held

Section 9 (3) of the Law Reform Act is couched in mandatory terms “shall” and imports a form of command or mandate and that Parliament prescribed a period of six months within which application of certiorari may be brought and a court has no discretion to extend time.

7. In

Felix Kiprono Matagei –vs- Attorney General: Law Society of Kenya (Amicus Curiae[ 2021] eKLR

it was held though

Fair Administrative Actions Act

does not allude to

Section 8 and 9 of the Law Reform Act

and

Order 53

, it by implication, supplants, them and firmly placed judicial review under the

Fair Administrative Actions Act

. The court further held failure by parliament to repeal

Section 8 & 9

of the

Law Reform Act,

has led to continuing confusion as regards the procedure for institution of judicial review proceedings. The court nevertheless found the said sections still constitutional.

8. It is also noteworthy that Fair

Administrative Actions Act

does not make any reference to the requirements for leave before the institution of judicial review.

Section 9 (1)

thereof provides an application for judicial review shall be heard and determined without undue regard to procedural technicalities.

9. Further,

Section 14

of the

Fair Administrative Actions Act

on transitional provisions states the practice and procedure prevailing before the enactment of this

Act

shall be followed and in case of difficult or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.

10. In the instant case, the exparte application is made under

Section 8 & 9 of the Law Reform Act

and

Order 53 of the Civil Procedure rules

. This court lacks powers to entertain a claim for certiorari made outside the timelines provided under

Section 8 & 9 of the Law Reform Act.

11. I find the preliminary objection meritorious. The same is upheld and the proceedings herein dismissed with costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 17

TH

DAY OF NOVEMBER, 2021

In presence of:

Karimi for petitioner

Kimathi for 1

st

and 2

nd

respondents

Court Clerk: Kananu

HON. C.K. NZILI

ELC JUDGE