Musango & 3 others v Deputy County Commissioner Makindu Sub-County, Makueni County; Siva & 7 others (Interested Parties) (Civil Appeal 105 of 2019) [2025] KECA 499 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a judge cannot strike out a judicial review case on limitation grounds after already granting an extension of time that nobody challenged.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in striking out the substantive judicial review motion on a preliminary objection founded on the six-month limitation period when leave to extend time had already been granted ex parte and never set aside
- 2.Whether the six-month limitation under section 9(3) of the Law Reform Act and Order 53 Rule 2 applied to the whole motion including the relief of mandamus
Key legal issues
#Effect of an unchallenged ex parte order extending time for judicial review
Once leave to extend time beyond the six-month period had been granted ex parte and was never set aside on appeal or otherwise, the trial judge erred in striking out the substantive motion on a limitation-based preliminary objection.
The appellants filed a chamber summons on 24th February 2017 seeking enlargement of time and leave to apply for certiorari, prohibition and mandamus. The judge granted prayers 1 to 4, enlarging time. No appeal was preferred against that order. The court held the respondents could challenge the extension in response to the substantive motion, but the judge who granted it could not himself ignore it; he was bound to deal with the substantive amended motion.
Applicability of the limitation period to mandamus
Even if the preliminary objection was properly entertained, the six-month limitation applies only to certiorari; mandamus carries no limitation period, so striking out the whole cause was erroneous.
The court found the judge failed to take into account a relevant factor: the relief of mandamus could not be disallowed on the ground of the limitation period applicable to certiorari. This independent finding further undermined the striking out of the entire application.
Legal principles established
#- Where a judge has granted ex parte leave extending the six-month limitation period for judicial review, that judge cannot subsequently sustain a preliminary objection that the motion is time-barred; the extension may only be challenged and set aside by the opposing party, failing which the substantive motion must be heard.
- The six-month limitation period prescribed for certiorari does not apply to an order of mandamus; striking out an entire cause on limitation grounds where mandamus is also sought ignores a relevant factor.
Court orders
#- 1.Appeal allowed
- 2.Orders contained in the ruling delivered on 18th January 2019 set aside
- 3.The substantive amended motion to be heard afresh by a different judge
- 4.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's decision (appellate review of judicial review proceedings); appeal by way of memorandum of appeal dated 22nd March 2019
Relief refused
#Costs against any party
The court declined to award costs, making no orders as to costs
Costs
We make no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We therefore allow the appeal, and set aside the orders contained in the ruling delivered on 18th January 2019.
The substantive amended motion shall be heard afresh by a difierent judge.
We make no orders as to costs.
It was not open to the learned judge, who had granted the extension, to ignore it and sustain the preliminary objection that had challenged the motion on the basis that it was brought after the expiry of six (6) months.
the six months limitation period could only apply to the order for certiorari since no limitation period is prescribed where an order of mandamus is sought.
Issues in the judgment
#Internal inconsistency in the record of the trial ruling's date: the ruling is described as striking out the application after the preliminary objection dated 7th May 2018, yet the court's disposition refers to a ruling delivered on 18th January 2019 while the memorandum of appeal is dated 22nd March 2019; the judgment does not state the exact date the striking-out ruling was delivered.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Musango & 3 others v Deputy County Commissioner Makindu Sub-County, Makueni County; Siva & 7 others (Interested Parties) (Civil Appeal 105 of 2019) [2025] KECA 499 (KLR)", Case Analysis (2025). Civil Appeal (memorandum of appeal dated 22nd March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/499/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.