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ELCDismissedJudicial Review Application (leave) - number not stated in judgment

Republic v Ministry of Devolution and Planning & 2 others [2013] KEELC 43 (KLR)

Environment and Land Court
3 October 2013
MSMunyao Sila
902 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed 1,818 evictees' compensation challenge because they never identified a specific government decision to overturn or its date.

What this practically means

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Executive summary

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The ex-parte applicants, 1,818 in number represented by Jackson Agui, sought leave under Order 53 to commence judicial review proceedings for orders of certiorari and mandamus against the Ministry of Devolution and Planning concerning a list of forest evictees earmarked for compensation and resettlement. They contended that the Ministry's list was marred by irregularities, was not exhaustive, and excluded genuine evictees including themselves, and that payment could be made at any time. They also sought that leave operate as a stay. The court, Munyao Sila J, observed that the application was poorly drafted and the supporting material deficient: the annexed lists were unsigned and undated, their provenance unclear, and no correspondence was produced showing that the applicants had alerted the Ministry to the alleged irregularities or that the Ministry had rejected their list. Critically, there was no demonstration of any decision capable of being quashed by certiorari, and no evidence of when such a decision, if it existed, was made. That omission was fatal because Order 53 Rule 2 requires that leave for certiorari be sought within six months of the proceeding, and the court could not assess compliance with that limitation without a date. The judge also noted that the leave stage under Order 53 Rule 1 functions to weed out frivolous claims. The application was dismissed with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave should be granted to institute judicial review proceedings for certiorari and mandamus
  2. 2.Whether the applicants demonstrated a decision capable of being quashed by certiorari
  3. 3.Whether the application for leave was brought within the six-month limitation period under Order 53 Rule 2

Key legal issues

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01

Identification of an amenable decision for certiorari

Holding

No decision capable of being quashed was demonstrated; the annexed list was unsigned and undated and its provenance unclear

Reasoning

The applicants annexed two competing lists, neither dated nor signed, and produced no correspondence showing the Ministry adopted one list or rejected theirs. Without evidence that a governmental decision was made adopting JA-4 as the resettlement list, there was nothing for certiorari to remove into the court.

p. 2
02

Compliance with the six-month limitation under Order 53 Rule 2

Holding

The application could not satisfy the limitation because the date of the alleged decision was unknown

Reasoning

Rule 2 bars leave for certiorari unless the application is made not later than six months after the proceeding. Since the applicants could not show when the alleged decision to use the impugned list was made, the court could not determine whether the application was within time, and leave could not be granted on that basis.

p. 2

Legal principles established

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  • An applicant for leave to apply for certiorari must demonstrate the existence of a decision to be quashed and the date it was made, to establish compliance with the six-month limitation in Order 53 Rule 2
  • The leave stage under Order 53 Rule 1 serves as a filter to weed out frivolous judicial review claims

Court orders

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  1. 1.The application for leave to institute judicial review proceedings is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MS
majority

Wrote the judgment

Jurisdiction invoked
Order 53 of the Civil Procedure Rules (applications for judicial review leave)

Relief refused

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Leave to file a judicial review motion for orders of certiorari and mandamus

No decision to be quashed was demonstrated and no date of any such decision shown to satisfy the six-month rule

p. 2

Stay of the decision pending hearing of the substantive motion

Leave having been refused, the consequential stay could not issue

p. 3

Costs

No orders as to costs - 'I however make no orders as to costs.'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Indeed, there is no demonstration of any decision that may be the subject of orders of certiorari.
p. 2Requirement of an identifiable decision for certiorari
It is imperative for one to demonstrate, that the decision intended to be quashed was made within 6 months of the application, before the court can be inclined to grant leave to file the substantive motion.
p. 2Six-month limitation under Order 53 Rule 2
In the premises, this application must fail and is dismissed. I however make no orders as to costs.
p. 3Disposition

Issues in the judgment

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minor

The second respondent is not named in the judgment; the relief refers only to 'DEVOLUTION AND PLANNING' and the grounds refer to 'the 1st respondent', leaving the identity of other respondents unclear

minor

The case number of the application is not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Ministry of Devolution and Planning & 2 others [2013] KEELC 43 (KLR)", Case Analysis (2013). Judicial Review Application (leave) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/43/eng@2013-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.