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ELCDismissedJudicial Review Application dated 21st December 2022 (Mombasa)

Republic v Salim & 2 others; Gami (Exparte Applicant) (Environment and Land Judicial Review Case E006 of 2022) [2024] KEELC 5440 (KLR)

High Court of Kenya
23 July 2024
1,875 words in judgment
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The bottom line

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Kenya's High Court dismissed a judicial review case filed one year late, confirming the six-month deadline for certiorari cannot be extended, and appeals were the proper remedy.

What this practically means

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Executive summary

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The ex parte applicant sought an order of certiorari to quash a ruling of the 3rd respondent delivered on 22nd December 2021 in Mombasa Civil Suit No. E014 of 2021, alleging that the magistrate lacked jurisdiction to hear the suit while High Court matter ELC No. 255 of 2018 over the same parties and subject matter was pending, and that the magistrate wrongly refused a stay pending appeal, after which the 1st and 2nd respondents demolished the applicant's permanent houses. The applicant also sought prohibition restraining the 1st and 2nd respondents from alienating, transferring or altering plot No. sub division 10947 section 1 Mainland North Mtwapa. The 1st and 2nd respondents opposed, raising a preliminary objection that the application, filed on 22nd December 2022, was brought outside the six-month limitation period in Section 9(3) of the Law Reform Act read with Order 53 rule 2 of the Civil Procedure Rules. The court reiterated that judicial review concerns the decision-making process, not the merits or private rights, holding that a review court is not a court of appeal over the decision-maker. It held the application was statute-barred: the six-month limitation is statutory, the Law Reform Act contains no extension mechanism, and rules made under statute cannot override a statutory provision, so Order 50 rule 5 could not be used to enlarge time. The court further observed that the applicant's proper remedy was an appeal under the Civil Procedure Act. The application was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the 3rd respondent had jurisdiction to proceed with Mombasa Civil Suit No. E014 of 2021 in the face of ongoing High Court matter ELC No. 255 of 2018 involving the same parties and subject matter
  2. 2.Whether the application for an order of certiorari, filed more than six months after the impugned decision of 22nd December 2021, is statute-barred
  3. 3.Whether the court can enlarge time for filing an application for certiorari outside the six-month limitation period

Key legal issues

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01

Limitation period for applications for certiorari

Holding

The application filed on 22nd December 2022 against a decision dated 22nd December 2021 was out of time and could not be salvaged by any extension provision

Reasoning

Judicial review jurisdiction is governed substantively by Sections 8 and 9 of the Law Reform Act and procedurally by Order 53 of the Civil Procedure Rules. Both Section 9(3) and Order 53 rule 2 impose a six-month limit for seeking certiorari. Although Order 50 rule 5 permits enlargement of time under the rules, the limitation here is statutory and the Law Reform Act contains no extension provision, so the court had no power to enlarge time.

p. 3
02

Scope of judicial review - process versus merits

Holding

Judicial review is concerned only with the decision-making process and procedural propriety, not with the merits or private rights; contested factual disputes belong in ordinary civil suits

Reasoning

Relying on Municipal Council of Mombasa v Republic, Wednesbury, Seventh Day Adventist Church and Commissioner of Lands v Kunste Hotel, the court reiterated that a review court examines jurisdiction, hearing and relevant considerations, and cannot act as a court of appeal over the decision-maker. An applicant invoking review to determine contested facts or secure a merits determination exceeds that jurisdiction.

p. 2
03

Certiorari as a discretionary remedy

Holding

Certiorari is discretionary and the court may refuse it even where grounds exist, weighing whether the remedy is efficacious on the evidence and sound legal principles

Reasoning

Citing Halsbury's Laws of England (4th Edition, Vol. 2), the court noted that certiorari is a discretionary remedy that must be exercised on evidence and sound legal principles. However, the decisive ground in this case was the statutory six-month limitation, not the exercise of discretion.

p. 3
04

Correct avenue against a magistrate's ruling pending appeal

Holding

The proper remedy against the 3rd respondent's ruling refusing a stay pending appeal was an appeal under the Civil Procedure Act, not judicial review

Reasoning

The court observed that the Civil Procedure Act provides how appeals from the magistrate's court are to be filed, and the applicant did not pursue that right, instead invoking the Law Reform Act and Order 53. The applicant ought to have appealed rather than seek prerogative orders.

p. 4

Legal principles established

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  • An application for leave to apply for an order of certiorari must be made not later than six months after the date of the judgment, order, decree, conviction or other proceedings sought to be quashed
  • Rules made under a statute cannot override a statutory provision; since the six-month limitation for certiorari is contained in Section 9(3) of the Law Reform Act, which has no extension mechanism, time cannot be enlarged under the Civil Procedure Rules

Court orders

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  1. 1.The judicial review application seeking certiorari and prohibition is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules, 2010

Relief refused

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Order of certiorari to quash the decision of the 3rd respondent of 22nd December 2021 and proceedings in Mombasa Civil Suit No. E014 of 2021

The application was filed out of time - more than six months after the impugned decision - and the statutory limitation period in Section 9(3) of the Law Reform Act cannot be extended

p. 4

Order of prohibition against the 1st and 2nd respondents from alienating, transferring or altering plot No. sub division 10947 section 1 Mainland North Mtwapa

The application was found unmerited for want of jurisdiction to extend the statutory limitation period

p. 4

Extension of time to file the application for leave to apply for certiorari

The limitation period is statutory under Section 9(3) of the Law Reform Act, which has no provision for extension, and rules cannot override a statutory provision

p. 4

Costs

Costs of the application awarded to the respondents

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.

I find this application is not merited and is hereby dismissed with costs to the respondents.
p. 4Disposition - dismissal of the judicial review application
The decision that is sought to be quashed is dated 22nd December 2021. The application was filed on 22nd December 2022. The application is therefore out of time.
p. 3Six-month statutory limitation for certiorari
it is trite law that rules made under statute, cannot override a statutory provision.
p. 4Hierarchy of statute over procedural rules in limitation matters
The Law Reform Act itself has no provision for extension of time. I have seen no law, which can entitle me to enlarge time for the filing of an application for certiorari outside the 6-month limitation period.
p. 4No jurisdiction to enlarge the statutory limitation period
The applicant ought to have filed an appeal against the decision of the 3rd respondent as opposed to a judicial review.
p. 4Wrong remedy chosen - appeal, not judicial review
Judicial Review is concerned not with private rights or the merits of the decision being challenged but with the decision making process.
p. 2Scope of judicial review

Issues in the judgment

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minor

The judgment inconsistently dates the impugned ruling: the application grounds refer to a decision of the 3rd respondent 'of the 22nd December 2012', while the court's limitation analysis and the prayer record 22nd December 2021/2022

minor

The judgment does not state the case number, party names or coram beyond the signature block; the ex parte applicant and the 1st and 2nd respondents are not named

minor

The quotation from Wilson Osolo appears garbled, with stray slashes and internal quotation marks, and mislabels Maraga JA's holding in a Court of Appeal case as though the citing judge were a party to it

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Salim & 2 others; Gami (Exparte Applicant) (Environment and Land Judicial Review Case E006 of 2022) [2024] KEELC 5440 (KLR)", Case Analysis (2024). Judicial Review Application dated 21st December 2022 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5440/eng@2024-07-23

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