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ELCDismissedJudicial Review (Notice of Motion dated 19th April 2024) arising from Application for Leave dated 22nd March 2024

Republic v Deputy County Commissioner, Kilungu Sub-County & 2 others; Mutwiwa (Exparte Applicant); Julius (Interested Party) (Environment and Land Judicial Review Miscellaneous Application E004 of 2024) [2025] KEELC 2898 (KLR)

Environment and Land Court / High Court (judicial review) — judgment does not name the court
27 March 2025
2,231 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a landowner's challenge because he filed 25 months late, past the strict six-month limit for judicial review cases.

What this practically means

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Executive summary

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The Ex-parte Applicant, John Ndunda Mutwiwa, moved the court by Notice of Motion dated 19th April 2024 under sections 8 and 9 of the Law Reform Act and Order 53 Rules 1 and 2 of the Civil Procedure Rules, seeking certiorari to quash and prohibition against implementation of the Minister's decision in Appeal to the Minister Case No. 372 of 2017 delivered on 3rd February 2022 over Land Parcel No. 981 Kisekini Adjudication Section, which awarded ¾ of the land to the Interested Party's family. He alleged procedural flaws: failure by the Minister to visit the site, absence of clan proceedings, insufficient evidence, failure to give reasons, inadequate time to cross-examine the Interested Party, and consideration of irrelevant matters. The 2nd Respondent, through the Deputy County Commissioner Jane Katuse, denied these allegations, asserting a fair hearing, cross-examination, and a site visit on 26th January 2022 in accordance with section 29 of the Land Adjudication Act. The court framed two issues: its jurisdiction and whether it could review the merits. It held that the leave application, filed about 25 months after the decision, breached the mandatory six-month period in section 9(3) of the Law Reform Act, which cannot be enlarged by the court or overridden by rules of court. It further held that a purely Order 53 judicial review precludes merit review, and that proper procedure was followed and reasons given. The application was dismissed with costs to the Respondents and Interested Party.

Questions the Court framed

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

  1. 1.Whether the court herein has the jurisdiction to hear and determine the judicial review application herein?
  2. 2.Whether this court can determine the merits of the impugned decisions.

Key legal issues

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01

Whether the court has jurisdiction over the judicial review application

Holding

The court lacks jurisdiction because the application for leave, filed 25 months after the impugned decision, breached the mandatory six-month limitation under section 9(3) of the Law Reform Act.

Reasoning

Sections 9(2) and 9(3) of the Law Reform Act prescribe a mandatory six-month period for seeking certiorari. A statutory limitation cannot be enlarged under the court's inherent jurisdiction, and rules of court cannot override the statute. The decision was made on 3rd February 2022 while leave was sought on 22nd March 2024 — a lapse of about 25 months — so the application was time barred.

p. 4
02

Whether the court can review the merits of the Minister's decision

Holding

No. In a purely Order 53 judicial review the court examines procedure, not merits; the Applicant should have proceeded under the Fair Administrative Action Act or a constitutional petition.

Reasoning

The court holds that an applicant who elects the Order 53 route under sections 8 and 9 of the Law Reform Act cannot demand merit review. The court found the Applicant was heard, cross-examined the Interested Party, and the 1st Respondent visited the site and gave reasons, so no procedural flaw was demonstrated.

p. 5

Legal principles established

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  • Applications for orders of certiorari under section 9(3) of the Law Reform Act must be made within six months of the decision; the period is mandatory and cannot be enlarged by the court or by rules of court
  • An applicant who opts for Order 53 judicial review rather than the Fair Administrative Action Act or a constitutional petition cannot seek a merit review of the impugned decision

Court orders

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  1. 1.The Ex-parte Applicant's Notice of Motion dated 19th April 2024 is dismissed
  2. 2.Costs to the Respondents and the Interested Party

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 and Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010 (supervisory jurisdiction)

Relief refused

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Order of Certiorari quashing the 1st Respondent's decision of 3rd February 2022

Application for leave filed out of the mandatory six-month limitation period under section 9(3) of the Law Reform Act

p. 4

Order of Prohibition against the 2nd Respondent

Application devoid of merit; dismissed with costs

p. 5

Costs

Costs of the cause to the Respondents and the Interested Party

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 therefore find that the Applicant’s application is devoid of merit. The same is hereby dismissed with costs to the Respondents and Interested Party.
p. 5Final orders — dismissal with costs
A statutory time limitation cannot be enlarged by this court as that is outside discretion of this court under its inherent jurisdiction.
p. 4Mandatory limitation period for certiorari
The leave application is clearly caught by the statutory time limitation.
p. 4Application time-barred
he cannot be heard to ask this court to do a merit review s the court is only under a duty to ensure that proper procedures were followed.
p. 5No merit review in Order 53 judicial review

Issues in the judgment

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minor

Judgment refers to Ex-parte Applicant's submissions 'dated 1st July, 2023' although the leave application is dated 22nd March 2024 and the Notice of Motion 19th April 2024 — the submissions predate the application

minor

The Interested Party is never individually named in the judgment although an individual (the party to whom ¾ of the land was awarded) is referenced

minor

The 1st Respondent's decision date (3rd February 2022) sits uneasily with the appeal number '372 of 2017' heard on 17th January 2022; typographical 'Appicant' also appears

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 Deputy County Commissioner, Kilungu Sub-County & 2 others; Mutwiwa (Exparte Applicant); Julius (Interested Party) (Environment and Land Judicial Review Miscellaneous Application E004 of 2024) [2025] KEELC 2898 (KLR)", Case Analysis (2025). Judicial Review (Notice of Motion dated 19th April 2024) arising from Application for Leave dated 22nd March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2898/eng@2025-03-27

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