Daniel Mathuva Musa v Deputy County Commissioner, Kilungu Sub-County & others

JOHN SAIVA PARTY MWAKAVI -AND…………………………………….INTERESTED RULING 1. The Applicant filed the Chamber Summons dated 24 th February, 2026 under the provisions of Sections 8 and 9 of the Law Reform Act in addition to Order 53 Rule 1 and 2 of the Civil Procedure Rules, 2010. 2. The following orders were sought: 1) [SPENT] 2) THAT leave be granted to the Applicant to apply for judicial review order of PROHIBITION directing the 2 nd Respondent to refrain from implementing and/or effecting the decision of the 1st Respondent delivered on 12th May, 2023 over land Parcel Nos. 3054 and 3056 NDIANI ADJUDICATION SECTION. 3) THAT leave be granted to the Applicant to apply for judicial review order of CERTIORARI to remove to this Honourable Court and quash the decision of the 1 st Respondent delivered on 12th May, 2023 over land Parcel Nos. 3054 and 3056 NDIANI ADJUDICATION SECTION. 4) THAT the leave so granted do operate as stay of the decision of the 1st Respondent delivered on 12th May, 2023 over land Parcel Nos. 3054 and 3056 NDIANI ADJUDICATION SECTION and the implementation of the same by the 2nd Respondent. 5) Costs of this application be provided by the Interested Party. ELC MISC APPL. NO. E005 OF 2026 Page | 2

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3. The application was supported by the statutory statement dated 24th February, 2026 and the verifying affidavit of Daniel Mathuva Musa sworn on even date. 4. Subsequent to the filing of the application, the Interested Party filed a preliminary objection dated 10 th March, 2026 urging the court to dismiss the application. The following grounds of objection were advanced: 1) THAT the application is scandalous, frivolous, vexatious and is otherwise an abuse of the court process. 2) THAT the application is drawn in blatant disregard of the provisions of Order 53 Rule 2 of the Civil Procedure Rules, 2010 in that the decision sought to be quashed by an order of certiorari was delivered on 12 th May, 2023. 3) THAT following ground 2 hereinabove, the application offends the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010. 5. The preliminary objection was canvassed by way of written submissions. 6. In the Interested Party’s submissions dated 5 th May, 2026, Counsel contended that the Applicant seeks to challenge a decision that was made on 12th May, 2023. That Order 53 Rule 2 of the Civil Procedure Rules outlines a statutory time limitation period of six months to seek a judicial review order of certiorari. That the present application was filed on 24th February, 2026 which is approximately two years and nine months outside the limitation period. Relying on the decision of the court in Rosaline Tubei & 8 others v Patrick K. Cheruiyot & 3 others [2014] KEELC 413 (KLR), Counsel submitted that there is no provision for the court to exercise discretion to extend time which must accordingly be dismissed. 7. The Applicant filed his submissions dated 12 th May, 2026. On his behalf, Counsel contended that the issues raised by the Interested Party require interrogation of the following facts: i) When the Applicant obtained the proceedings and decision; ELC MISC APPL. NO. E005 OF 2026 Page | 3

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ii) Whether there was delay in awaiting proceedings; iii) Whether sufficient cause has been demonstrated; iv) Whether the Applicant was denied a fair hearing; and v) Whether the Applicant was accorded procedural fairness. 8. Counsel submitted that the preliminary objection is incompetent, premature and legally misconceived. A plea was made that the preliminary objection be dismissed with costs. 9. The sole issue for determination is whether the Applicant is legally entitled to leave of the court to commence judicial review proceedings against the 1st Respondent’s decision dated 12th May, 2023. 10. The instant application for leave to apply for judicial review orders of prohibition and certiorari was filed on 24 th February, 2026 pursuant to the provisions of the Law Reform Act and Order 53 of the Civil Procedure Rules, 2010. Sections 9(2) and 9(3) of the Law Reform Act outline as follows: (2) Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates. (3) In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired. ELC MISC APPL. NO. E005 OF 2026 Page | 4

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11. Similarly, Order 53 Rule 2 of the Civil Procedure Rules, 2010 outlines sets out as follows: Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired. 12. The above provisions outline a mandatory statutory period of six (6) months within which an application for leave to apply for a judicial review order of certiorari can be made under the regime of the Law Reform Act. A statutory time limitation cannot be enlarged under the inherent jurisdiction of this court or under subsidiary legislation such as the provisions of the Civil Procedure Rules, 2010. 13. There is a lapse of approximately thirty-two (32) months between the date of the impugned decision of the 1 st Respondent and the date of the leave application herein. The leave application is clearly caught by the statutory time limitation. 14. In Odinga and others v Nairobi City Council [1990–1994] 1 EA 482, the court aptly held as follows: “An application for judicial review, may it be for an order of mandamus, prohibition or certiorari should be made promptly and in any event within a maximum period of six months from the date when the ground for the application arose. The plaintiffs’ application was made after a lapse of 14 months since the ground for the application arose and was therefore time barred. The Rules of Court made under an Act cannot defeat or override the clear provisions of the Act. An Act of Parliament cannot be amended by subsidiary legislation. Thus the part of Order LIII, rule 2 as amended by Legal Notice number 164 ELC MISC APPL. NO. E005 OF 2026 Page | 5

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of 1992 which read “unless the High Court considers that there is good reason for extending the period within which the application shall be made” was ultra vires section 9(2) of the Law Reform Act (Chapter 26).” 15. A similar position was taken by the court in Republic v Council of Legal Education & another Ex parte Sabiha Kassamia & another [2018] eKLR, where Mativo J. (as he then was) observed as follows:“The ex parte applicants invoked sections 8 and 9 of the Law Reform Act in their application, and the provisions of the Civil Procedure Rules. They cannot now turn around and claim that the same provisions they seek to invoke are not applicable in the circumstances of their case. Further, the application before me is governed by the same provisions of the law. It is not a matter of discretion. Discretion does not apply where the statute is clear. In any event, even if the law had granted a discretion in the matter before me, the applicants have not demonstrated any basis for the Court to exercise its discretion in their favour. Delay, no matter how short must be accounted for. It is also important to point out that the provisions of order 50 Rule 6 of the Civil Procedure Rules, 2010 which grant the Court power to enlarge time cannot override the express provisions the Statute, namely, section 9 (3) of the Law Reform Act. In this regard, I find useful guidance in the authorities cited by Mr. Oduor, namely, Re an application by Gideon Waweru Githunguri [1962] 1 EA 520 whereby the colonial Supreme Court held that the said section imposes an absolute period of limitation… In view of my conclusions herein above, and my finding that section 9 (3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, 2010 are couched in mandatory terms, I find and hold that the preliminary objection succeeds.” 16. In view of the express provisions of Section 9 of the Law Reform Act, it is clear that the instant application for leave to apply for judicial review orders of certiorari as filed by the Applicant is a ELC MISC APPL. NO. E005 OF 2026 Page | 6

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nullity for limitations. 17. non-compliance with mandatory statutory time Accordingly, the preliminary objection dated 10th March, 2026 ought to be upheld. The Chamber Summons dated 24 st February, 2026 ought to be dismissed with costs to the Interested Party. ................................................ HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH OCTOBER, 2026. IN THE PRESENCE OF: Mr. Nyingi for Applicant Mr. Kilonzi for Mr. Nzei for Intended Party Court Assistants – Jackline and Steve ELC MISC APPL. NO. E005 OF 2026 Page | 7

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