Automated Summary
Key Facts
Judah Muthee Festus sought leave to apply for certiorari, mandamus, and prohibition against the 1st respondent's 23rd November 2020 decision dismissing his objection regarding Parcel No.2757 Karama. The application, filed on 11th February 2021 within the six-month period under Order 53 Rule 2, was initially not prosecuted on time but was later amended to seek leave under both the Civil Procedure Rules and the Fair Administrative Actions Act 2015. The court granted leave to commence judicial review proceedings, noting the applicant's failure to disclose the status of the land adjudication process or all material facts. The ruling emphasized constitutional rights under Article 47 and the FAA Act, and ordered the notice of motion to be filed within seven days.
Issues
- The court considered if the applicant's failure to seek timely leave under Order 53 for judicial review proceedings violated the mandatory requirements, even though Article 47 of the Constitution and the Fair Administrative Actions Act 2015 grant rights to fair administrative action and access to justice.
- The court addressed the interpretation of Order 53 Rule 2 (six-month leave requirement) in light of Article 159(2)(d) of the Constitution and Section 7 of the Fair Administrative Actions Act, determining that the constitutional right to justice cannot be denied despite procedural delays.
- The court evaluated whether the exparte applicant's delayed prosecution of the leave application, combined with the absence of rules under the Fair Administrative Actions Act, infringed his constitutional right to a fair hearing and access to justice.
Holdings
- The granted leave shall not act as a stay of implementation of the decision dated 23rd November 2020, which dismissed the applicant's objection to Parcel No. 2757 Karama. The court clarified that the absence of specific rules under the Fair Administrative Actions Act does not limit the right to file judicial review, and the application must now be filed and served within 7 days.
- Leave is hereby granted to commence judicial review proceedings under Order 53 of the Civil Procedure Rules and Section 7 of the Fair Administrative Actions Act 2015, as the applicant submitted himself before the court within the required 6-month period under Order 53 Rule 2. The court emphasized that denying leave would contravene the Constitution and the spirit of Article 159(2)(d).
Remedies
- Leave is hereby granted to commence judicial review proceedings but shall not act as stay for reasons above stated.
- Costs shall be in the course.
- The notice of motion shall be filed and served within 7 days from the date of this ruling.
Legal Principles
The court applied judicial review principles under the Fair Administrative Actions Act 2015 and Article 47 of the Constitution to determine the applicant's right to challenge the adjudication decision. It emphasized that the absence of specific rules under Article 22 does not limit the right to commence judicial review proceedings.
Precedent Name
- National Hospital Insurance Fund Management Board exparte Patanisho Maternity & Nursing Home
- Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others
Cited Statute
- Constitution of Kenya
- Land Adjudication Act
- Land Consolidation Act
- Fair Administrative Actions Act
- Judicature Act
Judge Name
C.K. Nzili
Passage Text
- Leave is hereby granted... reasons above stated.
- Given the foregoing... 2015. It would be... this ruling.
- Article 22 of the Constitution... Bill of Rights.