Automated Summary
Key Facts
The applicant, M'aitimitu Kamau, challenged a 2016 decision regarding ownership of L.R Antubetwe/Kiongo/722 land, claiming he was condemned unheard in ex parte proceedings and alleging collusion between respondents and the interested party. The court dismissed his judicial review application due to inordinate delay and res judicata, noting a prior similar application in JR No. E03 of 2013 had already been ruled on. The applicant argued constitutional grounds (Articles 40, 48) and cited precedents, but the court found no new merits to justify the delay.
Issues
- The court determined if the applicant's 2022 application was res judicata, as the same parties and subject matter were previously addressed in JR No. E03 of 2013 and a 2021 ruling. The applicant's failure to appeal or review the prior judgment was a key factor in the opposition's argument.
- The court assessed the applicant's claim that the 2016 decision was rendered without notice, violating Articles 40 and 48 of the Constitution. The applicant invoked Section 9(1) of the Fair Administrative Action Act 2015 to challenge this, but the court found no new evidence or justification for revisiting the prior determination.
- The court evaluated the applicant's request to enlarge time for filing a judicial review application beyond the 6-month statutory period under Article 159(2)(d) of the Constitution and the 'oxygen rule.' The applicant argued for unavoidable delay due to late discovery of the 2016 decision and external factors like the pandemic, while respondents opposed on grounds of inordinate delay and lack of legal basis for extension.
Holdings
- The court dismissed the application for judicial review with costs, finding no merits in the applicant's claims and rejecting the attempt to circumvent the doctrine of res judicata.
- The court concluded that granting leave to commence judicial review proceedings under Section 9(1) of the Fair Administrative Action Act would be futile, as it had previously ruled such leave unnecessary for the same facts and circumstances.
- The court determined that the applicant's delay in filing the judicial review application was inordinate and not sufficiently explained, as over a year and a quarter had elapsed between the submission of the complaint in August 2019 and the filing of the application in February 2022.
Remedies
- The court dismissed the application for judicial review without merits and ordered the applicant to bear the costs.
- The court ordered the applicant to pay the costs associated with the dismissed application.
Legal Principles
- The applicant argued that the objection proceedings were heard ex parte without notice, violating Articles 40 and 48 of the Constitution (right to fair hearing and access to court). The court acknowledged the constitutional relevance but found the delay in challenging the decision curable under Article 159(2)(d) insufficient to overcome res judicata.
- The court dismissed the application on the basis of res judicata, finding that a similar application involving the same parties and subject matter had already been determined in a prior ruling (2021) and was not subject to review or appeal. The applicant's attempt to circumvent this principle by invoking Section 9(1) of the Fair Administrative Action Act was deemed unsuccessful due to inordinate delay and lack of new evidence.
Precedent Name
- M'Aitimitu Kamau vs District Land Adjudication and Settlement Officer & another
- Aviation and Allied Workers Union vs KQ Ltd
- Nicholas Arap Korir Salat vs IEBC and 7 others
- Rep vs Kenya Revenue Authority, Exparte Stanley Mumbu Amuti
- Nyeri C.A.18 of 2013
- Belinda Murai and others vs Amos Wainaina
- Loita vs Kyumbu
- Republic vs Speaker of Nairobi City County Assembly and another exparte Evans Kidero
Cited Statute
- Civil Procedure Rules
- Law Reform Act
- Constitution of Kenya
- Fair Administrative Action Act 2015
Judge Name
C.K. Nzili
Passage Text
- In the premises I find no merits in the application herein. The same is dismissed with costs. Orders accordingly.
- There is however nothing new to explain the inordinate delay; further there is evidence a title deed was issued on December 5, 2017 to the applicant. He collected the same on December 5, 2017. The complaint letter was written close to two years on 21.8.2019. Between August 2019 and February 11, 2022 when the instant application was filed over a year and a quarter had elapsed. This delay in my view is inordinate and not sufficiently explained.
- It is also curious and strange that at the same time and in the same file the exparte applicant has filed a notice of motion of the even date seeking conservatory orders yet the same is not accompanied by any petition.