Simel & others v County Council of Narok
High Court, at Nairobi April 11, 1994
Miscellaneous Application No 361 of 1994
Judicial Review – application for judicial review – amendments to order LIII rules 1 and 2 of the Civil Procedure Rules – object of the amendments – nature of provisions under order LIII – legality of amendments to rule 1 and 2 of order LIII – whether leave of the court is a prerequisite to an application for judicial review – whether the Court can enlarge the six month limitation period to apply for judicial review – sections 8 and 9 of the Law Reform Act (cap 26)
Statutes – amendment of statutes – amendment by Rules Committee under section 81 of the Civil Procedure Act – where the amendments conflict with express provisions of the Law Reform Act – which law supercedes the other.
The applicants sought leave to apply for judicial review outside the period of six months within which the application ought to have been made. They relied on an amendment to order LIII rules (1) and (2) of the Civil Procedure Rules allowing the Court to enlarge the requisite six-month period and making it possible to apply for judicial review without leave of the court.
The applicants also relied on order XLIX rule 5 to urge the Court to extend the six months period . Rule 3A of the same order was also cited to reduce the period of computation of time when the six months would run.
In determining the matter, the Court contrasted the said amendments and authorities relied on by the applicants with the provisions of the Law Reform Act providing for the six months limitation period.
1. The object of deleting order LIII rules 1 and 2 of the Civil Procedure Rules and inserting new rules in their place was to provide that an application for judicial review could be brought without leave of the court.
2. The provisions of order LIII are the procedural rules of the court made
under section 9 of the Law Reform Act. Section 8(1) of that Act enjoined that the High Court in the exercise of its civil or criminal jurisdiction not to issue any order or prerogative writs of mandamus, prohibition or certiorari.
3. However, section 8(2) of the Law reform Act provided that the High Court shall have power to make a like order as the High Court in England which is empowered to make an order of mandamus, prohibition or certiorari by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act 1938 of the United Kingdom.
4. Under section 9(1) (b) of the Law Reform Act the Rules Committee set up under section 81 of the Civil Procedure Act is empowered to make rules of court requiring, inter alia, except in such cases as may be specified in the Rules, that leave shall be obtained before an application is made for any order for mandamus, prohibition or certiorari.
5. The amendment to order LIII had been declared by the High Court to be ultra vires the Law Reform Act section 9(1) and consequently, the original rule 1 of order LIII still stood and leave of the court was necessary before any application is made for an order of judicial review.
6. The Law Reform Act is an Act of Parliament which has in its wisdom laid down the absolute period of six months within which an application such as the present one may be made. It emphasizes that this six months period may be shortened which by implication means that it cannot be enlarged.
7. The present rule 2 of order LIII empowering the Court to extend the six month period is in direct conflict with section 9 of the Law Reform Act and is ultra vires that section of the Act. The rule cannot go outside the absolute period of six months laid down by the Act.
8. Rule 5 of order XLIX says in pare materia that where a limited time has been fixed for doing any act or taking any proceedings under the Civil Procedure Rules or by summary notice or by an order of the Court, the Court shall have power to enlarge time upon such terms (if any) as the justice of the case may require.
9. Under the English procedure, the Court may extend the time under order III rule 5 which corresponds with our order XLIX rule 5. However, the wording of section 9 (2) and (3) of the Law Reform Act is so strongly prohibitive that it cannot be disregarded and the Court cannot follow the English procedure.
10. The Court cannot invoke rule 5 of order XLIX to supersede the express provisions of the Law Reform Act. In this case, an absolute six month period has been laid down by the Act and the Court cannot enlarge that time by virtue of order XLIX rule 5.
11. Order XLIX rule 3A is a piece of delegated legislation. It cannot have the effect of amending express provisions of section 9(2) and (3) of the Law Reform Act. The said provisions of the Act can only be altered or amended by an Act of Parliament.
12. (Obiter) The duty of a Court is to expound what the law is and not what in view of social changes it should be. To change the law according to social dictates is the function of the Legislature.
Gideon Waweru Githunguri, Re an Application by  EA 520
1. Civil Procedure Rules (cap 21 Sub Leg) order XLIX rules 3A, 5; order LIII rules 1, 2
2. Law Reform Act (cap 26) sections 8(1)(2); 9(1)(b), (2) (3)
3. Administration of Justice (Miscellaneous Provisions) Act, 1938 [UK] section 7
4. Civil Procedure Act (cap 21) section 81
5. Civil Procedure Rules [UK] order 3 rule 5
6. Constitution of Kenya section 64(4)
Mr Mwenesi for the Applicants
Mr Odero & Mrs Nganga for the Respondents