1.Philip Kiptala Chebon, the Applicant herein, filed the chamber summons dated 2nd February, 2022 seeking leave to commence Judicial Review Proceedings against the decision of the Deputy County Commissioner, Baringo Central Sub-County (the 1st respondent herein) made on 30th May 2019, out of time. The applicant also seeks stay of execution of the decision pending the hearing and determination of the intended Judicial Review Proceedings. In particular, the applicant seeks leave to apply for Judicial Review orders of Certiorari and Prohibition of the decision of the 1st respondent made in case No.201 of 2014 restraining him from claiming plot No.1264 Salawa Adjudication Section.
2.The application is premised on the grounds that the 1st respondent allowed the interested party’s appeal in Land Case No.201 of 2014; that in allowing the appeal, the 1st respondent misapplied the principles of law by introducing new parcel No.1263 which was not subject of the dispute at the Committee stages; that the 1st respondent failed to understand the issues involved thereby arriving at the wrong finding to the ex parte applicant’s deteriment; that the delay in filing for leave to institute Judicial Review Proceedings was occasioned by the ex parte applicant’s previous counsel who misadvised the ex parte applicant to file an ordinary suit instead of applying for Judicial Review; that the ex parte applicant’s suit was dismissed preliminarily on 4th March 2021; that the ex parte applicant applied for certified copies of proceedings in order to pursue the next course of action; that there was delay in supply of the typed proceedings as they were supplied on 14th September 2021; that upon obtaining the proceedings, the ex parte applicant sought advice from his current advocate who advised him to seek leave to apply for Judicial Review out of time; that the delay in applying for Judicial Review was not intentional; that there is an error apparent on the record of the 1st respondent and that no prejudice will be occasioned on the interested party if the application is allowed.
3.Neither the respondents nor the interested party filed a response to the application.
4.The instant application being one for leave to apply for Judicial Review out of time, the sole issue for determination is whether the applicant has made a case for being granted the orders sought.
5.The question as to whether a court has jurisdiction to grant leave to commence Judicial Review out of time was considered in the case of Peter Orego Migiro (Suing on behalf of the late Christopher Orenge Makori) v. Samwel Omagwa James & 2 Others (2022)eKLR where it was stated:-
6.In that case, the court referred to the case of Republic v Kenya Revenue Authority Ex-parte Stanley Mombo Amuti (2018) eKLR where it was stated:-
7.In Republic v Speaker of the Senate & Another ex parte Afrison Export Import Limited & Another (2014) eKLR it was stated that court decisions should boldly recognize the Constitution as the basis for Judicial Review; that court decisions should boldly recognize access to courts as a fundamental right guaranteed under the Constitution which can only be limited in a manner that can pass constitutional muster; that it is a constitutional dictate that in applying the Bill of Rights, a court shall develop the law to the extent that it does not give effect to a right or fundamental freedom and adopt the interpretation that most favours the enforcement of a right or fundamental freedom. Concerning developing the law, the court stated:-
8.In the case of National Social Security Limited v Sokomanja Limited (2021 eKLR it was observed: -
9.It is clear from the above decisions that the scope of Judicial Review is no longer confined to the legal framework under the Law Reform Act and Order 53 of the Civil Procedure Act but is now entrenched in the Constitution and the Fair Administrative Act. Be that as it may, if one opts to file an application for Judicial Review under the Law Reform Act and Order 53 of the Civil Procedure Rules, he must apply for leave within six months of the decision as the court has no discretion to enlarge time within which to file the application for leave. In this regard, see the case Wilson Osolo v John Ojiambo Ochola & Another 1995 eKLR where the Court of Appeal stated: -
10.In the case of Republic vs Mwangi Nguyai & 3 Others ex-parte Haru Nguyai, High Court at Nairobi, Constitutional & Judicial Review Division, Miscellaneous Application No. 89 of 2008 it was stated:-
11.In Rosaline Tubei & 8 others vs. Patrick K. Cheruiyot & 3 others (2014) e KLR the court stated: -
12.In the above case, Rosaline Tubei (supra) it was further stated:-
13.In applying the principles enunciated in the cases cited herein above to the circumstances of this case where the applicant has moved the court under Order 53 of the Civil Procedure Rules among other provisions of the law and on the strength of the persuasive decision of Rosaline Tubei & 8 Others supra, I find and hold that this court has no jurisdiction to extend time to grant the orders sought by the applicant.
14.The upshot of the foregoing determination is that the application is found to be lacking in merits and dismissed with no orders as to costs as it is unopposed.