REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  371 & 372 OF 2015

IN THE  MATTER  OF AN APPLICATION BY SYNER-CHEMIE  LIMITED FOR  LEAVE TO APPLY FOR JUDICIAL REVIEW   ORDERS OF CERTIORARI  AND MANDAMUS  AGAINST  THE PUBLIC  PROCUREMENT   ADMINISTRATIVE   REVIEW BOARD

AND

IN THE MATTER OF ARTICLES 10.22.23(3) (f), 47(1), 50(1) AND 165(6) & (7) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF PART III OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015

AND

IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT CHAPTER 26

AND

IN THE MATTER OF ORDER53 (1) OF THE CIVIL PROCEDURE RULES 2010

AND

IN THE MATTER OF SECTION 175(1) OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015

AND

IN THE MATTER OF THE TENDER FOR SUPPLY OF NON PHARMACEUTICALS (SURGICAL TUBES AND   CANNULAES) TENDER NO.  KEMSA /01T7/2015-2017 BY KENYA MEDICAL SUPPLIES AUTHORITY

BETWEEN

REPUBLIC…………………………………….................................APPLICANT     

VERSUS

PUBLIC PROCUREMENT                                                                                    

ADMINISTRATIVE REVIEW BOARD………...….......……………RESPONDENT

KENYA MEDICAL SUPPLIES AUTHORITY................1^ST INTERESTED PARTY

REVITAL HEALTHCARE (EPZ) LIMITED….............2^ND INTERESTED PARTY

ANOCMA  ENTERPRISES…………….….…..……...3^RD INTERESTED PARTY

SYNER- CHEMIE LIMITED ………….....…….…..…....EX-PARTE APPLICANT

RULING

1. This ruling determines the exparte applicant’s application dated 31st August 2016   which seeks for enlargement of time within which Judicial Review notice of motion application for substantive orders of certiorari   and mandamus   ought to have been filed, after lapse of the initial period granted by the court, and for extension of orders granted on 19^th August   2016   pending hearing and determination of the application herein. 

2. The application is supported  by the  grounds that on 19^th August  2016  this court did  grant to the  exparte applicant leave  to file  Judicial Review  Orders  of certiorari  and mandamus  within 10 days  and  that on 26^th August  2016, the applicant’s counsel’s inadvertently  filed a notice of  motion replicating the chamber summons which sought for leave to apply for   the  substantive Judicial Review  orders, instead of filing the substantive   motion.  That  the filing of notice of  motion for leave instead of  seeking for substantive  prayers   was an inadvertent error of the advocate for the applicant  which should not be visited upon the applicants; that this court  has  jurisdiction to enlarge time which lapsed due to that innocent error  since the  erroneous  application  was withdrawn; and that it is in  the interest of justice that the prayers sought  be  granted  since  no party  will be prejudiced  by the orders sought as  Section 175(1)  of  the Public Procurement And Asset Disposal Act, 2015 provides  for an automatic  stay  of execution upon Judicial Review  proceedings  being initiated  which, in this case, were filed in time  and without  any delay.

3. The supporting affidavit which is sworn  by Mr Mwaniki Gachuba advocate for the applicant  reiterated the grounds on the face of the application, while admitting that the error  in filing  a notice of motion for leave instead of notice of  motion for substantive  Judicial Review   orders  was occasioned  by their offices  and not the exparte applicant  who  should not be made to suffer  for the inadvertent  mistakes of their advocates  on record, and that they are now ready to file an appropriate notice  of  motion once  time granted  in the leave application is enlarged.

4. The  application is opposed by the 1^st  and  2^nd interested parties  who filed their grounds of opposition on 5^th September  2016  and  6^th September  2016  respectively.

5. According to the 1st interested party, the application   by the exparte applicant is misconceived, frivolous, devoid of merit, incompetent and malafides.  That although the exparte  applicant  was  granted leave  to apply for Judicial Review orders on 19^th August  2016, the exparte applicant never served on the 1^st interested party  any stay order or at all hence it proceeded with the procurement   of the goods herein.

6. Further, that the leave  granted lapsed on   29^th August  2016  since the  substantive  motion  was not filed within  the said  10 days  from 19^th August   2016.  That the Judicial Review proceedings ceased to  exist  when the applicant   failed to  file its  substantive notice of  motion within the timelines  provided  and that  there are no valid orders  in place for extension and  neither is there any valid notice of motion on record.  Further, that enlargement  of time for filing a substantive  notice of motion can only  be premised on  existing  valid orders; that Section 175(1) of the Public Procurement And Asset Disposal Act, 2015 is no longer  available to the  applicant; that the application is an  abuse of the court process  and that the  application has no merits  in law and fact and ought to be  dismissed  with costs.

7. In the 2^nd interested party’s  grounds of opposition, it is  contended that the applicant  having withdrawn  its application  dated  25^th August   2016, this court   became  functus officio; that the application  for enlargement of time is fatally defective  and  cannot be cured by  amendment  for the orders of  extension of time  sought by the applicant. 

8. That  Section 8  of the Law Reform Act,  Orders  53  of the Civil Procedure  Rules  2010 and Section  175(1) of  the Public Procurement and Asset Disposal Act, 2015 do not  provide  for the discretion of the court  to  grant an  extension of  time.

9. That the motion  application is  fatally  defective  and cannot be  cured by  amendment  for there is  no jurisdiction to extend time for  hearing of Judicial Review  application; that the issue  of Limitation is not a procedural technicality which can be  entertained  by application of Article  159(2)  of the Constitution; that in view of the special nature  of  Judicial Review  Orders and  the  limited jurisdiction provided by  statute   to the court, that upon withdrawal of the previous motion, the applicant’s  rights of Judicial Review   are extinguished  and cannot  be activated  by the court   for the same  would  be time  barred, for Section 175(1)  of  the Public Procurement And Asset Disposal Act, 2015 stipulates that   an application for Judicial  Review must  be filed within  14 days  of the decision made by  the respondent herein.

10. The parties also filed submissions which echo their respective positions as set out above.  They also filed their list of authorities for consideration by the court.

11. The application  was argued orally before me  on 7^th September  2016  with the parties’ advocates  agreeing  that the  ruling in Judicial Review  371/2016   to apply  to Judicial Review  372/2016  since the  two matters  are closely related.

12. In his submissions, Mr Gachuba  advocate for the  exparte applicant submitted that  the application dated  31^st August  2016    was necessitated  by mistakes   of counsel  who, on realization that  he had  filed  a wrong  application, panicked  and withdrew  the notice of motion instead of seeking leave  of court to amend the same.

13. Further, that his client   was keen to prosecute the substantive notice of motion because there is a public interest in the matter   in that a statutory body reduced the statutory period to less than 14 days which is illegal.

14. Further, that the error of the filing a  wrong application  was genuine,  inadvertent and not intended to mislead  the court, and that it  can be   excused  since courts  recognize  that advocates  make errors   which should not be  visited on the innocent litigants especially when  explained  by advocates themselves.  He relied on Remco Ltd Vs Mistry Jadva Parbat & Company Ltd [2002] IEA 227 and Order 50 Rule (6) of the Civil Procedure Rules and submitted that the court has powers to extend the period for filing of Judicial Review application where leave   was already granted.

15. Further  reliance  was placed  on  Kenya Bureau of Standards  Vs Kenya Maritime  Authority [2014] e KLR  where Mureithi J held that  the court has jurisdiction to  enlarge the  21 days after  grant of leave.

16. In addition, it was submitted that in Republic Vs District Land Registrar Thika [2014] e KLR the Honourable Korir J held that extension of time is in the interest of justice.

17. Further, Mr Gachuba submitted that none of the parties  would suffer  any prejudice since  Section 175(1)  of the Public Procurement And Asset Disposal Act, 2015 provides  for Judicial Review  to be  instituted within 14 days   and that there is  an automatic stay  of proceedings  until the court  makes a  determination under Subsection 3 of Section 175 of  the Public Procurement And Asset Disposal Act, 2015.  Reliance  was placed on Republic  V Public Procurement Administrative review Board & 2  Others  exparte  Noble  Gazes International  Ltd [2013] e KLR  where Majanja  J held at paragraph 16  that Section 100(1) of the then Act   was an automatic   stay of all proceedings   before the High Court.

18. It was further submitted that in  Republic V Public Procurement Administrative Review Board &  Others  exparte Avante  International  Technology [2013] e KLR , Odunga J  agreed with Majanja  J in the above  case that Section 100(1)  which is the same  as Section 175(1)  of  the Public Procurement And Asset Disposal Act, 2015 is an automatic  stay  until the court  makes a  substantive  determination of the matter.

19. Regarding  the grounds of opposition filed, it  was submitted that he served  the stay order on 22^nd August  2016  by way of an email send to the 1^st interested  party notifying  the Chief Executive Officer of the  order of  19^th August  2016  staying the  decisions  of the Public Procurement Administrative Review Board hence the   1^st  interested party    was aware of the stay orders and  therefore  any contracts  entered would be null and void.

20.  Further, that   a contract entered into after commencement of Judicial Review proceedings is of no effect.  Reliance    was placed on CA 24/2014 Justus   Kariuki Mate & another Vs Martin Nyaga Wambora & Another.

21. The applicant’s counsel also submitted that no party will suffer any prejudice as the court will settle   the issue of whether tenderers have 14 days to file submissions to the Board.  It was further submitted that the authorities filed by the 1st interested party do not address the Judicial Review proceedings and or whether the court can enlarge    time.

22. On whether the application is valid, the applicant’s counsel relied on Order 50 rule 6 of the Civil Procedure Rules and Section 63(e) of the Civil Procedure Act and submitted that although the orders granted lapsed on 29^th August 2016 there is an automatic stay until the court determines the substantive   motion.  That the error was a typing error which can be corrected.

23. In opposition to the applicant’s  counsel’s submissions, Mr Ogamba submitted, relying  on his grounds  of opposition and submissions filed  and asserted that once an application  was withdrawn, the  application for leave  and stay  orders went with that  withdrawal.  Further, that the jurisdiction of the court to sustain the motion was dependant   on the motion being filed within 10 days as granted.  That in this case, both the stay orders  and leave  lapsed on 29^th August  2016 hence the application before  this court is an application to  bring Judicial Review  proceedings based on Section  175(1)  of Public Procurement Asset Disposal Act which  must  be made within 14 days  of the  date  of the decision.  That since 14 days have lapsed, this court   has no power to grant leave to bring  Judicial Review  proceedings and that  therefore  there is  nothing   to extend.  Counsel urged the court  to dismiss  the application with costs.

24. On behalf of the 2^nd interested  party, Mr Mogambi associated  himself with the submissions by Mr Ogamba and emphasized  that the error  is not  a procedural technicality where Article  159(2) (d) of the Constitution applies and that  once the  application  was withdrawn  there is no application.

25. In a brief rejoinder, Mr Gachuba submitted that there was no failure to comply with orders but that the errors committed are curable   by enlargement of time to file the Judicial Review   notice of motion. Counsel for the exparte applicant further submitted that the withdrawal of the application was in respect of an erroneous notice of motion not the chamber application for leave to apply.

26.  That the 14  days  granted by Section  175 (1)  of the  Public Procurement Asset Disposal Act  have not lapsed since the Judicial Review  application for leave was filed within the 14 days set by the statute and that a  withdrawal of the erroneous  notice  of motion did not  bar the  applicant from  seeking time to file   a competent  application.

27. On  16^th September  2016, the date when this  ruling  was expected to be delivered,  this court  did hear  the parties advocates submissions  based on the  Court of Appeal decision in Paul  Mafwabi Wanyama  Vs The Chairman  Amagoro Land Disputes Tribunal CA 4/2013 which the court brought to the attention of the parties advocates as none of them had cited it.

28. In her submissions, Miss Chichi averred that the Mafwabi case  is   distinguishable from the present case on the grounds that:

29. The Civil Procedure  Act is  an Act  of Parliament  to make  provision for   procedure  in civil courts whereas the Law Reform Act  is an Act of Parliament  to effect  reforms  on the Law relating to civil action and  prerogative  writs. That the Law Reform Act therefore applies in reforms to the law relating to civil proceedings and Judicial Review proceedings as well.

30. Miss Chichi  also submitted that the  reform in the civil courts  are made  pursuant  to Section 81 of the Civil  Procedure  Act while  reforms in the Judicial  Review  procedure  are made  pursuant  to Article  47  of the Constitution  and the Fair Administrative  Actions  Act of  2015.

31. In addition, Miss Chichi  submitted  that Section 9(1)  of the Law Reform Act is clear  that the Rules of Court that it  contemplates  relate to procedure   in civil courts  which include procedures  where orders of Mandamus, certiorari and prohibition  are sought; with  Subsection  2 of  Section 9 providing  for  time for  filing of Judicial Review.

32. Miss Chichi submitted that the  cited case of Paul  Mafwabi Wanyama, Judicial Review is not in the preserve of  the Law Reform  Act but  also Articles 22,23, and  47  of the Constitution  and that  the Court of Appeal  decision  was made in 2014  whereas  in  2015.  That Parliament  enacted  the  Fair Administrative  Action Act  pursuant  to  Article  47  of the Constitution with  Section  4(b)  of the said Act empowering  the court to act in  accordance with Order  50 Rule  6 of the Civil Procedure  Rules.  That Section  5(2)  of the Fair Administrative  Action Act empowers  the exparte applicant to bring this  application under Sections 18(1) 89 and 95  of the Civil Procedure  Act and   Order  50  Rule (6) of the  Civil Procedure  Rules, 2010.

33. According to  Miss Chichi, Judicial  Review procedure  is now substantially  governed by Part III  of the Fair Administrative  Action Act 2015  and that the  said Act  being the  latter Act  of Parliament, it  amended  or repealed the provisions  of the Law  Reform Act.  Reliance   was placed on Martin Wanderi  and  19 Others  V Engineers  Registration  Board  of Kenya &  5 Others  where the court  held that   where provisions  of an earlier  Act, the latter  Act abrogates  the inconsistency  in the earlier  Act.

34. Further, that  under Section  11(1)  (i)  of the Fair Administrative  Action Act 2015, the court  has powers  to grant  any order that is  just and  equitable   including  temporary  relief  such as  the one sought  by the exparte  applicant in these proceedings.

35. In response   to Miss Chichi’s further submissions, Mr Ogamba counsel for  the interested  party submitted  that  the leave granted lapsed  after  10 days,  the moment  the  exparte  applicant failed to file the  substantive  motion within the period  granted and the moment  the notice of motion  erroneously  filed  was  withdrawn.  In his  view, the lapsing   of leave  means that the court was left with   no jurisdiction  to extend  what is not in existence because Section 175  of the  Public Procurement and  Asset  Disposal  Act is  couched  in Mandatory terms.

36. Further, that the Court of Appeal decision in Paul Mafwabi  Wanyama  case   was clear  that Judicial Review  is a special jurisdiction  governed by the Law  Reform  Act hence the reasons  why one  has to first  come court  to seek  and obtain leave before  instituting  Judicial Review  proceedings.

37. It  was  also submitted that the Rules governing  the procedure  in Judicial Review   proceedings  is Order  53  which does  not give   room to the court to  extend time and that once leave  is granted, time  starts running and  one action is dependent  on the other action.

38. According to Mr Ogamba, Article   23  of the Constitution and the  provisions  of the Law  Reform Act as well  as the Fair Administrative Action Act  presupposes  that one is  before  the court properly  and that  the court has the  jurisdiction to hear  you and grant the reliefs  sought. It was further submitted that the Law Reform Act   is what gives jurisdiction to court to hear Judicial Review proceedings and if the court does not have that jurisdiction, it cannot grant the reliefs sought by the parties.

39. According to Mr Ogamba, the  Paul Mafwabi Wanyama case  is so clear  that the  High Court  has no jurisdiction to enlarge  time and that   Judicial Review  proceedings being special  proceedings  in nature, the  court  could not  import  the provisions of Order  50 Rule  (6)  of the Civil Procedure   Rules  to enlarge time for  filing  the substantive  motion.

40. Mr Ogamba submitted  that the  application  herein seeks time to  file a  notice  of motion  out of time  but that  there  is no leave  which leave  expired  when the notice  of motion was withdrawn and in the absence of  any provision  for extension of time, the applicant’s  application for enlargement  of time  is misplaced.

41. It  was  submitted that the Fair Administrative  Action Act  2015  does not provide for extension of time  hence the applicant  is improperly  before  the court. Further, that Article 159(2) (d) of the Constitution is inapplicable because the issue at hand is not a technical error but a substantive jurisdictional error.

42. Mr Mugambi counsel for the 2^nd Interested Party submitted that he associates himself with submissions by Mr Ogamba and maintained that this court has no jurisdiction to entertain the application.

DETERMINATION

43. I have  anxiously considered  the application dated  31^st  August  2016, grounds in support thereof, the  supporting  affidavit,  grounds  of opposition  filed by the  1^st and  2^nd interested  parties, the written  as well as the oral submissions argued by all the parties  present  and supported by the authorities  which are  also filed  on record.

44. The issue for determination is whether the application lies and if so, whether it is merited.

45. According to the interested  parties, there is no jurisdiction to enlarge  time for  filing of Judicial Review  proceedings  and secondly, that the withdrawal of the erroneous  notice of motion  determined  the whole  proceedings  for Judicial Review   hence there is nothing  to be  determined  further  as this court  became  functus officio. The applicants counsel argued  otherwise.

46. On whether  or not the court has  the power  to enlarge  the time for  the filing  of an application  for Judicial  Review Orders, the applicant  approached this court  with an application for leave  to apply  for Judicial Review  Orders  and on  19^th August  2016  upon which the court  granted such  leave to apply.  The court also ordered the applicant to file and serve the substantive motion within 10 days from 19^th August 2016.

47. However, the applicant, instead of filing the substantive motion as ordered, filed a motion but whose prayers were a replica of the chamber summons for leave to apply.  In other words, there was no prayer for Judicial Review orders to issue pursuant to the leave granted.  It is  this court  that brought  to Mr Gachuba’s  attention the defects  in the applications in this matter and in JR 372/2016,  as  a consequence  of which he  withdrew the application  wrongly  filed  and lodged  this  application. The court did strike out the wrongly filed notice of motion in JR372/2016.

48. According to the  1^st and 2^nd interested  parties, Judicial Review proceedings  are special proceedings  commenced  under Section  8 and 9  of the Law Reform  Act, Order  53  of the Civil Procedure  Rules  and in this case, Section 175(1)  of the  Public Procurement Asset Disposal Act, 2015  which  latter provisions  set the period of initiating the Judicial Review application for leave to be 14 days from the date when the decision of the Review Board is made and that the above provisions of the law do not  provide for  enlargement of  the time fixed by statute or rule.

49. Section  175(1) of the  Public Procurement Asset Disposal Act, 2015  provides  that an aggrieved party  following  the decision of the  Review Board   must lodge Judicial Review  proceedings  within  14 days  from the date of the decision. The Act is silent on extension of any period for doing any act, upon expiry of the 14 days or any other period. Neither does the Law Reform Act provide for extension of the six months period under section 9 of the Act. Further, there is no specific provision under the Fair Administrative Action Act, 2015 for enlargement of any time.

50.  It is not in dispute  that the application for leave to apply for Judicial Review  orders  was  made by the exparte applicant within 14 days from the date of the decision by the  Review Board, and as a consequence, an automatic  stay of enforcement  of the decision took effect, pursuant to section 175(1) of the Public Procurement and Asset Disposal Act, 2015.

51. However, appropriate substantive motion was never filed within the time limits of 10 days given by the court and therefore, undoubtedly,  the leave as granted also lapsed automatically, on 29^th August,  2016.

52. I must  however  point out that the decisions in Udaykumar  Chandulal  Rayani & 4 Others Vs Charles  Thaiti [1997] e KLR  and Elegant   Colour  Labs Nairobi Ltd V HFCK Ltd & 2 Others [2010] e KLR  cited by the  1^st interested party are  quite  irrelevant and inapplicable  to the case  herein as they were referring to proceedings  relating to summons to enter appearance  and  which is  quite different  from the enlargement   of time   envisaged  under   Order 50 Rule 6 of the Civil Procedure Rules.

53. Similarly, the case of Julius Njoroge Muira Vs Harrison Kiambathi Mburu [2011] e KLR which concerned abated summons to enter appearance is not applicable to this case. The Macfoy Vs United  African  Limited  [1961] 3 ALL ER  1169 at  1172  is relevant as far as the argument that there being no leave, then no application for extension can lie.

54. I also find the decision on Zakaria  Okoth  Obado  Vs Edward  Akonyo Ayugi & Others  CA  7/2014   not applicable to this case  as the applicant  is not seeking for enlargement of time  to file an  application for leave to institute Judicial Review  proceedings  since such  application  for leave   was instituted  within  the  14 days  stipulated  in Section  175(1) of the Public Procurement Asset Disposal Act, 2015   following the decision rendered  by the Review Board on  5^th August  2016.

55. In my humble view, the question to be answered in this case is, whether, upon such leave as granted, in the absence  of a valid  Notice  of Motion  filed by  29^th August  2016, the period for filing  of such  proper  notice of motion  can  be enlarged  under Order 50(6)  of the  Civil Procedure Rules and or  Section  59  of the Interpretation and General Provisions Act, Cap 2 Laws  of  Kenya  as read with section 95 of the Civil Procedure Act as well as Section 63(e) of the Civil Procedure Act, in order  to permit the applicant to file  the Notice of Motion  within an enlarged  period.

56. There are two schools of thought on this issue.  The first is the school which propagates that no such enlargement of time   for filing of a substantive motion is envisaged in Order 53   of the Civil Procedure Rules.  The same  proponents  argue that owing to the special  procedure  adopted in Judicial Review  proceedings, a  party, other than  invoking Order  53  of the Civil Procedure Rules  cannot  invoke the  provisions of  the Civil Procedure Act  and the Rules made there under.  See Republic Vs Kahindi Nyafula  & 3  Others Exparte kilifi South East Farmers  Co- Operative  Society [2014] e KLR  by Angote J, applying Welamudi vs  The Chairman Electoral Commission  of Kenya  [2002] KLR  285  and Republic V Kenya  Bureau of Standards  & Others [2006] EA 345  wherein the Learned Judge held that:

“The law provides that the substantive motion seeking for prerogative   orders must be filed within 21 days.  The Law  Reform  Act, which is  the substantive  law dealing  with prerogative  orders, does not  provide  for the  enlargement  of time within which a  party should file the motion .

57.  In the case  of Ako of Ako Vs Special District  Commissioner  Kisumu & Another [1959] KLR 163  the Court of Appeal held  as follows:

“ The prohibition is statutory and absolute and is not therefore  challengeable  under the procedural provisions of the Civil Procedure  Rules,  more specifically Order 49 Rule  5 ( now  Order  50 Rule  6 ) which  makes  provisions for the  enlargement  of time”. Consequently, the provisions of  Order  50  Rule  6  of the Civil Procedure  Rules  which allows  enlargement  of time  by the court  for doing  of a particular act does not come to the  exparte applicant’s  aide,  neither  does Article  159(2) of the Constitution.”

58. Similarly in Njeru  Njagi Vs  Gabriel  Njue  Joseph & Honourable  Attorney General  [2015] e KLR, F. Muchemi J struck out  an application  which sought  to enlarge  time  for the filing of substantive   motion  for Judicial Review order out  of time although the applicant  had claimed  that his advocate fell ill  after obtaining  leave and  subsequently  passed  on hence, he was unable  to  file  the substantive  motion within  21 days.  The Judge  in rejecting  the application for enlargement  of time relied  on Republic Vs Kahindi Nyafula  & Others  & Kilifi  East Farmers Co-operative  Society (supra) and Eldoret  Judicial Review  Application 5/2014  John Kotut  Exparte  applicant Vs  Patrick Cheruiyot  & 3 Others. The court also relied  on the Court  of Appeal  decision in Civil Application  41 of 2013  Paul Mafwabi Wanyama  Vs Jacinta Papa & Amagoro Land  Disputes   Tribunal  where the Court of Appeal  was dealing  with  the application for setting aside  the  ruling of the Judge in Busia HCC Judicial Review  10/2010 where the court had  granted orders  for extension of leave  to file  Judicial Review  proceedings. In allowing the appeal, the court  of Appeal  held that:

“ The Judicial Review proceedings  before the Learned Judge, which have given  rise to this appeal, were  therefore  special  in nature  and the Learned Judge erred  in importing  provisions s  of the Civil Procedure  Act  and Rules to proceedings   governed  by the said  provisions  of the Law Reform Act   and Order 53  of the Civil Procedure Rules.  We  agree with  the learned  counsel for  the appellant that the  Learned Judge  erred in extending  time which  he had no  jurisdiction to do.  This appeal is therefore allowed with the consequences that the order extending time for filing Judicial Review proceedings is hereby set aside.  The applicant   shall have   costs of this appeal and costs of proceedings in the High Court.

59. The Learned Judge in the Njeru Njagi  Vs Gabriel Njue  Joseph & Another (supra)  case wholly  relied on the Paul Mafwabi Wanyama (supra) case in holding that Sections  95,1A, 1B and 63(e) and Order  50 Rule  6  of the Civil Procedure Act and Rules   were inapplicable  in Judicial Review  matters which are governed  by Sections 8 and 9 of the Law Reform  Act and  Order  53  of the Civil Procedure Rules.

60.  In my humble view, the  1^st and  2^nd interested parties belong to the above school and thought which firmly  believes  that the periods  stipulated  in Order  53  of the Civil Procedure  Rules for the   filing of  Judicial Review proceedings  cannot be enlarged where such  period lapses.

61. On the other hand, there is the second  school of thought which  supports the applicant’s  position that although the court has no jurisdiction  to enlarge  the six months period given by the Law Reform Act Cap 26 Laws of Kenya or section 175(1) of the Public Procurement and Asset Disposal Act stipulated  for the filing of an application for leave to apply for Judicial Review  orders, nonetheless, that once such  leave is  obtained within the statutory 6 months or such period as  may be set by statutory provisions like  in the  case of  Section  175  (1)  of the Public Procurement Asset Disposal Act , 2015 , then  such period for filing of the  substantive  motion can be  extended  where it  so lapses  before  the  substantive  Judicial Review  motion  is filed  and that therefore  Order 50 Rule  (6) of  the Civil Procedure Rules, Section 59  of Cap  2  as well as Section 95 of  the Civil Procedure  Act  and Article  159(2) (d) of the Constitution  are all applicable. Further, that these cited provisions confer jurisdiction on the court to enlarge time for the filing of the substantive motion, beyond the time stipulated by Order 53 of the Civil Procedure Rule or as may be set by the court.  This is what the court in Kenya  Bureau of  Standards & 3 Others Vs Maritime Authority  Exparte  Car Importers Association (supra) held that the court has  discretion  to enlarge the 21 days  period  for the filing of the notice of motion  upon grant of leave  to commence  Judicial Review proceedings ( per  Edward Muriithi J on 22^nd  September  2014 in Republic Vs District  Land Registrar  Thika Exparte  Stephen Kiongo  Kairu[2014] e KLR that extension  of time to file notice of motion is in the  interest of justice and in Remco Ltd V Mistry Jadia Parbat & Company Ltd  & Others (supra) where the court excused  a party for blunders  made by an advocate, to avoid  a party suffering the penalty  of not having  his case heard  on merits.

62. In Mahaja  V Khufwalo [1983] KLR 553,Hancox  JA ( as he then  was )  at page  561  held that  it could not have been intended that time  could not  be enlarged as follows;

“……Nonetheless, I would  hesitate  to reach  a finding that no power  of enlargement  of time  was   intended  to be given  in such cases, for there  are instances  in which to  deprive  the applicant of the right to  apply  therefore  would work definite  injustice.  Unless  persuaded  by cogent   argument to  the court to the contrary I would lean  against  an interpretation of the  subsection which  would impose  an absolute  time limit.  I derive  support for this view from Republic V London County Council Exparte  Swan  & Edgar[ 1927] Ltd [1929] 141 LT at page  579 where the  Divisional court held that  the Rules of the Supreme Court did  give power  to enlarge the time limit set by rule  21 of the  Crown Office Rules.”

63. Although  some courts  have applied  strict  interpretation regarding  extension   of time  within which  to file    the Judicial Review   notice of motion, in some  jurisdictions  like in the Federal courts of  the USA, if one  misses  a deadline  of filing  of Judicial Review  applications  as stipulated  in the statutes  for example  under Sections   41 of the Access  to Information Act, where  one has to file   Judicial Review  proceedings within 45 days, then one must  file a motion  for an extension of time in writing  and providing  an explanation  justifying  the extension  of time   as  was held in Stanfield   V Canada  paragraph 3  pursuant  to the Federal Courts  Rules  8 and  369, but that the parties cannot consent to extend a deadline imposed by legislation. 

64. From the rival positions presented to this court, the question is whether  this court, in the present  constitutional framework should  still let the  former  intricacies  and  obscurities  hamper   the provision  of effective  redress  to facilitate access to justice for all or should it adopt a flexible approach, which is not necessarily crafting or innovating its jurisdiction, but bearing in mind that much  of the old  case law  on the reach  of the Judicial Review  remedies  may not be of such practical relevance today. But because the Legislature has given no explicit direction on the issue, the Court must adopt the interpretation of the silent provisions that best effectuates the legislative intent.

65. In arriving at such a view, this court appreciates that Judicial  Review  has its  origin  in common  law which is still applicable in our statutes today (see section 12 of the Fair Administrative Action Act, 2015), and which is  judge made law, law made  by judges  in the  absence of   relevant   constitutional or statutory  provisions  (see Kenneth Culp Davis, Administrative  Law Treatise  2:18 at  140  2 ed  1978.

66. According to Professor Louis L Jaffe, Judicial Control of Administrative   Action 329 [1965]:

“Common law has been particularly prevalent in Judicial Review, an area that encompasses “a whole congeries of judicial theories and practices” which constitutes “ the common law of   review,” and which  is a significant  part of the administrative law of the jurisdiction. Accordingly, it is expected that where there is a specific statutory and constitutional provision on enactment, then those enactments must slowly replace the traditional common law doctrines.”

67. Professor Louis L.Jaffe was, however, quick to observe that “the change to embrace the new thinking will be slow and halting because of the doctrine of stare decisis as was observed by the  Court of Appeal in City Chemist (Nbi) & other vs.  Oriental Commercial Bank Ltd, Civil Application No. Nai. 302 of 2008 (Ur. 192/2008) held that:-

“…….that however, is not to say that the new thinking totally uproots well established principles or precedent in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice. On the contrary, the amendment enriches those principles and emboldens the court to be guided by a broad sense of justice and fairness as it applies the principles. The application of clear and unambiguous principles and precedents assist litigants and legal practitioners alike in determining with some measure of certainty the validity of claims long before they are instituted in court. It also guides the lower courts and maintains stability in the law and its application.”

68. In other words, although the rule of precedence  promotes certainty and predictability and  consistency in judicial decision making process, it has been argued and rightly so, that the doctrine hinders originality and precedent  setting, for  the  courts are unwilling to abandon their own  creations  and  their own notions  of good policy in favour of the statutory  law.

69. Nevertheless, with the new Constitution in place and its implementation through statutory law and judicial interpretation, my view is that courts in Kenya must take bold steps with renewed respect and responsibility for constitutionality rather than dangle on common law instincts.

70. Furthermore, in this case, the period being sought for enlargement for filing of the substantive motion was granted by the court out of the 21 days fixed by the Order 53 which uses the word ”shall” and which is a procedural Rule and not a substantive law. In the persuasive decision by the High Court of Uganda  at Kampala  sitting  at Kololo Miscellaneous Application No. 89/2009  between Dr James Akampumuza   & Another  Vs Makerere  \university  Business  School  & 2 Others, Honourable  Justice  Akiiki –Kiiza  considered  the provisions  of Rule  5(1) of the Judicature  (Judicial  Review)  Rules 2009 which provides:

“ 5(1) An application for Judicial Review  shall be  promptly  and in any event  within 3 months  from the date when  the grounds  of the application first arose, unless  the court considers   that there  is good  reason  for extending  the period   which  the application shall be made.”

71. Albeit  in the Kenyan Civil procedure  Rules, the Public Procurement and Asset Disposal Act and the Law Reform  Act as well as  the Fair Administrative  Action Act  there  is no  such proviso for enlargement of time,  the Court of Appeal in Sony Holdings Ltd v Registrar of Trade Marks & another [2015] eKLR considered at length the use of the words”shall” in a statute, and on whether the Registrar of Trade Marks had the discretion where the Statute used the word “shall” and had this to say:

“As was noted long ago by Tindal CJ in the Sussex Peerage case [1844] 11CI & Fin 85 in explaining the literal rule of statutory interpretation,

 “……the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case best declare the intention of the lawgiver.”

 The Rules (46 and 102) do not provide the consequences of failure to comply with the provisions but are only guidelines and directory. It follows that if the application for trade mark has not been opposed within sixty (60) days, then in terms of section 22 (1) (a), it is directed that the Registrar shall register the trade mark. He cannot, however, register a trade mark within a period less than sixty (60) days from the date of advertisement. It is, therefore, for the court to ascertain if Parliament or the Minister (in exercise of powers to make rules under section 41) intended the provisions to be mandatory, in which case failure to comply with them would render the act complained of null and void; or if the provisions are merely directory or permissible then non-compliance would only be an irregularity.

 It cannot, therefore, be overemphasized that while the court must rely on the language used in a statute or in the rules to give it proper construction, the primary purpose is to discern the intention of the Legislature (or Minister) in enacting or making of the provision. In Project Blue Sky Inc. Vs Australia Broadcasting Authority [1998] 194 CLR 355, the Australian High Court emphasized the thinking thus:-

 “…..a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory, whether there has been substantial compliance. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid…….. In determining the question of purpose, regard must be had to the language of the relevant and the scope and object of the whole statute.” (Emphasis added).

 Whether the words “shall” or “may” convey a mandatory obligation or are simply permissive, will depend on the context and the intention of the drafters. The Supreme Court in its advisory opinion In the Matter of the Principle of Gender Representation in The National Assembly and the Senate, Application No. 2 of 2012 found that, the use of “shall” in Article 81 (b) of the Constitution on the gender-equity rule as used in the context, incorporates the element of management discretion on the part of the responsible agency or agencies.”

72. In    David Njenga Ngugi v Attorney General [2016] eKLR the Court of Appeal  most recently, when considering whether the use of the word
“shall” in section13A of the Government Proceedings Act was mandatory or discretionary observed that:

 “12. The word “shall” is used in this section in relation to time for filing suit. The section prohibits filing of suit before the notice prescribed has run its course. The cannons of interpretation of statutes show that where the word “shall” is used, it connotes mandatoriness if it confers a power and a duty to act. It shows that the rule must be enforced. But like other statutes, the provisions of the Government Proceedings Act (Cap 40) must be construed so as to carry out the intention of Parliament. Read as a whole, nowhere does the Act manifest any intention to deprive an intending litigant of his/her cause of action on account of failure to fully comply with the Section 13A (supra)………

“The principles of construction of statutes show that where the use of the word “shall” in a statute does not confer a power and a duty to act, it is not imperative; it is directory. In the instant case, the use of the word “shall” in section 13A (supra) is clearly directory. It requires that no suit shall be instituted where a notice has not been given in compliance with the section. The right and power to sue does not spring from compliance with the section and, failure to fully comply with the section cannot hamper the right of a claimant to sue. As indicated above, the foundation of a tortious action against Government is in common law. It is clear that a suit that has been filed without full compliance with section 13A cannot be said to be incompetent nor can it be rightly struck out.

 Its competency or otherwise is dependent on considerations of section 13A (supra). It cannot be good law to hold that section 13A which is merely directory, can be regarded as imperative so as to render a competent suit incompetent for failure to fully comply with it.

 15. The learned Judge of the High Court in striking out the suit went into error. Procedural rules and directory provisions of the law even where their peremptoriness is clear and unambiguous cannot vitiate a cause of action and the right to sue. In the instant case, the use of the word “shall” in Section 13A (supra) does not import “mandatoriness”. It is directory and procedural. The appeal depicts the period prior to the 2010 Constitution. The 2010 Constitution now binds courts by dint of Article 159 (2) (d) in exercising judicial authority to administer justice without undue regard to procedural technicalities.

73. In Sitenda  Sebalu V Sam N. Njuba and the Electoral Commission of Uganda( Supreme Court of Uganda Election Petition  N. Petition  Appeal No. 26/2007 the learned judges held  that:

 “…the inherent powers of the court can be resorted to so as to extend   time, even where there is a law of limitation to an action.”

74. Their Lordships, further held that “although  the intention of Parliament  in setting  up time  limits was to ensure, in the public  interest, that disputes  concerning  election of the peoples’ representatives  are solved  without  undue  delay, that   was not the only  purpose  and  intention of the legislature.

75. Their Lordships went on to state that:

“ It cannot  be gainsaid that  the  purpose and intention of  the legislature  in setting  up an elaborate  system  for judicial  inquiry  with alleged electoral  malpractices…..was to ensure  equally  in the public   interest, that such allegations  are subjected to a fair trial  and determined  on merit.”

76. Their Lordships in the above persuasive case found that the court had jurisdiction to hear and determine the application to extend time, despite the time limits set up by the statute.

77. It must always be remembered that the mere fact that a rule applies the word “shall” does not make the said requirement mandatory since the mere use of the word “shall” cannot oust the jurisdiction of the Court. In Standard Chartered Bank Ltd. vs. Lucton (Kenya) Ltd. Nairobi (Milimani) HCCC No. 462 of 1997 Ringera, J (as he then was) held that the use of the word “shall” in a statute only signifies that the matter is prima facie mandatory and its use is not conclusive or decisive and it may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only.

78. The learned Judge stated:

“There appears to be a common belief by many in these courts that the use of the word “shall” in a statute makes the provision under construction a mandatory one in all circumstances. That belief is in my discernment of the law a fallacious one. As I understand the canons of statutory interpretation, the use of the word “shall” in a statute only signifies that the matter is prima facie mandatory. The use of the word is not conclusive or decisive. It may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only. As long ago as 1861, in the case of LIVERPOOL BOROUGH BANK V TURNER [1861] 30 L. J. Ch. 379, pp. 380-381, Lord Campbell had laid it down that; 

 “No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered”.

79. From the PRINCIPLES OF STATUTORY INTERPRETATION by Justice G.P. Singh, a former Chief Justice of Madhya Pradesh High Court in India, the following instructive passage appears at p. 242:-

“The use of word “shall” raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other consideration such as object and scope of the enactment and the consequences flowing from such construction. There are numerous cases where the word “shall” has, therefore, been construed as merely directory”.

80. In England, presently, whether the court extends time for filing of judicial review proceedings under Rule 3.1(2)(a) of the Civil Procedure Rules is a matter of discretion. Factors relevant to the exercise of discretion include the following, where:

(1) The Claimant reasonably did not know of the decision.

(2) The Claimant was pursuing alternative remedies.

(3) Delay in obtaining CLS funding.

(4) Hardship, prejudice and detriment to good administration.

(5) The merits of the claim and the importance of the issues.

81. In Canada, if  one misses the deadline for filing of an application for judicial review, one must file a motion for an extension of time in writing and provide an explanation justifying the extension of time (see Stanfield v. Canada at para. 3; Federal Courts Rules, rr. 8 and 369). This motion can also be heard orally if time is of the essence and if it is contested. If the Federal Court grants the motion for an extension of time, the registry will issue the  application. The parties cannot consent to extend a deadline imposed by legislation.

82. In my view, the above decisions are entitled to respect for reasons that strictly enforcing Order 53 of the Civil Procedure Rules as a mandatory requirement diminishes the ability of the citizen to seek relief against administrative or other bodies exercising judicial or quasi judicial authority and which this court has the constitutional mandate to supervise. see  Majanja J in Kenya Bus Service Ltd & Another v. Minister For Transport & 2 Others [2012] eKLR cited with approval in David Njenga Ngugi v Attorney General (supra) decided on 16^th July, 2016.

83. In addition, for the court to consider whether or not to enlarge the stringent specific timeline provided for in the rule, what it needs is to satisfy itself that there is no demonstrable prejudice caused to the adverse party because of delay, and whether refusal to enlarge time will occasion hardship and result in an injustice to the applicant. In my view, even if Order 50 Rule 6 of the Civil procedure Rules and Sections 63(e),  and 95 of the Civil procedure Act and Section 59 of the Interpretation and General provisions Act were inapplicable for purposes of enlarging time in this case, I would still invoke the Court’s inherent jurisdiction to ensure that justice is done to the parties since there is no prohibition for enlargement of time that is granted by the court as is the case herein. In this case, it is simply too early for that claim to be credible and I do not believe that the Rules Committee in enacting Order 53 of the civil Procedure Rules intended to preclude meritorious claims in these circumstances.  

84. In Raval V The Mombasa Hardware Ltd [1968] EA 392,the court in considering  inherent  jurisdiction of the court held that  the reason usually given  by the court for resorting to its  inherent  jurisdiction is to prevent  a miscarriage of justice, especially where  the defendant(respondent) is not  prejudiced  in any way if the court  extended  the time.

85. In the Republic  of Northern Ireland, under the provisions  of Order  53   which are  in parimateria with  the Kenyan Order 53, where  leave  has been granted  to file Judicial  Review  application, the substantive  motion  by way of an originating  motion  must be  filed and  issued   within  14 days  from the date  of leave  otherwise  the leave  granted  lapses  ( see Order 53 Rule  5(5)). And where  such leave  has lapsed, an application for extension of time or for a further  grant of leave  must  be made by summons and an  affidavit  explaining  the failure  to issue  and serve  the notice of motion in time.  The court may order costs against the party who has failed to comply with the time limits.

86. In my  humble view, although  Order 53 of the Civil Procedure Rules which relates to the procedure for the filing of Judicial Review proceedings does not  specifically  provide  for enlargement  of time, the  fact that  the Order and Rules thereunder are made under the Civil Procedure Act and Rules and that Order 50 Rule 6 of the Civil procedure Rules does not exclude the application of Order 53 thereof,  the court is given latitude  to either  invoke  its inherent  jurisdiction   to prevent  an injustice  or hardship being occasioned  to the parties, or to apply order  50 Rules 6  of the Civil Procedure  Rules  and  Sections 95  of the Civil Procedure Act, section 63(e) of the Civil Procedure Act  and Section  59 of the Interpretation AND General Provisions Act Cap 2 Laws  of Kenya and more importantly, Article 159(2)(d) of the Constitution in order to prevent an injustice being occasioned to an innocent party.

87. In M. MWENESI v. SHIRLEY LUCKHURST & ANOTHER, Civil Application No. NAI 170 of 2000, the Court of Appeal held that:

“ A Court of justice has no jurisdiction to do injustice and where injustice on a party to a judicial proceeding is apparent a court of law is under a duty to exercise its inherent power to prevent injustice……..”

88. In Bremer Vulcan Schiffbar and Maschinen fabrick Vs. South Indian Shipping Corporation Ltd [1981] AC 909, Lord Diplock in relation to the inherent powers of the High Court, typified such powers as enabling the court to take necessary actions to maintain its character as a court of justice. According to Lord Diplock,

 “It would dampen the constitutional role of a court if as a court of justice it were not armed with power to prevent its process being misused, in such a way as to diminish its capability to arrive at a just decision of the dispute.”

89. The Supreme Court of the United Kingdom in Pomiechowski v Powland [2012] UKSC 20 read down the absolute statutory time limit so as to make it compatible with Article 6 of the European Court of Human Rights.  See Lord Mance at para 39 that :

“In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky.”

90. The Supreme Court of England further in dealing with an appeal where the Court of Appeal in (Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 W.L.R 287.” (paragraph 24 of JI v HMRC) held that there was no provision in primary legislation that would permit the Civil Procedure Rules to extend the statutory time limit for appeals against extradition, analogous paragraph 4 of Schedule 5 of the 2007 Act, and further, where the Court was swayed by the strong policy reasons in favour of not permitting an extension of the time limit in extradition cases, with  Judge Rowland commenting in the Mucelli case that “I am not persuaded that any unfairness is such that I can read into the legislation provisions that are not there” (paragraph 25) was overruled by the Supreme Court on the ground that the case was wrongly decided and that the removal of the power to extend the time limit in tax credits cases cannot be a proportionate or legitimate restriction on the right of access to an independent Tribunal.[emphasis added]

91. In this case, the court acknowledges that the relevant statute, which is section 175(1) of the Public Procurement and Asset Disposal Act fixes the time for filing of the Judicial Review application for leave which is 14 days and once such leave is granted, then the provisions of Order 53 of the Civil procedure Rules on the filing of substantive motion comes into operation, which provides for a maximum of 21 days from the date when leave is granted. However, the court is also aware that the same statute and the applicable rules made under the Order 53 of the Civil Procedure Rules do not prohibit extension of the 21 days within which the substantive motion should be filed where there is lapse after leave is granted. In the circumstances, I find that the Supreme Court of England in the above cited case of  Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 W.L.R 287 though persuasive but good law and therefore applicable in the circumstances of this case.

92. This court granted to the applicant ten days for the filing of the motion. Therefore, did this court retain any residual power to enlarge that time as fixed by the Court? The jurisdiction of the Court to extend time fixed by the Court even where there is a default clause was considered by the Court of Appeal in Caltex Oil (K) Limited v Rono Limited - Civil Appeal/Application No. 97 of 2008 (unreported) where the Court stated in part that:

 “However the fact that a default clause has been imposed by a court does not necessarily deprive a court of its jurisdiction to extend time. As a general principle, where the court fixes time for doing a thing it always retains power to extend time for doing the act until it has made an order finally disposing of the proceedings before it. It seems that the main test is whether the Court still retains control of the order, notwithstanding that there has been default. That would necessarily depend on the true construction of the default clause.”

93. In this case, the court by granting 10 days out of the stipulated 21 days in my view and on the above decisions considered, and in the interest of justice, still retained the control of the order, to enlarge time in the event of default.

94. The Court of Appeal in Syombua Muli Mutuva v Charles A.K. Mulela [2014] eKLR applied the above Caltex Oil (K) (supra) case and held, applying section 59 of the Interpretation and General Provisions Act Cap 2 Laws of Kenya that:

 “The Court is not functus officio as regards the default clause and therefore, has power to extend time notwithstanding the wording of the default clause.

95. In my humble view, if enlargement of time in applications of this nature were excluded in the application of Order 53 of the Civil procedure Rules, the Court’s capability to do justice to the parties would be substantially diminished, in view of the glaring fact that the relevant statutory provisions do not prohibit the granting of extension of such time. In addition, although Order 53 of the Civil Procedure Rules uses the word “shall be filed within 21 days,” the Supreme Court very recently in the case of Deynes Muriithi & 4 others v Law Society of Kenya & another [2016] eKLR, applying the decision by the High Court at Kisii in Peter Ochara Anam & 3 Others v. Constituencies Development Fund Board & 4 Others, Constitutional Petition No. 3 of 2010; [2011] eKLR,  found that the particular issue, though occurring in a constitutional petition, which was neither civil nor criminal, was civil in nature.  It thus held:

“In as much as the Constitutional petition is a special jurisdiction, it is in the nature of civil proceedings. In the absence of rules made thereunder, the procedure of handling such a petition must be akin to civil proceedings. It cannot be that merely because it is a special jurisdiction, the rules of evidence for instance should not apply, be ignored nor witnesses should not be sworn, pleadings should not be signed and questions in cross-examination should not be asked. That will be a direct invitation to judicial chaos and legal absurdity.  I do not therefore wholly agree or subscribe to the submissions of the petitioners that the petition being neither a criminal nor civil proceedings, it must be conducted in vacuum” [emphasis supplied by the Supreme Court].

[37] The Supreme Court in the above matter stated that:

“It is evident to us that appeals dealing with constitutional issues, May in substance be civil in nature. Accordingly, the Court of Appeal has the power to exercise its original and discretionary jurisdiction to entertain interlocutory applications to preserve the subject matter of any appeals.”

96. Applying the above principles, to this case, in my humble view, the decision  in the Paul Mafwabi Wanyama  (supra) case which was  decided  before  enactment  of the Fair Administrative  Action Act,2015 and before the reasoning in the Deynes Muriithi Supreme Court case decided on March, 16^th 2016  has to be distinguished  with the  circumstances  of this case,  in the sense   that any matter  like  the present  matter  of Judicial  Review, which is based on constitutional  imperatives fundamentally alters Judicial Review  as traditionally and formerly  known  in common law legal circles.

97. With the enactment of Fair Administrative  Action Act, 2015 which Act implements Article 47 of the Constitution to give effect to the right to fair administrative action,  the above  Act effectively modifies  the Law Reform  Act  and Order 53 of the Civil procedure Rules on flexibility in the application of the law to the circumstances  of a particular  case,  with  the sole intention of  achieving  substantive  justice for the  parties  and especially where  no prejudice  is shown  to be occasioned to the respondents or interested  parties herein.

98. In my modest view, no statute can be enacted with the sole intention of doing an injustice to parties.  Article 47 of the constitution elevates fair administrative action from a common law action to a constitutional right under the Bill of rights.  The same position applies to Article 48 of the Constitution which commands the state to ensure that all persons are facilitated to access justice without any impediments.

99. Further, Article 20(3) (a) of the Constitution commands that in applying a provision of the Bill of Rights like in this case Article 47 of the Constitution on the right to fair administrative action which is invoked by the exparte applicant in this case, a court should ‘develop the law to the extent that it does not give effect to a right or fundamental freedom’, and to ‘adopt the interpretation that most favours the enforcement of a right or fundamental freedom.” [Emphasis added].in my view, it would hamper the enforcement of the right to administrative action if the law Reform Act and Order 53 of the Civil Procedure Rules were strictly  interpreted to exclude any room for enlargement of time where there is sufficient cause shown by the party applying for such enlargement of time.

100. In addition, Article  159 of the Constitution is clear that  judicial authority  is derived  from the people   and vests in  and shall be  exercised   by the courts  and tribunals  established by or under the Constitution.  In my humble view, the people of Kenya  in enacting  the Constitution and in enshrining therein Articles 10, 20,47, 48 and 159 among other Articles did not envisage a situation where a statute like the Law Reform Act  which has  remained inert since 1956 for nearly  60 years, would override the principles enshrined in the Constitution promulgated in 2010 and in the statutes implementing it, having  regard to the history of this country where most statutes which were enacted during the colonial period were with the intention of  protecting the crown and not to do justice to the subjects, and it is for that reason, in my view, that the Judicial Review Orders were then very limited, known as prerogative writs or orders issued in the name of the crown and not as Judicial review orders as are known today.

101. In the current constitutional dispensation, the  courts  in interpreting  any Statute  or Rule must ensure   that  the purposes, values  and principles  of  the Constitution are protected  and  promoted and that is the task that I have undertaken in this matter. It would be surprising to find that the origin of the Judicial Review remedies which is in England, permits the extension of time whereas in Kenya, we are still stuck to the stringent interpretation of a rule that was meant to curtail aggrieved Africans from seeking Justice, by placing stringent timelines, knowing that courts were few and quite far away and removed from where the aggrieved persons lived, at the time when Order 53 and the Law Reform Act were enacted, on 31^st January, 1924 and 1956 respectively.

102. In addition, unlike in private law, a claim for judicial review in England and before the 2010 Constitution in Kenya vide Article 47 could not be made as of right. A claimant must apply for permission to bring a claim for judicial review. Strictly speaking, that is not the with Article 47 of the Constitution which is implemented through the Fair Administrative Action Act, 2015.The stringent requirement is designed to filter out claims which are groundless or hopeless at an early stage. The purpose is:

“…to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which public… authorities might be left…” per Lord Diplock in R v IRC, Ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 643.”

103. Further,  Article  10 of the  Constitution of Kenya  espouses  the  national  values  and principles   of governance  and which values  and principles  bind  all state organs, state  officers, public  officers  and all persons whenever any of them applies or interprets the Constitution, enacts or interprets the Constitution and enacts, applies  or interprets any law or makes or  implements public  policy decisions. Therefore, the Law Reform Act and Order 53 of the Civil procedure Act must be subjected to the same rigours as stipulated in Article 10 of the Constitution.

104. Furthermore, a rule  like in this case Order 53 of the Civil procedure Rules which  is subject to  legislation and the Constitution cannot  be given  such a strict interpretation as to cause hardship and occasion  an injustice  even when the  Constitution  which is  the supreme  law of the land allows  itself   to be interpreted  in a supple  way  as espoused  in Article  259 of  the Constitution.

105. I reiterate that Fair Administrative Action Act is the latter legislation which implements the Bill of rights under   Article 47 directly and therefore it supersedes the Law Reform Act and Order 53 of the Civil Procedure Rules. In Judicial Services Commission Vs Mbalu Mutava & Another [2015] e KLR CA 52/2014 the Court of Appeal held, inter alia that:

“ Article  47(1) marks an  important  and  transformative  development   of administrative   justice  for, it not  only lays  a constitutional  foundation for control of the powers of state organs and other administrative  bodies, but also  entrenches  the right to fair administrative action in the Bill of rights.  The right to fair administrative  action is a reflection of some of the  national values  in Article  10  of the Constitution  such as  the rule  of law,  human dignity, social  justice, good governance, transparency and accountability.  The  administrative  actions of  public officers, state  organs  and other  administrative   bodies  are now subjected by Article 47(1) to  the principle of   constitutionality  rather than  to the doctrine of ultra vires from  which administrative  law under  common law   was developed.”

106. Therefore, as correctly submitted by counsel for  the applicant Miss Chichi, the Law Reform Act  which  was  assented  to on  17^th December  1956  and  commenced  operations  on 18^th December 1956 is an Act  of Parliament  to effect reforms  in the law relating to civil actions and prerogative  writs.  And with the  prerogative writs now having been converted into constitutionally  recognized  remedies for violation of the right to fair administrative action,, and with Sections 9 of the Law  Reform Act  providing  that the power  to make rules of court to provide  for any matters  relating to the procedure  of  civil courts   shall include  the power to  make  rules of court- prescribing  the procedure  and the fees payable  on documents filed; in the view of this court, Order  53  of the  Civil Procedure  Rules   being part of  the Civil  Procedure  Act cannot be read  exclusive  of other Rules under the Act. If that was the case, nothing prevented the drafters of the Civil Procedure Act and Rules excluding the applicability of order 53 and the provisions of Sections 8 and 9 of the LAW Reform Act to the Civil procedure Act and Rules.

107. Section 10(1) of The Fair Administrative  Action Act, 2015  eschews  undue  regard to procedural  technicalities in Judicial Review Applications which essentially echoes  the language  of Article  159 of the Constitution and in my humble  view, in recognition that Judicial Review is a tool  in defence  of the Bill of Rights.  Thus, the Constitution  of Kenya  2010  demands that  formalities  relating to proceedings  to enforce   the Bill of Rights (and  the right  to fair administrative action) which is a right  guaranteed  by the constitutions shall  be kept  to a minimum, and therefore  the courts  shall in appropriate  cases  even entertain  cases of proceedings on the basis of informal  documentation   as stipulated in Article  22(3)  (b) of the Constitution.  Judicial review is now regarded as an important pillar in vindicating the rule of law and constitutionalism.

108. In addition, the Chief Justice is empowered under Section 10(2)   of the Fair Administrative Action Act to make rules regulating the procedure and practice in matters of Judicial Review.  Until those Rules and Regulations  are made, and with the Fair Administrative  Action Act having  effectively  amended the Law Reform  Act with regard  to any strict  interpretation  regarding the issue of  Judicial Review Orders, this court is  persuaded that the provisions of Order 50 Rule 6 of the Civil  Procedure Rules as read with Sections 95 of the Civil Procedure Act and Section 59 of the Interpretation and General provisions Act Cap  2 Laws of Kenya as well as Article 159(2)(d) of the Constitution are  applicable to this case, with the elevation of fair administrative action to a fundamental right espoused in the Constitution, whose remedy is Judicial review.

109. Under Section 59 of the Interpretation and General  Provisions Act, where in a written  law a time is prescribed  for doing an act  or taking   a proceeding, and power is given to a  court to other  authority  to extend  that time, then, unless  a contrary  intention appears, the power may be  exercised by the court or other  authority although the application for  extension is not made  until after the  expiration of the time prescribed.

110. Under Section 95  of the Civil Procedure  Act, where any  period is fixed  or granted by the court  for the doing  of any act  prescribed  or allowed  by this Act, the court  may in its  discretion, from time to time, enlarge such period, even though the period  originally  fixed or granted have expired.

111. On the other hand, Order 50 Rule (6)  of the Civil Procedure  Rules  in clear  that where  a limited time  has been  fixed for   doing any act  or taking  any proceeding  under these  Rules ( without exception), or by summary notice or by order of the court, the court shall have power to enlarge  such time  upon such terms ( if any) as a justice  of the case may  require, and such enlargement  may be  ordered  although  the application for the same  is not  made  until  after the  expiration  of the time  appointed or allowed:

Provided  that the costs of any application  to extend  such time  and of any  order made  therein shall be  borne  by the parties s making such application, unless the court orders  otherwise.

112. By virtue of the fact that Judicial Review is now a constitutional tool for  the vindication of fundamental  rights and freedoms, more specifically, the right  to fair administrative action, in my humble  view, any  conflict  between the Law Reform Act  in Sections  8 and  9  and the Fair Administrative  Action Act , 2015  must be  resolved  in favour of the  latter Act  which directly  implements  the constitutionally  guaranteed right  since  Article  47(3)  of the Constitution  is what  reflects  the will of the  people   of Kenya and therefore  in applying Sections 8 and 9  of the Law Reform Act, the  court must  interpret those sections  with the  alterations, adaptations, qualifications and exceptions  necessary  to bring it into conformity   with  the Constitution, as   stipulated  in Section 7(1)  of the Sixth Schedule to the Constitution, until the said  provisions  are amended as appropriate.

113. Although  it   was contended  that  this court  has no jurisdiction to  enlarge time as the leave granted  lapsed, the provisions  of Section 95  of Civil Procedure Act, Section  59 of  Interpretation and General Provisions  Act Cap 2  as well as  Order  50 Rule  6 of the Civil Procedure Rules are  clear  that such  application  for leave can be  made even  after expiry  of the period  of doing any  act or taking  the proceeding for  which leave   was granted.

114. In Gateway Insurance Company Ltd Vs  Avies Auto Sprays [2011] e KLR the Court of Appeal  citing with  approval several cases including  Periagami Asari V Illupur  Penchayert  Board AIR 1973  Mad 250 dealing with the rule identical  to Order  50 Rule  6 of the Civil Procedure  Rules  where it   was held that;

“ The principle  that when the effect  of the order  granting  time in the  event of non compliance has to  operate  automatically the court has  no power to extend time as it becomes  functus officio, will apply when  the suit  is finally disposed of.  If the order is not final and the court retains control over it and seized of the matter, it will have power to extend time.”

115. And in Gogardhan V Barsati AIR 1972 ALL 246, dealing with similar provision to Order 50 Rule 6 of Civil Procedure Rule, it was held that:

“ Even  in cases where an  order is made  by the court  for doing a  thing within a  particular  time and   order further  provide that the application, a suit   or appeal  shall stand  dismissed, if the thing is  not done,  within the time fixed, the  court has  jurisdiction, if sufficient  cause is made out, to extend the time even  when the application  for extension of time is made  after the expiry of the time fixed.  It is not the application for grant of further time, whether made before or after the expiry of the rime granted, which confers jurisdiction on the court.”

116. In this case, the court notes that the applicant lodged the application within the time stipulated in section 175(1) of the Public Procurement and Asset Disposal Act, 2015, which is 14 days from the date when the Review Board made its decision.  The applicant was then granted leave to file Judicial Review notice of notion within 10 days from 19^th August 2016.  The  applicant’s  counsel, however, inadvertently  filed notice  of motion within  the said  10 days but the  orders  sought were a replica  of the orders  sought in the application for leave to apply.  Admittedly, the advocate panicked and withdrew  the defective  application and  filed the application for enlargement  of time to file  a  proper  applications  by which time  the 10 days  had lapsed. This was after the court had struck out the similar defective motion in JR372 of 2016. The stay granted did lapse with the leave.  However, in view of the finding of  this court  that  it has  the power  to enlarge  such time, I hold that  the  court has  the power to order  for stay of enforcement of the decision of the Public  Procurement   Administrative   Review Board.

117. The applicant’s counsel was diligent in bringing this application timeously.  His admitted mistake should not be visited on his innocent client who has a constitutional right to access justice.

118. Accordingly, I find the application as filed merited.  I grant the  orders  enlarging  time within  which  the substantive  notice of motion ought to have  been filed  by a further  7 days  from  the date  of this ruling.  I further order that there shall be  stay of  enforcement  of the  impugned  decision  of the Public  Procurement   Administrative   Review Board  until the substantive  motion if filed is  heard and determined. 

119. As agreed among the parties, this ruling in JR 371 of 2016 shall apply to JR 372 of 2016 with necessary modifications as to the parties.

120. The interested parties shall have costs of this application.  The Respondent and Interested parties to file their responses within 7 days from   date of service.  Mention on 7^th October 2016 for directions.

Dated and signed and delivered at Nairobi this 23^rd day of September 2016.

R.E. ABURILI

JUDGE