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ELCPartially AllowedMiscellaneous Judicial Review Application (leave) arising from Chamber Summons dated 16th August 2016· [2016] KEELC 293 (KLR)

Republic v National Irrigation Board through Manager Mwea Settlement Scheme Ex-parte Anthony Kinyua Warui [2016] KEELC 293 (KLR)

High Court of Kenya
14 October 2016
BOB.N. Olao
571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court allowed a rice farmer to challenge the termination of his irrigation licence, ruling that licence terminations must follow the rules and be supported by reasons.

What this practically means

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Executive summary

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The Ex-parte Applicant, Anthony Kinyua Warui, sought leave by Chamber Summons dated 16th August 2016 to bring judicial review proceedings to quash the Respondent's verdict of 22nd June 2016 terminating his licence over rice holding No. 1487 (B), which was awarded to the Interested party. The Applicant contended that he and his co-licencees were designated licencees of the one-acre holding, that he had not contravened the Irrigation Act to warrant cancellation, that the Respondent lacked power to terminate the licence, and that the termination was done without reasons, violating his rights. Olao J held that the Respondent's Advisory Committee does have jurisdiction to terminate licences under the Irrigation (National Irrigation Schemes) Regulations, but that such termination is governed by conditions stipulated in the Regulations. The court reasoned that if the licence was terminated without regard to the Act or without reasons, the court would be obliged to intervene and a prima facie case would be established. The court was satisfied that sufficient grounds for leave existed and granted leave to institute judicial review, directing that the Notice of Motion be filed within 21 days and served on the Respondent, the Interested party and affected persons within 14 days of filing, with an affidavit of service. The court declined to order a stay, since the licence had already been terminated, and directed that costs be in the Notice of Motion. The judge also observed that this application and Miscellaneous Judicial Review Applications Numbers 5 and 6 of 2016 arise from the same proceedings and may need consolidation at the appropriate time.

Key legal issues

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01

Jurisdiction of the Respondent's Advisory Committee to cancel licences under the Irrigation Act

Holding

The Committee has jurisdiction to terminate licences issued under the Irrigation Act, contrary to the Applicant's contention, but the termination must follow the conditions in the Regulations.

Reasoning

The court rejected the submission that the Advisory Committee lacked jurisdiction, holding that the Irrigation (National Irrigation Schemes) Regulations made under the Irrigation Act expressly empower the Respondent to issue and terminate licences. The court nonetheless noted that the Regulations stipulate conditions governing termination, so a termination without regard to the Act or without reasons would be vulnerable to judicial review.

p. 2
02

Whether the Applicant established sufficient grounds for leave to apply for judicial review

Holding

Leave was granted on the basis that if the termination was done without reasons or without regard to the Act, a prima facie case for judicial review would be made out.

Reasoning

The court reasoned that if the licence termination was effected without regard to the provisions of the Irrigation Act or for no reasons at all, the court would be obliged to intervene, and if the Applicant contravened no provisions warranting cancellation, a prima facie case exists. On that basis, sufficient grounds for leave were established, with directions for filing and service of the Notice of Motion.

p. 2

Legal principles established

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  • The Respondent has powers under the Irrigation (National Irrigation Schemes) Regulations to issue and terminate licences, but such termination must comply with conditions stipulated in the Regulations and be supported by reasons, failing which the High Court will intervene.

Court orders

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  1. 1.Leave granted to the Ex-parte Applicant to institute judicial review proceedings against the Respondent
  2. 2.Notice of Motion to be filed within 21 days in accordance with Rule 3(1) of Order 53 of the Civil Procedure Rules
  3. 3.Notice of Motion to be served upon the Respondent, the Interested party and all other affected persons within 14 days of filing
  4. 4.Ex-parte Applicant to file an affidavit stating who has been served with the Notice of Motion
  5. 5.Costs in the Notice of Motion

Authorities

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Legislation

  • Irrigation ActNot specified
  • Irrigation (National Irrigation Schemes) RegulationsNot specified
  • Civil Procedure RulesOrder 53 Rule 3(1)
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (judicial review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v National Irrigation Board through Manager Mwea Settlement Scheme Ex-parte Anthony Kinyua Warui [2016] KEELC 293 (KLR)", Case Analysis (2016). Miscellaneous Judicial Review Application (leave) arising from Chamber Summons dated 16th August 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/293/eng@2016-10-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.