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ELCDismissedJudicial Review application, Notice of Motion dated 18th December 2015· [2019] KEELC 916 (KLR)

Republic v National Irrigation Board & another; Felicita Micere Cubi & 2 others (Interested Parties) Chubi Kangangi Ex Parte [2019] KEELC 916 (KLR)

Environment and Land Court
4 October 2019
1,238 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Mwea rice farmer lost his court challenge because the dispute committee had heard him fairly and had already implemented its land-sharing decision.

What this practically means

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Executive summary

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The Ex-parte Applicant, a tenant of Rice Holding Number 1972 Mwea Section Unit M 15, moved the Court by Notice of Motion dated 18th December 2015 under Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, seeking certiorari to quash a decision of the Respondents dated 10th July 2015 and prohibition against unlawful alteration of the ownership records of his rice holding. His case was that he was summoned before the Disputes Arbitration Committee on 9th July 2015, where the Interested Parties demanded a share of his holding, and that the Committee subsequently directed the holding be divided into three portions and leased part of it to strangers; he contended the award was ultra vires the rules governing the Irrigation Scheme. The Respondents maintained the applicant was present and fairly heard, and that the holding was equitably distributed for the benefit of his dependants in accordance with the Irrigation Act. The Interested Parties sought striking out of the suit and relied on the Committee's resolution allotting 1.5 acres to each of two houses, with licences issued. The Court framed two issues: whether certiorari and whether prohibition could issue. Applying the Court of Appeal's decision in Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji Njoroge, it held that the applicant had been given an opportunity to be heard and the holding was shared equitably between his two houses and himself, so certiorari was unwarranted. Prohibition was refused because the decision had already been implemented, with tenant cards and licences issued. The application was dismissed with costs to be borne by the Ex-parte Applicant.

Key legal issues

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01

Whether certiorari should issue to quash the Disputes Arbitration Committee's decision

Holding

Certiorari refused - the applicant was heard and the committee acted within its mandate

Reasoning

The minutes of the Disputes Arbitration Committee of 9th July 2015 showed the Ex-parte Applicant was present, and he admitted in his affidavit that he appeared before the Committee. He was given an opportunity to be heard, satisfying the rules of natural justice. The holding had belonged to the late Kangangi Mabuti, of whom the applicant was the legal successor, and the evidence showed he had two wives, one complaining of being denied access to cultivate. The Committee equitably shared the 4-acre holding between the two houses (1.5 acres each) and the applicant (1 acre). Certiorari lies only for excess of jurisdiction or breach of natural justice, neither of which was established.

p. 2
02

Whether prohibition should issue against the Respondents

Holding

Prohibition refused - the decision had already been made and implemented

Reasoning

Prohibition is forward-looking: it stops a wrong from being committed or continuing. The Respondents had already made the decision subdividing the rice holding into 1972 (A), (B) and (C); the tenant cards and licences had been issued to the Interested Parties. With the decision fully implemented, there was nothing remaining to be prohibited. The Court adopted the Court of Appeal's exposition in the Kenya National Examination Council case on the scope of prohibition orders and concluded the application lacked merit.

p. 2

Legal principles established

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  • Certiorari will issue only where a decision was made without or in excess of jurisdiction or where the rules of natural justice were not complied with
  • Prohibition is directed at stopping future or continuing proceedings in excess of jurisdiction and does not lie to correct a wrong decision already made on the merits

Court orders

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  1. 1.The Notice of Motion dated 18th December 2015 is dismissed
  2. 2.The Ex-parte Applicant shall bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1, 2 & 3
  • Law Reform ActSections 8 & 9
  • Constitution of Kenya, 2010Article 50(1)
  • Irrigation Actreferenced generally as governing the Scheme

Cases cited (1)

  • Kenya National Examination Council Vs Republic Ex-parte Geoffrey Gathenji Njoroge & 9 others
    (1997) e K.L.R
Jurisdiction invoked
Order 53 Rules 1, 2 & 3 of the Civil Procedure Rules and Sections 8 & 9 of the Law Reform Act

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 & another; Felicita Micere Cubi & 2 others (Interested Parties) Chubi Kangangi Ex Parte [2019] KEELC 916 (KLR)", Case Analysis (2019). Judicial Review application, Notice of Motion dated 18th December 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/916/eng@2019-10-04

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