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ELCAllowedJudicial Review Notice of Motion dated 27th November 2018· [2019] KEELC 2812 (KLR)

Republic of Kenya v National Irrigation Board Mwea Irrigation Settlement Scheme & another Ex Parte Joseph Mutahi Karuiru & 2 others [2019] KEELC 2812 (KLR)

Environment and Land Court
14 June 2019
2,467 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that Mwea rice holdings belong to the irrigation scheme and cannot be inherited like family land through succession cases.

What this practically means

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Executive summary

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This was a statutory judicial review application by three sons of the late Meshack Karuiru seeking an order of certiorari to quash the proceedings and decision of the Scheme Manager, Mwea Irrigation Scheme, contained in a letter dated 31st September 2017 in respect of Rice Holding No. 2423 and Village Plot No. 2423 H 3 Thiba Section. The Applicants contended that the Scheme Manager's redistribution of the rice holding was made in total disregard of their interests and was ultra vires the Irrigation Act and without jurisdiction. The 2nd Respondent, their brother, opposed the application through a preliminary objection, asserting he was the lawful licencee of the holding on the strength of a court order in Wanguru Succession Cause No. 10 of 1974, by which he was appointed successor tenancy under the guardianship of Millicent Wangithi. The court, citing Suchan Investment Limited, outlined the scope of judicial review under the Fair Administrative Action Act, noting the shift towards merit review through proportionality. Applying Section 7 of the Irrigation (National Irrigation Scheme) Regulations, 1997, the court held that a nomination of a successor must be made in writing to the manager and approved by the Committee, not through a court succession cause. It held that a rice holding is property of the Irrigation Scheme, not personal property to be succeeded under the Succession Act, and that the Magistrate's Court order of 14th March 1974 usurped the functions of the Mwea Irrigation Settlement and was ultra vires the Irrigation Act. The Notice of Motion was allowed, certiorari issued quashing the Scheme Manager's letter, with each party to bear her own costs.

Key legal issues

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01

Whether the Scheme Manager's revocation and redistribution of rice holding No. 2423 was ultra vires and without jurisdiction

Holding

The court found the distribution of the rice holding as per the two letters was in disregard of the Applicants' interests and ultra vires the Irrigation Act.

Reasoning

The Applicants contended the Scheme Manager's distribution of the rice holding was done in total disregard of their interests and without jurisdiction under the Irrigation Act. The court, applying judicial review principles, examined the regulatory framework and found the impugned decision amenable to quashing by certiorari.

p. 2
02

Whether a Magistrate's Court order in Succession Cause No. 10 of 1974 could validly appoint a successor to an irrigation scheme rice holding

Holding

No - the rice holding is scheme property, not personal property to be succeeded under the Succession Act; the court order was tantamount to usurping the functions of the Mwea Irrigation Settlement and liable to be quashed.

Reasoning

Under Section 7 of the Irrigation (National Irrigation Scheme) Regulations, 1997, no nominated successor may succeed without approval of the Committee, and nomination is done in writing to the manager, not via a court succession cause. Registering a nominee as a succession cause was irregular. The rice holding is scheme property, not personal property, so the 1974 court order usurped the functions of the Scheme and was ultra vires the Irrigation Act (Cap 347).

p. 3
03

The scope of judicial review under the Fair Administrative Action Act, including merit review and proportionality

Holding

Judicial review under Article 47 and the Fair Administrative Action Act includes aspects of merit review, but the reviewing court cannot substitute its own decision for that of the administrator.

Reasoning

In adopting the holding in Suchan Investment, the court noted that proportionality under Section 8(2) of the Fair Administrative Action Act introduces a greater intensity of review, and that grounds in Section 7(2) of the Act invite assessment of relevant considerations and reasonableness, shifting judicial review towards aspects of merit review. However, the reviewing court cannot substitute its own decision; it may only remit the matter or make orders under Section 11 of the Act.

p. 2

Legal principles established

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  • The rice holding is property of the Irrigation Scheme, not personal property capable of succession, and succession by a court order usurps the functions of the Irrigation Scheme.

Court orders

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  1. 1.An order of certiorari do issue to remove into this Court for purposes of quashing the proceedings and award of the Scheme Manager Mwea Irrigation Scheme letter dated 31st September 2017 in respect to Rice holding No. 2423 and Village plot No. 2423 H 3 Thiba Section of the National Irrigation Board.
  2. 2.Each party to bear her own costs of this case.

Authorities

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Legislation

  • Fair Administrative Action ActSection 7(2), Section 8(2), Section 11
  • Constitution of KenyaArticle 47, Article 24(1)(b) and (e)
  • Irrigation ActCap 347 Laws of Kenya
  • Irrigation (National Irrigation Scheme) Regulations1997, Section 7
  • Succession Actnull

Cases cited (3)

  • Suchan Investment Limited Vs Ministry of National Heritage & Culture and 3 others
    (2016) K.L.R
  • Republic Vs Home Secretary; Exparte Daly
    (2001) 2 AC 532
  • Associated Provincial Picture House Ltd Vs Wednesbury Corp.
    (1948) 1 K.B. 223
Jurisdiction invoked
Statutory judicial review jurisdiction under the Fair Administrative Action Act and the Irrigation Act (Cap 347)

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 of Kenya v National Irrigation Board Mwea Irrigation Settlement Scheme & another Ex Parte Joseph Mutahi Karuiru & 2 others [2019] KEELC 2812 (KLR)", Case Analysis (2019). Judicial Review Notice of Motion dated 27th November 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2812/eng@2019-06-14

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