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ELCDismissedKerugoya ELC Constitutional Petition (Originating Notice of Motion dated 31st August 2016)· [2019] KEELC 4349 (KLR)

Grace Wacuka v National Irrigation Board Mwea Irrigation Settlement Scheme & others [2019] KEELC 4349 (KLR)

Environment and Land Court
15 February 2019
ECE. C. Cherono
2,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Rice holdings in Kenya's irrigation schemes belong to the National Irrigation Board, not the farmer, so they cannot be inherited like ordinary family property.

What this practically means

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Executive summary

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The petitioner, widow of Njiru Njagi, the registered licensee of Rice Holding No. 3102 in the Mwea Irrigation Settlement Scheme who died on 24 April 2015, petitioned by Originating Notice of Motion dated 31 August 2016 challenging the verdict of the 1st Respondent's Advisory Committee of 8 August 2016 which distributed the holding according to a nomination filed by the deceased in 2013. She sought declarations that her fundamental right to own property was infringed, that the verdict was discriminatory, an order of certiorari to quash the verdict, reinstatement of the previous usage position, and costs. The 1st Respondent argued the holding belongs to the National Irrigation Board under the Irrigation Act and that the distribution followed the lawful 2013 nomination. The 2nd, 3rd and 6th Respondents supported the decision; the 4th and 5th Respondents supported the widow, contending the holding should be split two acres per household. The court framed two issues: whether the petitioner was entitled to a share of the rice holding, and whether her fundamental rights were infringed. Relying on Catherine Wambui Miriithi, the court held that rice holdings belong to the National Irrigation Board and are not part of a licensee's estate; distribution is governed by the Irrigation Act and the 1977 Regulations, under which the deceased's nomination was valid and upheld. The court further held the petition failed the Anarita Karimi Njeru precision test, as no specific constitutional provision or manner of infringement was pleaded. The petition was dismissed with each party bearing her own costs.

Key legal issues

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01

Whether the petitioner is entitled to a share of her deceased husband's Rice Holding

Holding

No. The rice holding belongs to the National Irrigation Board and distribution follows the Irrigation Act and Regulations, including the deceased licensee's 2013 nomination, not the Law of Succession Act.

Reasoning

The Irrigation Act cap 347 vests scheme land in the National Irrigation Board, and licensees only hold licences to occupy and work rice holdings. Following the persuasive authority of Catherine Wambui Miriithi, the holding is not personal property and cannot be distributed as part of the deceased's estate. The deceased's 2013 nomination complied with section 7(1) of the 1977 Regulations and was upheld by the Advisory Committee under section 7(2). The petitioner adduced no evidence to challenge the nomination.

p. 3
02

Whether the petitioner's fundamental rights were infringed

Holding

No finding of infringement; the petition failed for want of precision in pleading the alleged violations.

Reasoning

Applying Anarita Karimi Njeru as affirmed in Mumo Matemu, a party alleging constitutional violations must state the specific constitutional provisions, the particulars of the complaints and the manner of infringement. The petitioner merely asserted generally that her fundamental rights were infringed without citing the relevant article or particulars, which prejudiced the respondents.

p. 4

Legal principles established

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  • Rice holdings in a national irrigation scheme are the property of the National Irrigation Board; licensees merely occupy and work them, and such holdings do not form part of a licensee's estate distributable under succession law.
  • Under section 7(1) of the Irrigation (National Irrigation Scheme) Regulations, 1977, a licensee may nominate a successor to his rice holding, and the Advisory Committee may uphold such nomination under section 7(2).
  • A constitutional petition must be pleaded with reasonable precision, identifying the constitutional provisions infringed, the particulars and the manner of infringement, per Anarita Karimi Njeru.

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear her own costs

Authorities

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Legislation

  • Irrigation Actcap 347 Laws of Kenya, sections 3, 14, 15(1), 24
  • Irrigation (National Irrigation Scheme) Regulation1977, sections 7(1) and 7(2)
  • Law of Succession Act
  • Constitution of KenyaArticle 40
  • Legal Notice LN/67/1977establishment of Mwea Irrigation Settlement Scheme

Cases cited (4)

  • Anarita Karimi Njeru –Vs- Republic
    1979 KLR 154
  • Mumo Matemu –Vs- Trusted Society of Human Rights Alliance & Others
    Civil Appeal No. 240 of 2012 [2013] e KLR
  • Catherine Wambui Miriithi Vs Mwea Irrigation Settlement Scheme & Another
    (2014) e KLR
  • Margaret Wairimu M…& Another –Vs- Faith Wnjiku Gikunju
    Kerugoya ELC Constitutional Petition No. 1 of 2017
Jurisdiction invoked
Constitutional petition alleging infringement of fundamental rights (Article 40 property rights invoked); supervisory powers of the High Court sought

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, "Grace Wacuka v National Irrigation Board Mwea Irrigation Settlement Scheme & others [2019] KEELC 4349 (KLR)", Case Analysis (2019). Kerugoya ELC Constitutional Petition (Originating Notice of Motion dated 31st August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4349/eng@2019-02-15

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