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ELCDismissedELC Appeal (from CMCC No. 5 of 2015, Wanguru)· [2020] KEELC 1801 (KLR)

Francis Kariuki Maina & another v Peter Kuria Muchoki [2020] KEELC 1801 (KLR)

Environment and Land Court
19 June 2020
ECE.C. Cherono
2,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kerugoya against the judgment of Hon. P.M. Kiama, Resident Magistrate, delivered on 27th September 2016 in CMCC No. 5 of 2015 (Wanguru). The Respondent, Peter Muchoki, had sued Francis Kariuki Maina and Luke Macharia Maina for vacant possession and permanent injunction over rice holdings No. 284 (B) and (C) Unit 19, Tebere Section, Mwea Irrigation Settlement Scheme, which he purchased from them for Ksh. 500,000 each, paying Ksh. 350,000 deposit per holding. The trial magistrate entered judgment for the plaintiff on prayers (a) and (b) but disallowed the refund claim of Ksh. 68,700. On appeal, the Appellants argued the transfers lacked consent, were fraudulent, required spousal consent under Section 28(a) of the Land Registration Act, and that the Respondent lacked locus standi. E.C. Cherono, ELC Judge, re-evaluated the evidence and held that rice holdings are licences being property of the National Irrigation Board governed by the Irrigation Act Cap. 347 and the Irrigation (National Irrigation Schemes) Regulations, 1977, not private land under the Land Registration Act; the nominee transfer was approved by the Committee under Regulation 7(2); no counter-claim or particulars of fraud were pleaded; and the 1st Appellant admitted the sale. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Applicable legal regime for rice holdings in an irrigation scheme

Holding

Rice holdings are licences issued under the Irrigation Act Cap. 347 (repealed) and the Irrigation (National Irrigation Schemes) Regulations, 1977, not private land under the Land Registration Act

Reasoning

The court held the dispute arose before repeal of Irrigation Act Cap. 347, so that Act applied. The Regulations govern management of settlement schemes and do not provide for sale of a licence, but a licensee may propose a nominee whose approval by the Committee results in a new licence. Transfer by the Board was therefore regular.

p. 3
02

Spousal consent under Section 28(a) of the Land Registration Act

Holding

Not applicable; the subject matter is a licence, not registered private property, and the 1st Appellant admitted the sale

Reasoning

The Appellants invoked spousal consent under Section 28(a) of the Land Registration Act. The court held this provision concerns private registered land, whereas rice holdings are property of the National Irrigation Board held under licence. The 1st Appellant also admitted selling his interest, undermining the objection.

p. 3
03

Fraud in the transfer by the National Irrigation Board

Holding

Fraud was not pleaded with particulars and no counter-claim was filed

Reasoning

The Respondent argued, and the court accepted, that the Appellants never specifically pleaded fraud in the transfer or filed a counter-claim to challenge the Respondent's ownership. Allegations of fraud must be specifically pleaded with particulars; in an adversarial system the trial court could only give judgment for the plaintiff or dismiss the suit.

p. 3

Legal principles established

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  • Rice holdings in a National Irrigation Scheme are licences being property of the National Irrigation Board governed by the Irrigation Act and Regulations, not private land under the Land Registration Act
  • Sale of a licensee's interest, if approved by the Committee as a nominee under Regulation 7(2) of the Irrigation (National Irrigation Schemes) Regulations, 1977, results in issuance of a licence to the nominee

Court orders

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  1. 1.Appeal dismissed
  2. 2.Judgment of the trial magistrate in favour of the plaintiff in terms of prayers A and B of the plaint (vacant possession and permanent injunction) upheld
  3. 3.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Irrigation Act Cap. 347 (repealed)general
  • Irrigation Act No. 14 of 2019repealing provision
  • Irrigation (National Irrigation Schemes) Regulations, 1977Sections 4, 7(2)
  • Land Registration ActSection 28(a)

Cases cited (2)

  • Isaac Muciri Githinji Vs David Wainaina Gachoka
    ELC No. 85 of 2016 (Kerugoya)
  • National Bank of Kenya Limited Vs Pipe Plastic Samkolit (K) Ltd & Another
    (2002) E.A. 503
On appeal from
Principal Magistrate's Court, Wanguru
CMCC No. 5 of 2015
Jurisdiction invoked
First appeal to the Environment and Land Court against the judgment of the Principal Magistrate's Court

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, "Francis Kariuki Maina & another v Peter Kuria Muchoki [2020] KEELC 1801 (KLR)", Case Analysis (2020). ELC Appeal (from CMCC No. 5 of 2015, Wanguru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1801/eng@2020-06-19

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