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ELCStruck OutNotice of Motion dated 2nd October 2019 (suit commenced by plaint, Kerugoya ELC)· [2020] KEELC 1915 (KLR)

FMM (suing on behalf of a minor DK) v National Irrigation Board & 2 others [2020] KEELC 1915 (KLR)

Environment and Land Court
12 June 2020
ECE.C. Cherono
2,469 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A landowner suing over an irrigation scheme decision lost because she filed the wrong type of case—judicial review, not an ordinary suit, was required.

What this practically means

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Executive summary

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The plaintiff, claiming to be the registered owner and legal tenant of Rice Holding No. 2320 (A) Mwea Section Unit M.13 measuring two acres, which she held as guardian of a minor, moved the court by Notice of Motion dated 2nd October 2019 under Order 40 Rules 1, 2 and 3 CPR seeking a temporary injunction restraining the respondents from sub-dividing or interfering with the holding. She alleged that on 6th June 2019 the 1st respondent unlawfully caused the holding to be sub-divided between the 2nd and 3rd respondents following an arbitration committee meeting at the Mwea Irrigation Scheme. The 1st respondent, through its Administrative Officer Rosemary Mwangi, opposed the application, tracing the history of the holding from Muriithi Karuri's 1965 licence through transfers to Alice Wambeti Muriithi, her son, and finally to the plaintiff as guardian of her grandson, and explaining that the Advisory Committee resolved in 2019 that Alice hold two acres and the 2nd and 3rd respondents hold two acres jointly. Counsel for the 1st respondent submitted the plaintiff had not met the Giella v Cassman Brown principles for an injunction. The court, however, raised the jurisdictional question of its own motion: the National Irrigation Board is a statutory body under Cap 347 whose committees exercise administrative and quasi-judicial functions, and their decisions are supervisable only by the High Court through judicial review under Order 53 CPR. Relying on Municipal Council of Mombasa v Republic & Umoja Consultants Ltd and Owners of Motor Vessel 'Lilians' v Caltex Oil (Kenya) Ltd, the court held the suit, commenced by plaint, was a non-starter, struck out both the suit and the application, and ordered each party to bear her own costs given the close family relationship between the parties.

Key legal issues

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01

Jurisdiction of the ELC over a dispute arising from a decision of the Mwea Irrigation Scheme Advisory Committee

Holding

The court was not properly seized; a suit by plaint challenging such an administrative decision is a non-starter and must be struck out.

Reasoning

The National Irrigation Board is a statutory body under Cap 347 with power over rice holdings. Its committees exercise administrative/quasi-judicial functions whose decisions are supervisable only by the High Court through judicial review under Order 53. Commencing by plaint subjects the dispute to a second hearing, wasting judicial resources. Jurisdiction is conferred by statute or the Constitution and cannot be inferred, so the court downed tools.

p. 3
02

Whether the plaintiff had established a prima facie case warranting an interlocutory injunction

Holding

Not determined on the merits because the court found it had no jurisdiction.

Reasoning

The court held the jurisdictional issue had to be decided right away before considering the Giella v Cassman Brown principles. Having found the suit improperly commenced, it struck out both the suit and the application without pronouncing on the merits of the injunction.

p. 3

Legal principles established

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  • Decisions of the National Irrigation Board and its committees, being statutory administrative decisions, can only be challenged by way of judicial review under Order 53 CPR and not by plaint
  • Jurisdiction must be raised and decided at the earliest opportunity; without jurisdiction a court cannot take any further step
  • A licence given to a tenant in an irrigation scheme is not absolute and is subject to the regulations of the Board

Court orders

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  1. 1.The suit and the application dated 2nd October 2019 are struck out
  2. 2.Each party to bear her own costs of the application and the suit

Authorities

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Legislation

  • Constitution of Kenya 2010Article 4 (cited by applicant's counsel); Article 265(6) as quoted (apparently intended as Article 165(6)); Article 22
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3; Order 53 Rules 1 & 2
  • National Irrigation Act / Irrigation Scheme legislationCap 347 Laws of Kenya
  • Civil Procedure ActCap 21 Laws of Kenya

Cases cited (4)

  • Giella –VS- Cassman Brown and Company Ltd
    (1973) EA 358
  • Mirao Ltd Vs First American Bank of Kenya and 2 others
    (2003) eKLR
  • Municipal of Mombasa Vs Republic and Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001 (2002) eKLR
  • Owners of Motor Vessel 'Lilians' Vs Caltex Oil (Kenya) Ltd
    (1989) KLRA 1
Jurisdiction invoked
Article 165(6) of the Constitution as quoted by the court (cited in the judgment as 'Article 265 (6)') and Order 53 of the Civil Procedure Rules; National Irrigation Board established under Cap 347 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "FMM (suing on behalf of a minor DK) v National Irrigation Board & 2 others [2020] KEELC 1915 (KLR)", Case Analysis (2020). Notice of Motion dated 2nd October 2019 (suit commenced by plaint, Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1915/eng@2020-06-12

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