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ELCDismissedNot stated in judgment (suit filed by Plaint dated 15th May, 2019; Kerugoya ELC)· [2021] KEELC 1535 (KLR)

Labanson Joseph Kinyua Michuki & 3 others v National Irrigation Board & another [2021] KEELC 1535 (KLR)

Environment and Land Court
8 October 2021
ECE.C. CHERONO
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you can challenge an irrigation scheme land decision by a declaratory suit, not only judicial review.

What this practically means

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Executive summary

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The 2nd Defendant raised a preliminary objection dated 26th August, 2020 against a suit commenced by plaint dated 15th May, 2019, in which the Plaintiffs sought a declaration that the 1st Defendant's decision of 21st February 2019 transferring Rice Holding No. 4218 Unit K.6 Karaba Section of the Mwea Irrigation Settlement Scheme to the 2nd Defendant was null and void, plus a permanent injunction restraining interference with the holding. The 2nd Defendant argued that land in the scheme is owned by the National Irrigation Board under the Irrigation Act Cap 347, that the Advisory Committee's decision of 21st February 2019 was a quasi-judicial decision challengeable only by judicial review under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, and that filing by plaint was wrong procedure depriving the Court of jurisdiction. The Plaintiffs relied on section 13 of the ELC Act, Articles 47 and 259 of the Constitution and the Fair Administrative Action Act, submitting the Court could entertain the declaratory suit. Justice E.C. Cherono held that the Court's jurisdiction under section 13 of the ELC Act covers land disputes, that section 7 of the Fair Administrative Action Act is not mandatory and does not confine aggrieved litigants to judicial review, and that a declaratory suit is a permissible mode of challenging administrative action which does not go to the root of the suit. The preliminary objection was dismissed with costs on 8th October 2021.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the dispute

Holding

The subject matter of the suit is land, and the dispute falls within the ELC's jurisdiction under Section 13 of the ELC Act

Reasoning

The Court invoked Section 13 of the Environment and Land Court Act, which confers original and appellate jurisdiction over disputes relating to environment and land under Article 162(2)(b) of the Constitution. The prayers in the plaint sought declarations and injunctions concerning Rice Holding No. 4218, making the subject matter land and thus within the Court's jurisdiction.

p. 2
02

Whether judicial review is the exclusive avenue for challenging a quasi-judicial body's decision

Holding

No - Section 7 of the Fair Administrative Action Act, 2015 is not mandatory and a declaratory suit may be employed

Reasoning

The Court held that Section 7 of the Fair Administrative Action Act permitting review of administrative action is not mandatory, so an aggrieved litigant may use other lawful modes. Relying on the Court of Appeal's definition of declaratory judgments and Order 3 Rule 9 of the Civil Procedure Rules, the Court found a declaratory suit permissible and not fatal to the suit's jurisdiction.

p. 3

Legal principles established

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  • A court can only exercise jurisdiction donated to it by the Constitution or legislation
  • Section 7 of the Fair Administrative Action Act, 2015 is not mandatory; an aggrieved litigant may challenge administrative action by means other than judicial review
  • A declaratory suit is a permissible mode of instituting a suit challenging an administrative action, and its filing does not deprive the ELC of jurisdiction

Court orders

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  1. 1.The Preliminary Objection dated 26th August, 2020 is dismissed with costs

Authorities

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Legislation

  • Irrigation ActCap 347, section 3
  • Law Reform ActSections 8 and 9
  • Civil Procedure Rules, 2010Order 53; Order 3 Rule 9
  • Environment and Land Court ActSection 13(1) and (2)
  • Constitution of Kenya, 2010Articles 162(2)(b), 47, 259
  • Fair Administrative Action ActSection 7

Cases cited (4)

  • Samuel Kamau Macharia & Another V Kenya Commercial Bank Limited & 2 others
  • Eliud Magondu Njagi Vs the Senior Scheme Manager Mwea Irrigation Scheme & 4 others
    Kerugoya ELC Case No. 264 of 2014
  • Felix Kiprono Mategei Vs the Hon Attorney General & Another
    Nairobi HC Petition 337 of 2018
  • Johana Nyokwoyo Buti Vs Walter Rasugu Omariba (Suing through his attorney Beutah Onsomu Rasugu) & 2 others
    [2011] eKLR
Jurisdiction invoked
Section 13 of the Environment and Land Court Act No. 19 of 2011, in accordance with Article 162(2)(b) of the Constitution

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, "Labanson Joseph Kinyua Michuki & 3 others v National Irrigation Board & another [2021] KEELC 1535 (KLR)", Case Analysis (2021). Not stated in judgment (suit filed by Plaint dated 15th May, 2019; Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1535/eng@2021-10-08

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