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ELCPartially AllowedELC Appeal (from Misc. Succession No. 22 of 2004, Wanguru)· [2021] KEELC 2530 (KLR)

Mary Wangu & 4 others v Muriithi Rucathi & another [2021] KEELC 2530 (KLR)

Environment and Land Court
18 June 2021
3,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ruled that the National Irrigation Board, not civil courts, decides who holds Mwea rice licences, sending this family dispute to arbitration.

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 a ruling by Hon. D. Nyaboke, Principal Magistrate, delivered on 28th September 2015 in Misc. Succession No. 22 of 2004 (Wanguru). The ruling had upheld a preliminary objection and dismissed the Appellants' Notice of Motion dated 7th September 2015, which sought review of orders of 18th August 2015 directing the National Irrigation Board to issue the 1st respondent, Muriithi Rucathi, with a tenant card over Rice Holding No. 1693, Mwea Irrigation Scheme. The dispute concerned succession to a rice holding originally licensed to Phillip Rucathi Mukumbu, whose nomination of Muriithi Rucathi as successor was upheld by the magistrate's court on 7th September 2006 subject to approval of the Irrigation Committee under Regulation 7(2) of the Irrigation (National Irrigation Scheme) Regulations, 1977. The Appellants relied on the Advisory Committee's letter of 15th July 2014 allocating the holding among family members. On appeal, E.C. Cherono, ELC Judge, allowed all six grounds of appeal. The court held that irrigation schemes are managed under the Irrigation Act, Cap. 347, not the Civil Procedure Act, and that the trial magistrate erred in upholding procedural preliminary objections and in failing to recognize the NIB's supervening powers. The court set aside the trial ruling, allowed the Appellants' Motion in terms of prayer 3 (referral of the matter to the Manager, Mwea Irrigation Settlement for arbitration and final determination), and awarded costs of the appeal against the 1st Respondent.

Key legal issues

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01

Locus standi and functus officio before the trial court

Holding

The trial magistrate erred in upholding the preliminary objection on locus standi and functus officio; procedural technicalities under the Civil Procedure Act could not defeat the appellants' application founded on the Advisory Committee's decision

Reasoning

The court found it undisputed that the appellants were children and beneficiaries of the original licensee, and that the Advisory Committee had issued the letter of 15th July 2014 allocating the rice holding. Since the management of irrigation schemes falls under the Irrigation Act and not the Civil Procedure Act, the trial court was obligated to reconsider its earlier orders in light of the Committee's decision, and upholding preliminary objections based on Order 45 procedural requirements was an error.

p. 4
02

Powers of the National Irrigation Board over rice holdings

Holding

The NIB has full power to determine licensees of rice holdings, and the trial magistrate erred in failing to find that its powers supersede conflicting court orders

Reasoning

Under the Irrigation Act, Cap. 347 and the Regulations of 1977, the NIB manages all rice holdings including issuance, determination and cancellation of licences. The court held that the trial court's upholding of the 1st respondent's nomination was expressly subject to the approval of the Irrigation Committee; since the Committee instead issued a new list of licensees on 15th July 2014, the trial court was bound to review its orders accordingly.

p. 5
03

Duty of the first appellate court

Holding

An appellate court on first appeal re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses

Reasoning

Relying on Selle v Associated Motor Boat Co. (1968) E.A 123, the court restated that it is not bound necessarily to accept the findings of fact by the court below and must reconsider and evaluate the evidence itself. It then applied that standard in re-examining the six grounds of appeal combined.

p. 3

Legal principles established

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  • The National Irrigation Board, not the courts, determines the licensees of rice holdings under the Irrigation Act, and its management of irrigation schemes is not subject to the Civil Procedure Act save where a decision is challenged on grounds of illegality, impropriety, unfairness or want of jurisdiction under Article 47
  • Where a court has recommended a nominee as successor to a rice holding subject to approval under Regulation 7(2), that court may review its orders to give effect to the Advisory Committee's decision

Court orders

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  1. 1.The Ruling by the trial magistrate delivered on 28th September 2015 is hereby set aside
  2. 2.The Appellants' Notice of Motion dated 7th September 2015 is allowed in terms of prayer No. 3 thereof
  3. 3.The costs of this Appeal shall be borne by the 1st Respondent

Authorities

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Legislation

  • Irrigation ActCap. 347, Section 15(2)(f)
  • Irrigation (National Irrigation Scheme) Regulations, 1977Regulation 7(1) and 7(2)
  • Civil Procedure ActCap. 21
  • Civil Procedure RulesOrder 45
  • Constitution of Kenya, 2010Article 47

Cases cited (9)

  • Selle Vs Associated Motor Boat Co.
    (1968) E.A 123
  • Republic Vs Chairman Advisory Committee Mwea Irrigation Settlement Scheme and 2 others
    High Court Misc. Application No. 67 of 2006
  • Bernard Gichobi Njira Vs National Irrigation Board
    J.R. No. 23 of 2014 (U.R)
  • Republic Vs National Irrigation Board & 5 others Ex-parte Josphat Kariuki Mutuanjara
    Misc. Application No. 20 of 2014
  • Accredo Ag. & 3 Others Vs Steffaro Ucceli & Another
    (2017) e K.L.R
  • Zephir Holdings Limited Vs Mimosa Plantations Limited, Jeremiah Malagaro & Ezekiel Misango Mutisya
    (2014) e K.L.R
  • ICEA Lion General Insurance Company Ltd Vs Julius Nyaga Chomba
    (2018) e K.L.R
  • Jersey Evening Post Limited Vs Al Ihani
    (2002) J.L.R. 542
  • Republic Vs National Irrigation Board & Another Ex-parte Antony Munene Mbui & Another
    (2018) e K.L.R
On appeal from
Principal Magistrate's Court, Wanguru
Misc. Succession No. 22 of 2004 (Wanguru)
Jurisdiction invoked
First appeal to the Environment and Land Court from the decision of the Principal Magistrate

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, "Mary Wangu & 4 others v Muriithi Rucathi & another [2021] KEELC 2530 (KLR)", Case Analysis (2021). ELC Appeal (from Misc. Succession No. 22 of 2004, Wanguru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2530/eng@2021-06-18

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