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ELCDismissedKerugoya ELC Civil Suit arising from plaint dated 10th July 2019 (Amended 18th September 2019)· [2021] KEELC 4307 (KLR)

Stephen Mugo Kimunyi v Bernard Muthike [2021] KEELC 4307 (KLR)

Environment and Land Court
12 February 2021
ECE.C. Cherono
1,356 words in judgment
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The bottom line

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The court ruled that rice plot holders in Kenya's irrigation schemes are only licensees, so such plots cannot be inherited or held in trust for family.

What this practically means

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Executive summary

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The plaintiff sued his step brother by amended plaint dated 18th September 2019 seeking a declaration that the defendant is registered owner of rice holding No. 3177 Unit 1 Wamumu Section in trust for the three houses of their late father Kimunyi Gakuya, and an order for cancellation of the registration so that all three houses get a share, plus costs and interest. The plaintiff testified that their father was allotted the 5-acre holding by the National Irrigation Board but, having another holding (No. 2160), caused the suit property to be registered in the defendant's name as trustee for the three houses. The defendant testified that the holding was allotted to him personally in 1969 as a licensee, that he holds it in trust for no one, and that the issue of the father's estate, including rice holding No. 2160, was already determined in Wang'uru DMCC No. 39 of 1993, PMCC No. 6 of 2013 and by the Advisory Committee of the Mwea Irrigation Settlement Scheme on 26th June 2016, which distributed holding No. 2160 among the three houses. The court framed two issues: whether a trust was established, and costs. It held that a rice holding is property of the National Irrigation Board under the (repealed) Irrigation Act (Cap 347); licensees hold mere terminable licences and rice holdings cannot form part of a licensee's estate distributable under succession law. Any challenge to the Board's allotment lies by appeal or judicial review, and the Board had not been enjoined. The plaintiff's claim was therefore not proved and was dismissed. Although costs normally follow the event, the court, noting the parties are close relations, ordered each party to bear his own costs. Judgment was delivered at Kerugoya on 12th February 2021 by E.C. Cherono, ELC Judge.

Key legal issues

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01

Whether the defendant was registered as trustee of rice holding No. 3177 Unit 1 Wamumu Section for the three houses of Kimunyi Gakuya

Holding

The plaintiff did not prove the alleged trust; the claim was dismissed

Reasoning

The court held that the suit property belongs to the Mwea Irrigation Settlement Scheme under the Irrigation Act (Cap 347). The Board issues licences and tenant cards and may terminate them under the regulations. A rice holding is not the personal property of a licensee and does not form part of a licensee's estate distributable under succession law. The proper forum to challenge the Board's decision was an appeal or judicial review, and the National Irrigation Board was not enjoined. The plaintiff's claim, founded on an alleged trust by his father, therefore failed.

p. 2
02

Costs of the suit

Holding

Each party to bear his own costs notwithstanding the dismissal

Reasoning

Although the general rule is that costs follow the event, the court noted that the plaintiff and defendant are close relations and, in exercise of discretion, departed from the general rule.

p. 2

Legal principles established

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  • A rice holding in an irrigation scheme is property of the National Irrigation Board; licensees do not own the holdings and such holdings do not form part of their estates for succession purposes
  • A challenge to a decision of the National Irrigation Board or its Committee lies only by way of the statutory appeal or judicial review

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Irrigation Act (Chapter 347) Laws of Kenya (now repealed)Section 3(1)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim of trust in respect of a rice holding; the court also noted that challenges to National Irrigation Board decisions lie by appeal or judicial review to the High 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, "Stephen Mugo Kimunyi v Bernard Muthike [2021] KEELC 4307 (KLR)", Case Analysis (2021). Kerugoya ELC Civil Suit arising from plaint dated 10th July 2019 (Amended 18th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4307/eng@2021-02-12

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