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ELCStruck OutNot stated in the judgment as provided· [2022] KEELC 1691 (KLR)

John Murigu Kiragu v Virginia Wanjiru Kiragu & 6 others [2022] KEELC 1691 (KLR)

Environment and Land Court
21 January 2022
2,397 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 struck out a farmer's suit challenging a National Irrigation Board decision because such challenges must be filed as judicial review, not an ordinary lawsuit.

What this practically means

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Executive summary

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The Plaintiff sued by a plaint dated 12th August 2015, amended 16th February 2021, challenging the National Irrigation Board's (7th Defendant) decision of 29th May 2014 which upheld the 1st Defendant's subdivision of Rice Holding Number 1993 Mwea Unit M16 to the 2nd-6th Defendants, causing the Plaintiff the loss of 4 acres. He sought a declaration that the Board's decision was null and void, cancellation of the subdivisions and registration as lawful licensee, alternatively registration in equal shares, plus costs. The 7th Defendant raised a preliminary objection that the court lacked jurisdiction, that the suit was a non-starter and an abuse of process, contending that recourse lay before the Board's Dispute Resolution Committee under Sections 8(2) and 26 of the Irrigation Act, No. 14 of 2019, with the court's role limited to judicial review. The 1st-6th Defendants concurred. The Plaintiff relied on Section 13(7) of the Environment and Land Court Act and Articles 47, 50 and 159(d) of the Constitution, framing his reliefs as declaratory. The court held that although the 2019 Act's dispute-resolution mechanism did not bar the suit - the plaint having been filed under the repealed Cap 347, which had no appeals framework - the substance of the claim was judicial review, as it attacked the decision-making process and effectively sought to quash the Board's decision, and could not be brought by plaint. Relying on Owners of Motor Vessel 'Lillian S', Municipal Council of Mombasa v Republic & Umoja Consultants, Geoffrey Ndungu Theuri v Law Society of Kenya and FMM v National Irrigation Board, the court struck out the suit as a non-starter with costs.

Key legal issues

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01

Jurisdiction of the ELC over a suit challenging a National Irrigation Board decision

Holding

The court disagreed that the Plaintiff was statutorily barred from court, since the repealed Irrigation Act, Cap 347 in force when the plaint was filed had no appeals framework to the Board's Dispute Resolution Committee

Reasoning

The Applicant relied on Sections 25 and 26 of the Irrigation Act, No. 14 of 2019 to argue that recourse lay before the Dispute Resolution Committee first. The court noted the plaint predates the 2019 Act and the repealed Cap 347 lacked an elaborate dispute resolution and appeals mechanism, so the Plaintiff was not barred from lodging the suit in court. That objection failed.

p. 3
02

Whether the suit was properly instituted by plaint

Holding

The suit was in substance a judicial review claim (procedural fairness, irrelevant considerations, ultra vires, illegality) and the reliefs sought would quash the Board's decision; commenced by plaint, it was a non-starter and was struck out

Reasoning

The Plaintiff admitted dissatisfaction with the process by which the Board's decision was made - lack of hearing, irrelevant considerations, ultra vires and illegality. The reliefs' net effect was to do away with the decision, the province of judicial review under Order 53, not a declaratory civil suit. Following Municipal Council of Mombasa v Republic & Umoja Consultants and FMM v National Irrigation Board, the court held it was not properly invoked and struck out the suit with costs.

p. 4

Legal principles established

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  • A suit challenging the decision-making process of a statutory board (alleging breach of natural justice, ultra vires and illegality) is a judicial review matter and cannot be instituted by way of plaint
  • Jurisdiction is conferred expressly by statute or the Constitution and cannot be inferred; a court without jurisdiction must down its tools

Court orders

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  1. 1.The Plaintiff's suit is struck out
  2. 2.Costs of the suit awarded (against the Plaintiff)

Authorities

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Legislation

  • Irrigation Act, No. 14 of 2019Sections 8(2), 9, 25, 26
  • Irrigation Act, Cap 347 (repealed)Whole Act
  • Environment and Land Court ActSection 13(7)
  • Civil Procedure Rules, 2010Order 53; Order 6 rule 1
  • Constitution of Kenya, 2010Articles 22, 47, 50, 159(d)

Cases cited (8)

  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited
    1989 KLR 1
  • Simon Warui Mwangi & Another v Grace Ruguru Mwangi & Another
    [2020] e KLR
  • Margaret Wanjiku Munyi & Another v Munyi Njoka & Another
    [2019] e KLR
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001 (2002) e KLR
  • Fatuma Maale Mohammed (suing on behalf of a minor, David Kaboro) v National Irrigation Board & 2 Others
    [2020] e KLR
  • Adero & Another v Ulinzi Sacco Society Limited
    [2002] 1 KLR 577
  • Geoffrey Ndungu Theuri v Law Society of Kenya
    (1988) e KLR
  • FMM (suing on behalf of a minor DK) v National Irrigation Board & 2 others
    [2020] e KLR
Jurisdiction invoked
Environment and Land Court Act, Section 13(7) invoked by the Plaintiff; the court considered its jurisdiction under the Irrigation Act, No. 14 of 2019 and the repealed Irrigation Act, Cap 347

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, "John Murigu Kiragu v Virginia Wanjiru Kiragu & 6 others [2022] KEELC 1691 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1691/eng@2022-01-21

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