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ELCStruck OutJudicial Review Miscellaneous Application (Notice of Motion dated December 31, 2020)· [2022] KEELC 3853 (KLR)

Republic v National Irrigation Authority; Wainoi & 3 others (Interested Party); Kirima & another (Exparte) (Judicial Review E004 of 2020) [2022] KEELC 3853 (KLR)

Environment and Land Court
13 May 2022
ECE.C. Cherono
1,843 words in judgment
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The bottom line

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The Environment and Land Court struck out a Mwea rice holding dispute because the applicants skipped the Irrigation Act's required dispute resolution steps before going to court.

What this practically means

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Executive summary

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The ex-parte applicants, successors of the late Kirima Ngari (original allottee of rice holding No. 311 at Mwea Irrigation Settlement Scheme in 1959), sought an order of certiorari to quash the proceedings and verdict of the Arbitration Committee of the National Irrigation Authority dated November 2, 2020, concerning rice holdings 311 'A' and 'B'. They contended that the committee members were not gazetted, acted ultra vires the Irrigation Act, and lacked jurisdiction, and that they themselves had been duly registered as holders in accordance with the statutory succession procedure. The interested parties opposed, asserting the Advisory Committee acted within its mandate, that changes had properly been effected giving them shares, and that the applicants had discriminated against them contrary to Articles 27 and 40 of the Constitution. The court framed three issues: jurisdiction, whether the Advisory Committee acted ultra vires, and costs. Applying sections 25 and 26 of the Irrigation Act, 2019, section 9(2) of the Fair Administrative Action Act, 2015, and the exhaustion doctrine from Geoffrey Muthinja and the Owners of the Motor Vessel 'Lillian S', the court held that the applicants, being dissatisfied with the Arbitration Committee's verdict, ought first to have referred the dispute to the Dispute Resolution Committee before invoking the court's jurisdiction. Finding no evidence of compliance with section 26, the court held the application was prematurely brought and struck it out for want of jurisdiction, ordering each party to bear their own costs.

Key legal issues

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01

Whether the court had jurisdiction to entertain the judicial review application

Holding

The court lacked jurisdiction because the ex-parte applicants did not first refer the dispute to the Dispute Resolution Committee under Part VII of the Irrigation Act, 2019, and hence failed to exhaust the internal mechanisms as required by section 9(2) of the Fair Administrative Action Act, 2015

Reasoning

Sections 25 and 26 of the Irrigation Act, 2019 establish a dispute resolution mechanism requiring disputes to be referred first to the Dispute Resolution Committee before court. Section 9(2) of the Fair Administrative Action Act, 2015 bars review of an administrative action unless internal mechanisms are exhausted. The Court of Appeal in Geoffrey Muthinja confirms the exhaustion doctrine. The applicants went straight to court after the Arbitration Committee verdict without referral to the Dispute Resolution Committee, rendering the application premature.

p. 5
02

Whether the Advisory Committee acted ultra vires

Holding

Not determined, as the court found it lacked jurisdiction to determine the issues raised

Reasoning

Having found that the matter was prematurely before the court without exhaustion of the statutory dispute resolution mechanism, the court declined to make any determination on the merits of the ultra vires allegation, striking out the application instead.

p. 5
03

Who should bear the costs

Holding

Each party to bear their own costs

Reasoning

In striking out the application for want of jurisdiction, the court exercised its discretion on costs by directing each party to bear their own costs rather than awarding costs to any party.

p. 5

Legal principles established

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  • Where a dispute resolution mechanism exists outside courts, the same must be exhausted before the jurisdiction of the courts is invoked; courts are fora of last resort
  • Jurisdiction is everything; without it, a court has no power to make one more step

Court orders

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  1. 1.The ex-parte applicants' Notice of Motion dated December 31, 2020 is struck out for want of jurisdiction
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Irrigation Actsections 25(1), 25(2), 25(3), 26, 27 (cap 347 as cited by applicants), Part VII
  • Fair Administrative Action Actsection 9(2)
  • Constitution of Kenyaarticles 27, 40, 159
  • Mwea Irrigation Settlement Scheme Rulesrule 7(2), rule 7(3)

Cases cited (4)

  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR
  • The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Naomi Njeri Ayub vs Mary Nyambura Wangombe & another
    (2019) eKLR
  • Republic v the Chairman Advisory Committee Mwea Irrigation & 2 others Misc No. 67/2006
Jurisdiction invoked
Judicial review jurisdiction of the High Court/ELC under the Irrigation Act, 2019 and the Fair Administrative Action Act, 2015 (section 9(2)); dispute resolution mechanism under Part VII, sections 25 and 26 of the Irrigation Act, 2019

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, "Republic v National Irrigation Authority; Wainoi & 3 others (Interested Party); Kirima & another (Exparte) (Judicial Review E004 of 2020) [2022] KEELC 3853 (KLR)", Case Analysis (2022). Judicial Review Miscellaneous Application (Notice of Motion dated December 31, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3853/eng@2022-05-13

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