Republic v National Irrigation Authority & another, Ex-parte Kiguru Mwaura & 3 others

a. Leave to commence judicial review proceedings for an order of certiorari, to quash the decision of the Arbitration Committee of the National Irrigation Authority, made on 16th October 2025, in Minute No. 3/A/10/2025, declaring the 2nd Respondent the legal tenant of Rice Holding Jua-Kali No. 45. b. Order that the grant of leave do operate as a stay of the implementation pending of the impugned decision the hearing and determination of the substantive motion. c. Costs be provided for. 2. The application is based on the fifteen (15) grounds on its face marked (1) to (15), statements of facts and affidavit verifying the facts of Kiguru Mwaura, the 1st Ex-parte Applicant, sworn on the 18th November 2025, deposing inter alia that he has the authority of his co-applicants on their behalf; that the 4th Ex parte Applicant, Mwaura Kibiro, is the registered tenant of Rice Holding No. 169 Tebere T.7 measuring ten (10) acres under the management of the 1st Respondent; that the holding was progressively constituted through allocations made by the 1 st Respondent and approved transfers from third parties between 1996 and 2013; that an updated Tenant Card issued on 25th July 2023 confirms that the tenancy measures ten acres. KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 2

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3. The deponent further deposed that the 4th Ex parte Applicant allowed some of his sons to cultivate portions of the holding, including David Huria Mwaura, who cultivated approximately 3.5 acres; that the permission to his sons was limited to cultivation and did not confer any proprietary or tenancy rights; that David Huria Mwaura had no authority to sell, transfer, or otherwise dispose of any portion of the holding; that a dispute arose after the 2nd Respondent claimed to have purchased two acres from David Huria Mwaura under a sale agreement dated 16 th September 2021; that the transaction resulted in the creation of Rice Holding Jua-Kali No. 45, but an official search conducted at the offices of the 1 st Respondent revealed that Rice Holding No. 169 remained intact both on the ground and in the official records; that no part of the holding had been lawfully excised, subdivided, revoked, or transferred. 4. It is further the applicants’ case that the dispute was referred to the Arbitration Respondent for determination; the 1 st although the Committee that of Committee heard the dispute on 16th October 2025, they were not afforded an opportunity to be heard; that the decision was subsequently adopted as the judgment of the Wang'uru Principal Magistrate's Court in MCELC No. E056 of 2023; that the Committee reached its decision in breach of the rules of natural justice and the applicable KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 3

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provisions of the law; that unless the impugned decision is quashed, the 4th Ex parte Applicant stands to lose two acres of his rice holding, thereby reducing his tenancy from ten acres to eight acres; that they seek leave to institute judicial review proceedings to quash the decision and pray that, if granted, such leave operate as a stay of its implementation. 5. The application is opposed by Nelson Gachuri Kimani, the 2nd Respondent, through his replying affidavit sworn on 9th December 2025, deposing inter alia that he lawfully purchased Rice Holding Jua-Kali No. 45, measuring approximately two acres, from David Huria Mwaura pursuant to a sale agreement dated 16 th September 2021; that prior to the purchase, he conducted due diligence with the 1st Respondent, which confirmed David Huria Mwaura as the recognized legal tenant of the suit holding; that the transfer and surrender were thereafter approved by the 1st Respondent, and he took possession of the suit holding; that sometime in the year 2023 the Ex parte Applicants destroyed the rice he had planted and issued threats that prompted him to report the matter; that the dispute was reported to the police, and that the Scheme Manager of the 1st Respondent subsequently wrote to the DCIO, Mwea East, confirming him as the lawful tenant of the suit holding; that the dispute was thereafter litigated before the Wang'uru Principal Magistrate's Court in MCELC No. E056 of 2023, which referred the matter to KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 4

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the 1st Respondent's Arbitration Committee for determination; that the Committee heard all the parties before rendering its decision on 16 th October 2025, which was subsequently adopted as the court’s judgment on 4 th November 2025; that all the parties were accorded an opportunity to be heard before the Arbitration Committee and that the proceedings were conducted in accordance with the law; that the 1st Respondent duly discharged its statutory mandate in determining the dispute and that there is no basis for the orders of certiorari sought; that the dispute over Rice Holding Jua-Kali No. 45 has been ongoing since 2023; that he has already paid the requisite Operation and Maintenance (O&M) charges in preparation for the next planting season and that any order staying the implementation of the impugned decision would prejudice him as the land would remain uncultivated; that the application should therefore, be dismissed with costs. 6. On the 16th December 2025, the court directed that the Chamber Summons be canvassed through written submissions. Consequently, the learned counsel for the ex-parte applicants and 2nd respondent filed their submissions dated the 9th February 2026 and 25th March 2026 respectively, which the court has considered. 7. The issues arising in the Chamber Summons for the court’s determination are as follows: KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 5

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a. Whether the Ex parte Applicants have met the threshold for the grant of leave to commence judicial review proceedings. b. If answer in (a) above is in the affirmative, whether such leave should operate as a stay of the implementation of the impugned decision. c. Who pays the costs? 8. The court has considered the grounds on the Chamber Summons, statement of facts, affidavit evidence, submissions by the learned counsel and come to the following determinations: a. The Applicants contend that the decision of the Arbitration Committee is amenable to judicial review because the registered tenant of Rice Holding No. 169 was never notified of the proceedings or afforded an opportunity to be heard before the Committee rendered its decision. Counsel submitted that the complaint is directed at the decision-making process rather than the merits of the decision and that, at this stage, the Court is only required to determine whether an arguable case has been disclosed. b. The 2nd Respondent, on the other hand, submitted that all the parties were accorded a fair hearing KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 6

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before the Committee and further contended that the impugned decision was subsequently adopted as the judgment of the Wang'uru Principal Magistrate's Court. According to the 2nd Respondent, the intended judicial review proceedings are therefore misconceived, as the Applicants ought to have preferred an appeal instead. c. Leave under Order 53 Rule 1 of the Civil Procedure Rules is not granted as a matter of course. It serves as a filtering mechanism intended to eliminate frivolous, vexatious or legally untenable claims while permitting only those applications that disclose an arguable basis for judicial review to proceed for a substantive hearing. The Court is therefore not called upon, at this stage, to determine whether the impugned decision was right or wrong. Rather, the court must satisfy itself that the intended proceedings discloses an arguable complaint capable, in law, of attracting the judicial review remedy sought. d. Before considering the Applicants’ complaint regarding the alleged breach of the rules of natural justice, there is a preliminary legal question which, in my view, cannot be overlooked. The prayer before the Court is directed solely against Minute No. 3/A/10/2025 of the Arbitration Committee. However, KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 7

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it is common ground that after the Committee rendered its verdict, the matter came before the Wang'uru Principal Magistrate's Court in MCELC No. E056 of 2023. The order extracted from those proceedings states: "THIS MATTER coming up on 4th November 2025 for mention before Hon. Opanga (PM) in the presence of Miss Kimata Advocate for the Plaintiff and Mr. Gitau Kahiga Advocate for the Defendants and upon hearing both advocates, IT IS HEREBY ORDERED:1. That the verdict of the Arbitration Board dated 23rd October 2025 is hereby adopted..." The legal effect of that order must be considered. e. Section 26 of the Irrigation Act provides that: "Where the Water Users Association or at the irrigation scheme level is unable to resolve a referred dispute, the to Dispute the same shall be Resolution Committee at the first instance to consider and determine the matter before the same is referred to Court." KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 8

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The provision establishes the Dispute Resolution Committee as the statutory forum for the initial determination of disputes arising within irrigation schemes before recourse is had to court. The Act, however, does Committee's not expressly determination provide shall that the automatically assume the status of a judgment of the court. Nevertheless, the record before this Court demonstrates that the Committee's verdict was subsequently presented before the Wang'uru Principal Magistrate's Court, which, upon hearing counsel appearing for the parties, adopted it as its judgment. Whatever may have informed that course, the legal consequence of the adoption is the issue that now falls for determination. f. The Court of Appeal recently considered a similar question in the case of Mathenge versus Gatua & Another [2024] KECA 341 (KLR), and reaffirmed that once an award has been adopted as the judgment of a court of competent jurisdiction, it loses its separate legal identity, and cannot thereafter be impeached independently of the judgment adopting it. The Court observed that invalidating the antecedent award, while leaving intact the judgment founded KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 9

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upon it, would create an untenable legal situation, because the judgment would remain valid and enforceable notwithstanding the removal of its foundation. g. The Court of Appeal revisited and applied the same principle in the case of Rift Valley Enterprises Limited versus Nakuru District Land Disputes Tribunal & 2 Others (Civil Appeal E019 of 2021) [2026] KECA 602 (KLR), and after reviewing the Mathenge case [supra], held that: "An order of certiorari directed at the 1st respondent's award dissolve foundation the Magistrate's Court would, on judgment if granted, which the was built without disturbing the judgment itself; which is impossibility precisely the that Mathenge the structural case declined to countenance. A challenge to the Tribunal's decision by a parallel process leaves a valid and unchallenged court judgment on foot, a state of affairs the law cannot countenance. The relief sought is incapable of affording the appellant what it actually requires, and a court does not grant remedies that cannot afford the relief sought." KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 10

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The Court further rejected the argument that considering such a question at the leave stage amounts to determining the merits of the dispute, and held that: "Lastly, the contention that the learned Judge impermissibly conducted a merits inquiry at the leave stage does not arise for determination. A court is bound to take a point apparent on the face of the record at the leave stage, and the matters that dispose of this appeal were all apparent on the face of the record." h. The above Court of Appeal pronouncements are binding upon this Court and, in my respectful view, are directly applicable to the present application. Here, the Applicants seek leave to challenge only Minute No. 3/A/10/2025 of the Arbitration Committee. They do not seek to challenge the order made on 4th November 2025, adopting that verdict as the judgment of the Wang'uru Principal Magistrate's Court. Neither is any relief sought against that judgment. Consequently, even if leave was granted, and an order of certiorari applied for and ultimately issued against the Committee's minute, the judgment of the KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 11

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Magistrate's Court would still remain intact, valid and enforceable. The intended judicial review proceedings would therefore be incapable of yielding the practical and legal relief sought by the Applicants. i. In reaching that conclusion, I have not overlooked the Applicant’s contention that the registered tenant was denied an opportunity to be heard before the Arbitration Committee. That complaint, if established, would undoubtedly raise an issue touching on procedural fairness. However, in view of the legal consequence of the subsequent adoption of the Committee's verdict by a court of competent jurisdiction, it would be inappropriate for this Court to embark upon that inquiry in proceedings directed solely against the antecedent administrative decision. To do so would amount to examining the propriety of a process whose legal effect has since crystallised into a subsisting court judgment that remains unchallenged before this Court. j. I therefore find that the intended judicial review proceedings would not yield the desired result for it would leave the Magistrate court’s order still intact. It follows that the application, even if granted, is not capable, in law, of culminating in the grant of the order of certiorari sought. The Chamber Summons KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 12

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application consequently fails to satisfy the threshold for the grant of leave under Order 53 Rule 1 of the Civil Procedure Rules. Having so found, the prayer that leave do operate as a stay is rendered otiose and must likewise fail. k. That in view of the history of the dispute and with a view of fostering good relationship between the parties, the court finds this to be an appropriate case for each party to bear their own costs, the provision of Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya notwithstanding. 9. Having come to the foregoing conclusions on the Chamber Summons dated 18th November 2025, the court finds and orders as follows: a. That the application dated 18th November 2025 is without merit and is hereby dismissed. b. That each party bears their own costs. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026. KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 13

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S. M. Kibunja E LC JUDGE In the presence of: Ex-parte Applicants – Mr. Gitau Kahiga. Respondents – Mr. Ombachi for 2nd Defendant. Kinyua/Charles - Court Assistant S. M. Kibunja E LC JUDGE KEDRUGOYA ELCL JR NO. E012 OF 2025(RULING) 14

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