[2015] KEELC 37 (KLR)
The court found that the applicant had established a prima facie case for the grant of leave to institute judicial review proceedings against the respondent's decision to divide the rice holding. The applicant demonstrated that he was the licensee of the rice holding and had not breached any regulations, yet the...
Source-derived case information.
- Citation
- [2015] KEELC 37 (KLR)
- Parties
- Applicant: Chubi Kangangi; Respondent: Mwea Irrigation Settlement; Interested Party: Felicita Micere Cubi; Interested Party: Symon Muthee Cubi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 28 of 2015
- Procedural Posture
- Miscellaneous Application / Application for Leave to Apply for Judicial Review
- Outcome
- Leave to apply for judicial review granted; leave to operate as stay of implementation of the respondent's decision.
- Judges
- BN Olao
- Legal Topics
- Judicial Review, Land Allocation Disputes, Administrative Decisions, Irrigation Scheme Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chubi Kangangi
Applicant
Mwea Irrigation Settlement
Respondent
Felicita Micere Cubi
Interested Party
Symon Muthee Cubi
Interested Party
Procedural Posture
Miscellaneous Application / Application for Leave to Apply for Judicial Review
Legal Issues
- 1 Whether the applicant is entitled to leave to institute judicial review proceedings of certiorari and prohibition against the respondent's decision dated 9th July 2015.
- 2 Whether the leave granted should operate as a stay of the respondent's decision pending determination of the substantive application.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of leave to institute judicial review proceedings against the respondent's decision to divide the rice holding. The applicant demonstrated that he was the licensee of the rice holding and had not breached any regulations, yet the holding was divided without his consent or due process. The court held that, in the interests of justice and to prevent the implementation of a potentially unlawful administrative decision, leave should be granted and should operate as a stay of the respondent's decision pending the hearing and determination of the substantive application. The court further directed the applicant...
Court Disposition
Leave to apply for judicial review granted; leave to operate as stay of implementation of the respondent's decision.
Orders
- Leave is granted to the applicant to institute judicial review proceedings of certiorari and prohibition against the respondent's decision dated 9th July 2015.
- Leave granted shall operate as a stay of implementation of the said decision pending hearing and determination of the application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
MISC APPLICATION NO. 28 OF 2015
IN THE MATTER OF IRRIGATION ACT AND RULES CAP 347 LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
BETWEEN
CHUBI KANGANGI…………………………………….APPLICANT
VERSUS
MWEA IRRIGATION SETTLEMENT …….…………RESPONDENT
AND
FELICITA MICERE CUBI………..……..…..1ST INTERESTED PARTY
SYMON MUTHEE CUBI………..……….…2ND INTERESTED PARTY
RULING
The ex-parte applicant has move this Court by his Chamber Summons application dated 19th August 2015 seeking the following orders:-
That leave be granted to institute Judicial Review proceedings of certiorari and prohibition against the decision of the respondent herein dated 9th July 2015.
That leave once granted do operate as a stay of the said decision.
The application is supported by the statement of facts and affidavit verifying the same.
From the said statement, it is the ex-parte applicant’s case that whereas he is the licencee of rice holding No. 1972 Mwea Section Unit M15 for which he has a tenant card, the manager of Mwea Irrigation Settlement summoned him to appear before the Disputes Arbitration Committee on 9th July 2015 where he was informed that the interested parties were demanding a share of the said rice holding. He did not agree to that demand which was an ambush to him and he did not hear from the Committee again until a few days later when one SAMSON KINYUA KATHANGU entered the rice
holding and started cultivating one acre having leased the same from the interested parties herein. He therefore moved to Wanguru Court in Civil Case No. 84 of 2015 seeking injunctive orders and it was then that he learnt that the respondent had divided the said rice holding into three portions being 1972 (A) (B) and (C) yet he had never breached any of the regulations governing the same. That gave rice to this application.
I have considered the application and I am satisfied, prima facie, that the applicant is entitled to the orders sought therein and I grant the same.
In accordance with the provisions of Order 53 Rules 3 (1) and (2) of the Civil Procedure Rules, I direct that the applicant shall file the Notice of Motion within 21 days from the date hereof and serve the same upon the respondent, the interested parties and any other person as are affected by it within 14 days of filing.
I further order that the leave granted herein shall operate as a stay of implementation of the said decision pending the hearing and determination of the application.
Costs shall be in the application.
B.N. OLAO
JUDGE
4TH DECEMBER, 2015
COURT: Ruling delivered, dated and signed this 4th day of December, 2015 in open Court.
Mr. Macharia for Mr. Kagio for Applicant present.
B.N. OLAO
JUDGE
4TH DECEMBER, 2015