[2023] KEELC 18854 (KLR)

Karingi v National Irrigation Authority & 3 others (Environment & Land Case E023 of 2023) [2023] KEELC 18854 (KLR) (18 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18854 (KLR)

Republic of Kenya

In the Environment and Land Court at Kerugoya

Environment & Land Case E023 of 2023

JM Mutungi, J

July 18, 2023

Between

Veronica Wangari Karingi

Plaintiff

and

National Irrigation Authority

1st Defendant

Sicily Nyambura

2nd Defendant

Ann Wanjiru Macharia

3rd Defendant

Esther Nyandoro Githuki

4th Defendant

Ruling

1. The Plaintiff vide a Plaint dated 19th April 2023 filed the instant suit on 24th April 2023 and inter alia prayed for the following orders:-a.A declaration that the Plaintiff is the sole successor of rice holding Number 2277 in accordance with the nomination and the oral and written will of the deceased.b.A permanent injunction restraining the 2nd Defendant, her servants, agents and/or any person claiming under her from entering, remaining on, working, cultivating and or in any other manner whatsoever interfering with the Plaintiff’s exclusive possession and cultivation of rice holding Number 2277 Thiba Section.c.Costs of the suit.

2. Simultaneously with the Plaint the Plaintiff filed a Notice of Motion application dated 19th April 2023 which was expressed to be brought under Order 40 Rule 1, Order 51 Rule 1, Section 1(a) and (b) of the Civil Procedure Act and Under 159 of the Constitution. The Plaintiff prayed for the following orders:-1. That this application be certified as urgent and heard exparte in the first instance.2. That this honourable court be pleased to grant an interim injunction restraining the Defendants either by themselves or through their servants, agents or any of them or otherwise from entering upon selling, leasing alienating, and/or carrying out any activities and/or interfering in any manner whatsoever with all that property known as Rice Holding 2277 Thiba Section Unit H18 measuring 4 Acres or any subdivisions of the said property, pending the interpartes hearing and determination of this application.3. That this honourable Court be pleased to issue an interim order of status quo being maintained on Rice Holding 2277 Thiba Section Unit H18 measuring 4 Acres or any subdivisions of the said property, the status quo being that the Applicant is in occupation of Rice Holding 2277 Thiba Section Unit H18 measuring 4 Acres or any subdivisions of the said property pending the interpartes hearing and determination of this application.4. That this Court be pleased to grant an interim injunction restraining the Defendants either by themselves or through their servants, agents or any of them or otherwise from entering upon, selling, leasing alienating and/or carrying out any activities and/or interfering in any manner whatsoever with all that property known as Rice Holding 2277 Thiba Section Unit H18 measuring 4 Acres or any subdivisions of the said property, pending the hearing and determination of this suit.5. That this Honourable Court be pleased to issue an interim order of status quo being maintained on Rice Holding 2277 Thiba Section Unit H18 measuring 4 Acres or any subdivisions of the said property, the status quo being that the Applicant is in occupation of Rice Holding 2277 Thiba Section Unit H18 measuring 4 Acres or any subdivisions of the said property, pending the hearing and determination of this suit.6. That the costs of this application be in the cause.

3. The application was premised on the grounds set out on the body of the application and the Affidavit sworn in support and the Supplementary Affidavit sworn on 22nd June 2023. The 2nd Defendant/Respondent swore a Replying Affidavit dated 15th May, 2023 in opposition to the application. When the matter came up at the exparte stage the Court upon considering the application made an order directing that the status quo that was obtaining in regard to the Rice Holding no 2277 be maintained until further orders of the Court. The parties failed to agree on what status quo application to be observed necessitating the Court to direct that the Plaintiffs be heard and be considered on merits. The parties argued the application by way of written submissions.

The Plaintiff’s Case. 4. The Plaintiff and the 2nd, 3rd and 4th Defendants are co-wives of Peter Karingi Kagwima (deceased). The said Peter Karingi Kaguima died on 15th June 2021. The Plaintiff’s Case is that her deceased husband was the allottee and licensee of Rice Holding 2277 Thiba Section Unit H 18 from the National Irrigation Board. The Plaintiff in support of her application for injunction has deponed that her late husband settled her on Rice Holding 2277 which she has occupied together with her children and has all through her marriage cultivated on the Rice Holding to sustain her family. The Plaintiff further deponed that before the deceased married her, he had married the 4th Defendant who deserted him. The Plaintiff stated the deceased had married one Margaret Wangeci whom he had settled on the village plot comprised in Rice Holding 2277 before he married her (the Plaintiff). The Plaintiff stated that she and Margaret Wangeci lived with the deceased at the village plot but Margaret Wangeci and the deceased had differences that prompted Wangeci to return to her present home where she unfortunately fell ill and died. The Plaintiff averred that the 2nd and 3rd Defendants who the deceased married later were settled by the deceased on some of his other properties.

5. The Plaintiff asserted that the deceased settled her and her children on Rice Holding 2277 which they had been utilising and continue to utilise. The Plaintiff averred further that the deceased had during his lifetime nominated her as his successor over Rice Holding 2277 and had in his Will and last testament, inter alia bequeathed the Rice Holding to her and her children while the other family members were equally bequeathed other properties.

6. The Plaintiff further averred that the 2nd, 3rd and 4th Defendants in disregard of the deceased nomination of her as his successor of the Rice Holding 2277 and in disregard of the deceased wishes as per his Will and last testament “VWK4” and “VWK5” respectively made a complaint before the Mwea Irrigation Scheme Arbitration Committee who made an award to the effect that the Rice Holding 2277 be shared equally between the deceased (4) houses “VWK7”. The Plaintiff appealed the decision to the 1st Defendant’s Arbitration Committee but the Committee upheld the decision of the Dispute Resolution Committee made on 3rd March, 2022 that the Rice Holding be shared equally amongst the Four (4) wives of the deceased.

7. The Plaintiff subsequently, filed a suit at the Wanguru CM’s Court ELC Case no 67 of 2022 on 29th September, 2022 challenging the decision of the Arbitration Committee but the Court vide a Ruling dated 25th November 2022 dismissed the suit on the basis that it lacked jurisdiction to deal with the matter. The Plaintiff appealed against the Ruling of the Wang’uru CM’s Court but withdrew the Appeal before filing the present suit alongside the application that is the subject of this Ruling.

8. The Plaintiff in support of the application avers that she and her children have been in occupation and have been cultivating Rice Holding 2277 all through and that her husband Peter Karingi Kaguima (deceased) nominated her as the successor to the Rice Holding. She averred further that the 2nd, 3rd and 4th Defendants never occupied and/or utilised the Rice Holding and were all each allocated other properties by her late husband as per his last Will and testament (“VWK5”). She stated that the 2nd, 3rd and 4th Defendants disregarded the wishes of her late husband and filed a dispute before the Mwea Irrigation Scheme Disputes Committee who made a decision that Rice Holding 2277 be shared equally between the four (4) houses which decision was upheld by the Scheme Appeals Committee.

9. The Plaintiff aveered that the 2nd, 3rd and 4th Defendants moved the 1st Defendant to have the changes relating to ownership of Rice Holding 2277 given effect in accordance with the decision of the Scheme Arbitration Committee so that they acquire their individual licences and Tenant cards for the portions that they were awarded. The Plaintiff averred that the 2nd, 3rd and 4th Defendants have never resided on the subject Rice Holding and it was the Plaintiff and her children who relied on the subject property for their subsistence and livelihoods. The Plaintiff stated that if the changes were effected and the property subdivided as per the Arbitration Committee’s decision, they stood to suffer irreparable damage as they would lose their means of sustenance. She prayed that the obtaining status quo in regard to the subject property be maintained pending the hearing and determination of the suit arguing that the Defendants stood to suffer no prejudice.

The Defendants Case. 10. The 1st Defendant, National Irrigation Authority indicated they would not participate in the hearing of the application and accordingly filed no response to the application by the Plaintiff.

11. The 2nd, 3rd and 4th Defendants, filed a replying Affidavit through the 2nd Defendant Cicily Nyambura Karingi dated 15th May 2023 in opposition to the application. The 2nd, 3rd and 4th Defendants averred that the Plaintiffs application lacked any merits and was laced with falsehoods. The Defendants admitted they were co-wives together with the Plaintiff of Peter Karinga Kagwima (now deceased) and that their said husband was the allottee of Rice Holding no 2277 Unit 18 Thiba Section from 1970. It was the 2nd, 3rd and 4th Defendants position that during his lifetime, their late husband used to cultivate the entire Rice Holding 2277 and would utilise the proceeds for the general welfare of all the families of the 4 wives. They averred that following their husband’s death on 15/6/2021, they decided that each household should stand on its own since the head of the family who used to make all decisions had gone. In that regard the 2nd, 3rd and 4th Defendants averred that they reported the death of their husband to the 1st Defendant who were the allocating Authority to facilitate the appointment of a successor for the Rice Holding in accordance with the provisions of the Irrigation Act, 2019 and the Regulations made thereunder.

12. The 2nd, 3rd and 4th Defendants averred that the 1st Defendant summoned all the beneficiaries and its Dispute Resolution Committee/Advisory Committee deliberated the matter on 3/3/2022 and resolved that Rice Holding no 2277 be shared equally between the Four (4) wives of the deceased such that each was to get 1. 0 Acres though the Plaintiff was in addition awarded the extra/Jua Kali Field (0. 75 Acre) and the Developed Village Plot at Karima. The Defendants averred that the Plaintiff appealed against the decision to the Appeals Committee of the 1st Defendant but the decision of the Dispute Resolution Committee was upheld. The 2nd, 3rd and 4th Defendants further stated that the 1st Defendant proceeded and effected the changes on the farmer’s records in accordance with the Arbitration Committee’s decision and the Rice Holding was subdivided into four portions nos 2277 A, B, C & D for the Plaintiff and the 2nd to 4th Defendants respectively.

13. The Defendants stated that the Plaintiff’s intention was to disinherit them and that was the reason she filed Wang’uru CMCC no 67 of 2022 where she sought to prevent them from taking occupation of the portions the 1st Defendant had awarded them out of Rice Holding 2277. The Plaintiff’s suit was dismissed and an Appeal she had lodged before this Court against the Ruling rendered in Wanguru. Magistrate’s Court was withdrawn by the Plaintiff. The Defendants averred that the Plaintiff ought to have vacated from the portions awarded to them after she harvested the rice crop in December, 2022. The Defendants stated they were depending on their deceased husband who was supporting them and in his absence they should be allowed to fend for themselves, by utilising the Rice Holding portions that had been apportioned to them. The 2nd, 3rd and 4th Defendants denied they had been allocated other properties by the deceased before he died and further denied their late husband left a Will as alleged by the Plaintiff insisting that he died intestate and the Will alluded to could very well be a forgery.

14. The 2nd, 3rd and 4th Defendants maintained that the 1st Defendant acted judiciously and procedurally when it made the decision to have Rice Holding 2277 subdivided and that it had the mandate to act in the manner it did under the provisions of the Irrigation Act and the Rules made thereunder. The Defendants prayed for the dismissal of the application for lack of any merit.

Submissions of the Parties:- 15. The application was canvassed by way of written submission. The Plaintiff filed her submissions on 22nd June 2023 while the 2nd, 3rd and 4th Defendants filed their submissions on 3rd July 2023.

16. The Plaintiff in her submissions submitted she had satisfied the threshold for issue of the injunctive order and/order for maintenance of the obtaining status quo pending the hearing and determination of the suit. The Plaintiff/Applicant argued she had met the conditions for grant of an interim injunction as established in the Case of Giella v Cassman Brown & Co. Ltd (1973) EA 358. In the Case the Court held an applicant for injunction must establish/demonstrate they had a prima facie case with probabilities of success; that they stand to suffer irreparable damage that could not be compensated by an award of damages, and in case the Court was in doubt in regard to the first two conditions, the Court could decide the application on a balance of convenience.

17. The Plaintiff relied on the Case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) eKLR to support her submission that she had established a prima facie case. In the Case the Court defined prima facie case thus:-“A Prima facie in a Civil application includes, but is not confined to a “genuine and arguable case”. It is a case which, on the material presented to the Court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

18. The Plaintiff/Applicant submitted that she had demonstrated she has a genuine grievance as the Dispute Resolution Committee of the 1st Defendant ignored evidence that she was the Nominee of the deceased in regard to Rice Holding no 2277 and that she was exclusively utilising the plot in question to the exclusion of her co-wives, the 2nd, 3rd and 4th Defendants. The Plaintiff contended her right was infringed and as such she had a right to challenge the decision of the Arbitration Committee of the 1st Defendant. The Plaintiff contended that having been nominated as successor by the deceased, the Arbitration committee of the 1st Defendant ought under Regulation 7 (1) of the Irrigation Act, to have allocated her the Rice Holding 2277 exclusively. On that account the Plaintiff asserted she had established a prima facie case with a probability of success.

19. The Plaintiff further submitted she stood to suffer irreparable damage unless the order sought were granted. She placed reliance on the Case of Nguru man Limited v Jan Bonde Nielsen & 2 Others (2014) eKLR where the Court inter alia held:-“------ The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury, that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is of such nature that monetary compensation of whatever amount, will never be adequate remedy.”

20. The Plaintiff/Applicant submitted that she had been in possession and was since her marriage to the deceased and had been utilising the plot as her only source of sustenance and if injunction was not granted, there was the risk the 2nd, 3rd and 4th Defendants could alienate the land. She stated the 2nd, 3rd and 4th Defendants would suffer no prejudice if the injunction was granted since they had been allocated other lands by the deceased.

21. The Plaintiff further argued the balance of convenience tilted in her favour having been the one who was in possession and was utilising the land for her livelihood. If the injunction was not granted she argued she not only stood to be evicted but would also lose her source sustenance and the 2nd, 3rd and 4th Defendants may very well alienate the portions allocated to them. The 2nd, 3rd and 4th Defendants were on the other hand settled on other lands that had been bequeathed to them by the deceased.

22. The Plaintiff further submitted that in the circumstances and facts of the case an order granting an order for status quo to be maintained, would be justified as it would maintain and preserve the state of things as they were pending the determination of the suit. The Plaintiff relied on the Case of Fatuma Abdi Jillo v Kuro Lengesen & another (2021) eKLR where Cherono, J reverted to several Court decisions to amplify what an order of status quo entailed. The Judge stated thus:-“The purpose of an order of status quo has been reiterated in a number of decisions:In Republic v National Environment Tribunal, Ex-parte Palm Homes Limited & Another (2013) eKLR, Odunga J. stated,““When Court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute take effect must be maintained. An order maintaining status quo is meant to preserve existing state of affair ….. status quo must therefore be interpreted with respect to existing factual scenario …”In TSS Spinning & Weaving: Company Ltd v Nic Bank Limited & Another (2020) eKLR, the Court unpacked the purpose of a status quo order as follows:“In essence therefore, a status quo order is meant to preserve the subject matter as it is/existed, as at the day of making the order Status quo is about a Court of law maintaining the situation or the subject matter of the dispute or the state of affairs as they existed before the mischief crept in, pending the determination of the issue in contention.”In Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & another (2020) eKLR, the purpose of a status quo order was explained as follows:“……By maintaining the status quo, the Court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.”Apart from preserving the substratum of the subject matter, the Court has also found an order of status quo as a case management strategy, where the court is keen to prevent prejudice as between the parties to a matter pending the hearing and determination of the main suit.”

23. In the present case the Plaintiff submitted that she was in possession and was utilising the disputed land and hence that status quo should be maintained until the suit was heard and determined.

24. The 2nd, 3rd and 4th Defendants in the submissions maintained that the Plaintiff had failed to demonstrate she had a prima facie cse to warrant the grant of a temporary order of injunction and status quo. The 2nd, 3rd and 4th Defendants submitted that the Plaintiff had predicated her case on the fact that she had been nominated as successor pursuant to Regulation 7(1), (2), (3) and (4) of the Irrigation (National Irrigation Schemes) Regulations 1977 and that the Dispute Resolution Committee in ignoring the said nomination acted without jurisdiction. For that reason, the Plaintiff sought to have the decision of the Arbitration Committee declared null and devoid.

25. The Respondents have contended that the Plaintiff/Applicant has relied on the provisions of the Irrigation Act, cap 347 of the Laws of Kenya and Regulations which are no longer law having been repealed following the enactment of the Irrigation Act, 2019 which under Section 35(1) repealed the Irrigation Act, cap 347 Laws of Kenya. With respect I do not think the position taken by the Defendants, Counsel, is entirely correct. While the Irrigation Act, cap 347 Laws of Kenya was repealed, the Regulations made thereunder were not revoked. Under Section 34(1) of the Irrigation Act, 2019 the Cabinet Secretary was to in consultation with the County Governments required to make Regulations for the better carrying out of the purposes and provisions of the Act, which regulations were to be approved by both Houses of Parliament. No such Regulations have been brought to the attention of the Court meaning the Regulations made under the repealed Act remained operative. I have seen the Irrigation (General) Regulations 2021 which however appear not to have been approved and gazetted as required under the Principal Act. The Regulations under Rules 82 to 85 make provision for dispute resolution in regard to various issues relating to the administration and management of National Irrigation Schemes. Rule 87 (3) provides for appeal by any party dissatisfied by any decisions of the Dispute Resolution Committee and the Scheme Management Committee.

26. The 2nd, 3rd and 4th Defendants have submitted that the National Irrigation Authority as the body that was legally mandated to handle any disputes arising in the scheme through the Dispute Resolution Mechanism inbuilt in the Act, lawfully and legally carried out its mandate in convening the Committee that heard and made a decision in accordance with the provisions of the Act and the Regulations. The Respondents have submitted that the Plaintiff/Applicant could only have challenged the decision of the Arbitration Committee by way of Judicial Review or Appeal and not by instituting a fresh suit as she had done. The Respondents have in support of their submission placed reliance on the Case of Fatuma Maale Mohamed v National Irrigation Board & 2 Others (2020) eKLR where Cherono, J struck the suit out on the basis that it was the National Irrigation Board through the mechanism established under the Act, who had jurisdiction to determine any disputes arising thereunder and that the aggrieved party, could only challenge the decision made by way of Judicial review and not by filing a new suit in court. Hon. Justice Cherono, relying on the Case of Municipal Council of Mombasa v Republic and Umoja Consultants Ltd (2002) eKLR expressed himself thus:“I agree with the above decision. It is trite that the National Irrigation Board has the sole statutory mandate to manage, control, regulate and allocate land within National Irrigation Schemes in Kenya. It is also trite that the National Irrigation Act cap 347 is a self-regulating and sustaining law with definite provisions for dispute resolution and Appeal mechanisms for anyone aggrieved by the decision made by the Board under the Act. These decisions by the Board can only be challenged by way of Judicial Review under Order 53 CPR and Article 22 of the Constitution of Kenya 2010.

Analysis Evaluation and Determination. 27. I have reviewed and considered the pleadings and the rival submissions of the Plaintiff and the 2nd, 3rd and 4th Defendants. It is not in dispute that the Rice Holding no 2277 was allocated to the deceased husband of the Plaintiff and the 2nd, 3rd and 4th Defendants. A dispute only arose after the death of the registered owner as to who amongst his widows was to be the successor of the Rice Holding. Although the Plaintiff evidently had been nominated by her husband to succeed him, her co-wives filed a complaint necessitating the Dispute Resolution Organs established by the 1st Defendant to hear and determine the dispute. Section 25 of the Irrigation Act, 2019 provides for Dispute Resolution while Section 26 provides for Appeals. Under Section 26 of the Act the Dispute Resolution Mechanism under the Act must be exhausted before a matter is referred to Court.

28. While a licensee under Regulation 7(1) of the Irrigation (National Irrigation Schemes) Regulations, 1977 (which I have determined to be operative) had a right to nominate a successor of the licence in writing in the event of death, such nomination under Regulation 7(2) could only take effect with the approval of the Committee. Hence even though the deceased in the instant matter may have nominated the Plaintiff as his successor, the nomination could only be effected with the Committee’s approval and it must have been on that basis the Committee entertained the complaint by the 2nd, 3rd and 4th Defendants.

29. The succession of Rice Holding 2277 dispute was first heard by the Arbitration Committee on 3/3/2022 who rendered a verdict that the Rice Holding be shared equally amongst the Four widows of the deceased. The Plaintiff additionally was awarded the Jua Kali Field and the village plot. The Plaintiff was dissatisfied with the verdict and she appealed to the Disputes Arbitration Committee who heard the dispute on 5/7/2022. The Arbitration Committee upheld the decision of the Dispute Resolution Committee that the Rice Holding be shared equally amongst the 4 wives of the deceased with the Plaintiff retaining the Jua Kali Field and the Village Plot. The Dispute Resolution Committee and the Arbitration Committee had mandate under the Irrigation Act, 2019 to hear and determine the dispute as they did. If the contention of the Plaintiff is that they acted unreasonably and/or irrationally or that they acted without jurisdiction, the avenue open to the Plaintiff was to apply for Judicial Review to have the decision and/or proceedings quashed.

30. My view is that the issue of the licence in regard to Rice Holding 2277 and the Succession therefore following the death of the licensee is a matter that fell within the organs established under the Irrigation Act 2019 to decide and that in exercising their mandate they were acting in a quasi judicial capacity and decisions emanating from their administrative actions would be subject only to Judicial Review by the Court. In the instant case, the Plaintiff is challenging the decision of the Dispute Arbitration Committee which as I have observed was lawfully exercising its mandate. This court exercises supervisory jurisdiction over the Subordinate Courts and over any person, body or authority exercising a Judicial or quasi- Judicial function that relate to matters that fall under its jurisdiction. Where such a body or authority exercises its administrative function as required by statute and renders a decision, such decision cannot be challenged by way commencing a suit by way of Plaint as that would constitute seeking to have the matter re-heard through another Judicial process ignoring the fact that already there is a decision made by a duly authorised and mandated body. Such decisions can only be challenged by way of Judicial Review as contemplated under Order 53 Rule 1 and 2 of the Civil Procedure Rules and under the Fair Administrative Action Act, 2015.

31. In the present matter the Applicant has invoked the jurisdiction of this Court and seeks to challenge the decision of the Arbitration Committee on the basis that the decision was illogical, unreasonable and unfair to the Plaintiff/Applicant. The suit is not brought as an Appeal against the decision of the Arbitration Committee, which would perhaps have invited a merits review of the decision to determine whether it was fair and/or justified. The Applicant has filed a Plaint which would naturally invite the re-hearing of the dispute. That is not what the Irrigation Act 2019 contemplates. Section 26 of the Act provides as follows:-“26. Where the water users Association or at the Irrigation Scheme level is unable to resolve a dispute, the same shall bereferred to the Dispute Resolution Committee at the first instance to consider and determine the matter before the same is referred to Court (emphasis added).

32. My understanding of the above provision is that the Dispute Resolution mechanism under the Act has to be completed. The reference to Court can only be to subject the decision made to Judicial Review and not to file a fresh suit.

33. It is my determination therefore that the Applicant invoked the jurisdiction of the Court wrongly and that the suit as presented is not sustainable. The Court lacks the jurisdiction to entertain the suit and that also applies to the application before the Court. Having held the Court has no jurisdiction to entertain the suit, I must down my tools as the Court would henceforth be acting in futility. See the Case of Owners of Motor Vessel Lilians’ v Caltex Oil (Kenya) Ltd (1989) eKLR.

34. The consequence is that the application and the suit commenced by way of Plaint dated 19th April, 2023 are hereby ordered struck out. Considering the dispute is amongst close family members, I exercise my discretion not to award costs to any party. The parties will bear their own costs of the application and the suit.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KERUGOYA THIS 18TH DAY OF JULY 2023. J. M. MUTUNGIELC -JUDGE