[2022] KEHC 15937 (KLR)

Republic v National Irrigation Authority; Migwi (Interested Party); Murimi (Exparte) (Judicial Review E005 of 2021) [2022] KEHC 15937 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15937 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Judicial Review E005 of 2021

RM Mwongo, J

December 1, 2022

Between

Republic of Kenya

Applicant

and

National Irrigation Authority

Respondent

and

Faith Nyambura Migwi

Interested Party

and

Teresia Wangui Murimi

Exparte

Ruling

1. The Ex parte applicant filed a motion on 14th June 2021 for judicial review orders of certiorari to quash the proceedings and verdict of the Senior Manager, Mwea Irrigation Scheme (Respondent) dated 23rd March 2021 in respect of Rice Holding No 708 Tebere Section Unit T23.

2. According to the applicant, the said proceedings and verdict ignored a court order (Wanguru PMCC No 76 of 2013) and required the applicant to transfer one (1) acre to the interested Party, a decision which the applicant challenges as irregular ultra vires void, and in violation of the applicant’s right to protection of her property. the applicant challenges those proceedings and decision making process.

Preliminary Objection 3. The interested party filed a preliminary objection which is incorrectly dated 13th March, 2021 but filed on 13th July, 2021. It objects to the Judicial Review Application filed by the applicant. The Objection is premised on the following grounds:1. That this court lacks jurisdiction under the provisions of the Irrigation Act and the rules made thereunder.2. The applicant did not exhaust the dispute resolution machinery under the Irrigation Act and rules and cannot be allowed to open parallel proceedings.

4. I note the erroneous date of the preliminary objection because the motion to which it objects in this case is dated 8th June 2021 and filed on 14th June 2021.

5. As directed by the court, parties filed skeletal submissions on the Preliminary Objection.

Interested Party’s Skeleton submissions 6. As to whether the Honourable Court has jurisdiction to handle this matter: The Interested Party submitted that Sections 26 of the National Irrigation Act on Appeals stipulates that:“Where the water users’ association or at the Irrigation Scheme is unable resolve a dispute, the same shall be referred to the Dispute Resolution Committee at the first instance to consider and determine the matter before the same is referred to Court”.

7. The Exparte Applicant did not move the Dispute Resolution Committee as regards to the suit land herein thus ignoring the usual vital procedures, including the fact that the court that ordinarily deals with matters of environment and land is the ELC. Section 13 (7) of the Environment and Land Court Act stipulates that:“In exercise of its jurisdiction under this Act, the Court shall have the power to make any order and grant any relief as the court deems fit and just, including - (a)(b)Prerogative orders.”

8. The prerogative orders being sought by the Ex-parte Applicant can be made in the Environment and Land court as section 13(1) vests the court with power to deal with all matters to do with land and environment. This alone disqualifies the court to handle this matter.

9. As to whether the Exparte Applicant exhausted all the dispute resolution mechanisms: The Interested Party submitted that there is no evidence that there were proceedings at the Dispute Resolution Committee before the matter was referred to the court. It is vital that the same is considered before the matter can be entertained by this Honourable court to avoid wastage of time and resources. Thus, that in this case, the applicant did not exhaust the dispute resolution machinery under the Irrigation Act and Rules and cannot be allowed to open parallel proceedings.

The Ex Parte Applicant’s skeletal submissions: 10. The applicant faults the Interested Party’s contention that this Honorable Court does not have jurisdiction to deal with this matter by dint of Article 165(5) of the Constitution which states that a dispute relating to the environment and the use and occupation of land should be referred to the Environment and Land Court.

11. The Exparte applicant however insists that the instant application seeks judicial review of the respondent’s decisions and process.; That judicial review is a constitutional remedy embedded in Article 47 of the Constitution; and that such remedy is available to any party denied the right to administrative action.

12. The applicant submits that the substantive application herein was brought under Section 9 of the Fair Administrative Actions Act which grants this court jurisdiction to determine judicial review proceedings against any administrative action and does not deal with the merits of the respondent’s decision or raise issues under Section 13 of the Environment and Land Act. Hence, by dint of Article 165(6) of the Constitution, Section 7 and 9 of the Fair Administrative Actions Act and Order 53 of the Civil Procedure Rules, this court has jurisdiction to determine this application.

13. The applicant further faults the interested party’s contentions that: the Applicant did not exhaust the Respondent’s dispute resolution machinery provided for under Section 25 and 26 of the Irrigation Act, 2019; and that this court lacks the jurisdiction to deal with matter and the same should be handled by the Advisory Committee Mwea Irrigation Scheme. The applicant reiterates that it has moved this Honorable Court under judicial review to intervene in the process and not the substantive merits.

14. In the case of Council Service Unions v Minister for Civil Service (1985) the court classified judicial review under three heads: illegality, irrationality and impropriety. Further in a judicial review application, the court’s role is not to concern itself with the merits of the decision but the decision making process.

15. Instead of appealing or seeking for review of the court’s decision the Interested Party approached the Respondent and the Scheme Manager arbitrated over the matter and gave a different verdict notwithstanding the court’s earlier decision. The Scheme Manager’s actions have given rise to the instant application for judicial review as the said actions and proceedings were ultra vires, irregular and irrational.

16. The applicant submits that the parties are not disputing over the Rice Holding No 708 to warrant the assistance of the Respondent’s Advisory Committee. The Interested Party has misconstrued the basis of the instant application. The aim of the Applicant’s case is to challenge the legitimacy of the arbitration procedure undertaken by the Respondent’s Advisory Committee.

17. The applicant relies on the decision in Republic v Land Adjudication Officer Athinga Athanja Adjudication Sections & another Exparte M’Mailanyi M’Ilongi [2018] eKLR where the court reiterated that in judicial review the court only looks at the decision making process without delving into the merits of the decision

18. In the instant case, submits the applicant, the Interested Party’s contention that the Respondent’s dispute resolution machinery should be dealing with this matter is misguided as the Respondent has already done so and made a verdict that was irregular.

Issues for determination 19. The only issue for determination is whether this Court has jurisdiction to handle this matter.

20. For if this court does not have jurisdiction, it must forthwith “drop its tools”, since without jurisdiction, the court is incompetent to move any step further.

21. Before I get into the substantive issue, I would point out that a question of jurisdiction is always a question that raise a preliminary point, and is a proper subject of a preliminary objection, for if successful the matter ends with its determination.

22. The case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 settled the question as to what constitutes a preliminary objection where their Lordships observed thus:“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.In the same case Sir Charles Newbold, P. stated:“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.I hold that the preliminary objection raised herein properly fits into the description of a preliminary objection as defined in the Mukisa case.

23. On jurisdiction, the Supreme Court stated In the Matter of Interim Independent Electoral Commission [2011] eKLR as follows:“(29)Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”

Analysis and determination 24. The Ex-parte Applicant seeks to quash the proceedings and verdict of the Senior Manager, Mwea Irrigation Settlement Scheme dated the 23rd March 2021 in respect to Rice Holding No. 708 Section Unit T.23 where the interested party was awarded 1 acre of the applicant’s rice holding.

25. The motion is intituled under the Irrigation Act and the motion is made pursuant to Order 53 Rule 3 of the CPA and Section s 8 & 9 of the Law Reform Act.

26. In the instant application for Judicial Review dated 8th June, 2021 the exparte applicant in her supporting affidavit set out the history of the dispute with the Interested party. That the interested party had filed a suit in Wang’uru PMCC No. 76 of 2013 claiming ownership of one (1) out of the applicant’s rice holding. The court dismissed the suit and she never appealed.

27. Later, the Senior Manager, Mwea Irrigation Settlement Scheme summoned both parties on 15th December, 2020 and made the impugned decision without considering the existing decision of the court.

28. This court granted the applicant leave to institute judicial review proceedings to quash the Senior scheme manager decision on 2nd June, 2021. Does this court have jurisdiction to handle this matter?

29. There can be no doubt that judicial review is a constitutional remedy embedded in Article 47 of the Constitution; and that it is available to a party seeking the right to administrative action, as the instant application seeks.

30. There is also no question that the High Court has traditionally held jurisdiction to avail that remedy to a party alleging that it has been unfairly treated by administrative action. The court gives remedy by prerogative orders of certiorari, inhibition and mandamus. What is sought herein is certiorari. It has not been argued that the relief of certiorari, or reliefs under the Fair Administrative Action Act, are reliefs that are the preserve of the High Court.

31. Indeed, section 7 of the Fair Administrative Action Act permits any person, including a land owner, to institute proceedings in court:“7. Institution of proceedings (1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to– (a) a court in accordance with section 8; or (b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.”

32. It is also not in contention that the Environment and Land Court equally has the competence to avail relief by way of prerogative orders to parties unfairly treated by administrative action. Such power is contained in section 13 (7)(b) of the ELC Act, as pointed out by the Interested Party, Prerogative orders.

33. The only issue properly put, is whether the review and remedy sought in this particular case should properly be before this court or before the ELC.

34. In this case, the decision of the Senior Manager, Mwea Irrigation Settlement Scheme dated the 23rd March 2021 in respect to Rice Holding No. 708 Section Unit T.23 is sought to be quashed. the decision concerns the Senior Manager’s action of summoning the Exparte applicant to appear before his office for an arbitration meeting over the said Rice holding whilst a court had already determined the question

35. The applicant attached the minutes of the Senior Manager. Mwea Irrigation Settlement in issue. The minutes sought to be quashed state that the interested party is authorized to occupy Holding No 708 Mwea Irrigation Scheme

36. The Interested Party submits that there is no evidence that there were proceedings at the Dispute Resolution Committee before the matter was referred to the court. However, Senior Manager, Mwea Irrigation Settlement Scheme summoned both applicant and the interested parties on 15th December, 2020 and made the decision that is subject to the Judicial Review Proceedings.

37. A similar situation was dealt with in an ELC case Republic v National Irrigation Board & another Exparte Anthony Munene Mbui & another [2018] eKLR where Mukunya J held:“There is no doubt that the Advisory Committee of the Mwea Irrigation Scheme acted without jurisdiction in trying to set aside and overrule an order of a competent Court of law. It had no jurisdiction to do so. Its actions were a nullity and void ab initio”

38. The ELC court thus subjected the decision in that case to judicial review.

39. The Exparte applicant relies on the decision in Republic v Land Adjudication Officer Athinga Athanja Adjudication Sections & another Exparte M’Mailanyi M’Ilongi [2018] eKLR where the Environment And Land Court At Meru in Misc. Application (JR) No.3 of 2007 reiterated that for judicial review the court only looks at the decision making process without delving into the merits of the decision. Kemei J there stated:“9. In addressing the issues for determination, I want to associate myself with the decision of the Court of Appeal in the case of Municipal Council of Mombasa Vs Republic & Anor 2002 EKLR, where the learned Justices had this to say about judicial review;

Judicial review is concerned with the decision -making process, not with the merits of the decision itself. The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a Court hearing a matter by way of judicial review is concerned with, and such Court is not entitled to act as a Court of appeal over the decider; acting as an appeal Court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision and that, as we have said, is not the province of judicial review.”

40. However, the Exparte Applicant submits that her case is a challenge to the legitimacy of the arbitration procedure undertaken by the Respondent’s Advisory Committee. In my view however, there is nothing that suggests that the High Court is the only court which can deal with the challenge to abused administrative procedure.

41. The Scheme Manager and the Respondent’s Advisory Committee are all creatures of and under the Irrigation Act. The purpose of the Act is stated to be:“to provide for the development, management and regulation of irrigation, to support sustainable food security and socioeconomic development in Kenya, and for connected purposes”

42. A quick perusal of the use of the word ‘irrigation’ under the Irrigation Act shows the following:“irrigation” means any process, other than by natural precipitation, which supplies water to crops or any other cultivated plants, livestock, aquaculture and desired forest trees;“irrigation scheme” means a systematic and orderly irrigation system covering a defined area of land regardless of the type or system of irrigation employed;“irrigation management transfer” means the transfer to the users of authority and responsibility for both governance and delivery of management services in an irrigation and drainage scheme; “irrigation service fee” means the rates to be charged to water users for receiving irrigation services;“irrigation service plan” means the annual plan for water acquisition and distribution, scheme maintenance and repairs, other management tasks, staff and group labour mobilization, budget and irrigation service fee;“irrigation water user” means a member of a water users’ association who uses water from an irrigation scheme for an approved purpose such as for crops, livestock, and fish farming; “irrigation water users’ association” means any association established under section 20;“large scale irrigation scheme” means a scheme which acreage size covers over three thousand acres, and is developed and managed by the Authority, and is established for national strategic purposes, or such schemes as implemented by the private sector;

43. There is no doubt in my mind that the underlying subject matter covered in the substantive processes involved under the Irrigation Act that relate to ‘holdings’ in irrigation settlements thereunder or as to decisions affecting such holdings, are properly in the domain of the subject matter of land, land use and occupation of land.

44. The next question is whether this matter should be dealt with in the High Court or the ELC.

45. In my view, the High Court and the ELC each have distinctive mandates in administrative review. The different mandates of the courts run through the thread of all aspects of the matters in the respective areas of their exclusive jurisdiction. So that, in a case in which the underlying substantive subject matter concerns and is most closely connected to land, the ELC would be the natural platform for the exercise of administrative review jurisdiction thereunder.

46. On the other hand if the underlying substantive subject matter concerns and is most closely connected to employment relations, the Employment and Labour Relations Court would be the natural habitat for the exercise of administrative review jurisdiction in respect thereof as the court exclusively designed for such matters.

47. Similarly, if the underlying substantive subject matter on which administrative review is sought concerns and is most closely connected to a question under the scope of the High Court’s exclusive jurisdiction, then the High Court would naturally be the proper forum to exercise administrative review jurisdiction concerning such matter.

48. In the present case, the substantive subject matter is the land holding in Mwea Irrigation Scheme that has been the subject of a contested action by the Scheme Manager. the contested action sought to be subjected to administrative review is the Scheme Manager’s decision, which has affected the substantive rights as to the land holding. I have no doubt that the proper forum to question the process of making or reaching the decision by the Scheme Manager is the court concerned with the substantive subject matter.

Disposition 49. Ultimately therefore, I find and hold that this administrative action review should properly be before the Environment and Land Court and not the High Court. It so determined.

50. Accordingly, I hold in these circumstances that the High Court has no jurisdiction to determine by administrative review the actions of the Scheme Manager in respect of holdings in the irrigation settlement.

51. In the result, the Preliminary objection succeeds, and the Ex parte applicant’s application will not proceed in this Court. It should be pursued in the Environment and Land Court.

52. Costs will be borne by the Ex parte applicant.

53. Orders accordingly.

Delivered at Kerugoya on this 1st day of December, 2022RICHARD MWONGOJUDGEIn the presence of:Kimata for the Ex Parte ApplicantMugo for the Interested PartyMr. Murage Court Assistant