[2014] KEHC 2615 (KLR)
The court found that the ex parte applicant had established sufficient grounds for the grant of leave to apply for judicial review orders. The applicant demonstrated that the Sub-Advisory Committee's decision to subdivide and reallocate rice holding No. 227 was made in breach of a prior court order arising from...
Source-derived case information.
- Citation
- [2014] KEHC 2615 (KLR)
- Parties
- Applicant: Republic; Respondent: National Irrigation Board; Interested Party: Fredrick Mugweru Mugo; Interested Party: Symon Wambugu Mugo; Ex Parte Applicant: Danson Mute Mugo
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 21 of 2014
- Procedural Posture
- Judicial Review Application / Leave to Apply for Judicial Review Orders; Ruling on Ex Parte Application for Leave and Stay
- Outcome
- Leave to apply for judicial review granted; leave to operate as stay of execution of impugned orders.
- Judges
- BN Olao
- Legal Topics
- Judicial Review, Administrative Decisions, Allocation of Land, Succession Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
National Irrigation Board
Respondent
Fredrick Mugweru Mugo
Interested Party
Symon Wambugu Mugo
Interested Party
Danson Mute Mugo
Ex Parte Applicant
Procedural Posture
Judicial Review Application / Leave to Apply for Judicial Review Orders; Ruling on Ex Parte Application for Leave and Stay
Legal Issues
- 1 Whether the Sub-Advisory Committee of the National Irrigation Board acted ultra vires by subdividing rice holding No. 227 contrary to a prior court order.
- 2 Whether the applicant is entitled to leave to apply for judicial review orders of certiorari, prohibition, and mandamus.
- 3 Whether the leave granted should operate as a stay of execution of the impugned committee's orders.
Ratio Decidendi
The court found that the ex parte applicant had established sufficient grounds for the grant of leave to apply for judicial review orders. The applicant demonstrated that the Sub-Advisory Committee's decision to subdivide and reallocate rice holding No. 227 was made in breach of a prior court order arising from succession proceedings, which had vested the holding in the applicant's name. The court held that administrative bodies are bound by existing court orders and cannot act in contravention thereof. Accordingly, leave was granted to the applicant to file a substantive motion for judicial review, and the leave was ordered to operate as a stay of execution of the committee's impugned...
Court Disposition
Leave to apply for judicial review granted; leave to operate as stay of execution of impugned orders.
Orders
- Leave granted to the applicant to file Notice of Motion for judicial review within 21 days.
- Applicant to serve Notice of Motion on respondents, interested parties, and affected persons within 14 days of filing.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
JUDICIAL REVIEW APPLICATION NO. 21 OF 2014
IN THE MATTER OF AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW AND RICE HOLDING NO. 227 UNIT T-6 TEBERE SECTION OF THE NATIONAL IRRIGATION BOARD – MWEA IRRIGATION SETTLEMENT SCHEME
AND IN THE MATTER OF SUB-ADVISORY COMMITTEE PROCEEDINGS AND AWARD DATED 15/4/2014
BETWEEN
REPUBLIC …………………………………………………..……….…..……….……….. APPLICANT
VERSUS
NATIONAL IRRIGATION BOARD ……………………………..…….……….…………RESPONDENT
AND
1. FREDRICK MUGWERU MUGO…………….....................….……………… INTERESTED PARTIES
2. SYMON WAMBUGU MUGO
EX-PARTE ………………………………………….…..…………...…………DANSON MUTE MUGO
RULING
The exparte applicant has sought by his Chamber Summons dated and filed in this Court on 12th September, 2014 leave to bring into this Court and quash the proceedings and award of the Sub-Advisory Committee of the National Irrigation Board – Mwea Irrigation Settlement Scheme dated 15th April, 2014 in respect of rice holding No. 227 Unit T-6 Tebere Section originally allocated to DANSON MUTE MUGO (applicant herein) measuring 4 ½ acres. The exparte applicant also seeks leave to apply for prohibitory and mandatory orders against the Senior Scheme Manager National Irrigation Board – Mwea Irrigation Settlement Scheme stopping him from allocating the said rice-holding or portions thereof to the interested parties or any other person and such allocation, if any, be declared null and void and the manager be compelled to restore the entire rice-holding to the names of the exparte applicant in compliance with the National Irrigation Schemes Regulations made pursuant to Section 27 of the Irrigation Act and also as per the orders of the Court issued vide Wangure Senior Resident Magistrate Court Misc Succession Cause No. 26 of 1984 dated 8th February, 1985. Finally, the exparte applicant seeks that the above operate as a stay of execution and further proceedings respectively.
I have considered the application, the verifying affidavit and statement of facts. The exparte applicant’s case, as I can discern from the material before me, is that the original rice-holding No. 227 Unit T-6 Tebere Section was allocated to his late father (MUGO NGAI) and upon his demise in 1958, the same was succeeded by the exparte applicant following a consent order of all the family members in Wanguru Misc Succession Cause No. 26 of 1985 after which the rice-holding was registered in the names of the exparte applicant who has enjoyed peaceful vacant and exclusive possession to-date. However, on 15th April, 2014 and in breach of that consent order, the Sub-Advisory Committee of the National irrigation Board constituted a committee that deliberated on the said rice-holding and sub-divided the same into three (3) portions which were shared out between the exparte applicant and the interested parties. It is the exparte applicant’s case that the orders of 15th April, 2014 are illegal, null and void as they purport to overturn a lawful Court order.
In my view, the exparte-applicant has established sufficient grounds for the orders sought. In accordance with Rule 3 (1) of Order 53 of the Civil Procedure Rules, I direct that the applicant shall file the Notice of Motion within 21 days from the date hereof. I further direct pursuant to Rule 3 (2) of the said order that the applicant shall serve the said Notice of Motion on the respondents, the interested parties and all such persons as are affected by it within 14 days of filing. The applicant shall then file an affidavit stating who has been served with the said Notice of Motion.
I further direct pursuant to Rule 1 (4) of Order 53 Civil Procedure Rules that the leave herein granted shall operate as a stay of execution of the orders of the Sub-Advisory Committee of the National Irrigation Board dated 15th April, 2014 and further proceedings.
Costs shall be in the Notice of Motion.
B.N. OLAO
JUDGE
25TH SEPTEMBER, 2014
25/9/2014
Before
B.N. Olao – Judge
Mwangi – CC
Mr. Ithiga for Kahiga for Applicant – present
Respondent – absent
COURT: Ruling delivered in open Court this 25th day of September, 2014.
Mr. Ithiga for Kahiga for Applicant present.
B.N. OLAO
JUDGE
25TH SEPTEMBER, 2014