[2015] KEHC 1849 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

MISC. CIVIL APPLICATION NO. 14 OF 2014

IN THE MATTER OF AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW AND RICE HOLDING NO. 3435 UNIT W 4 WAMUMU SECTION OF THE NATIONAL IRRIGATION BOARD - MWEA IRRIGATION SETTLEMENT SCHEME AND IN THE MATTER OF ADVISORY COMMITTEE PROCEEDINGS DATED 30. 3.2014

BETWEEN

REPUBLIC …………………………..…………………...........…………… APPLICANT

VERSUS

NATIONAL IRRIGATION BOARD …………….……..........………….. RESPONDENT

AND

1. JOHN WAWERU )

2. MARGARET MUTHONI )…………….…..……… INTERESTED PARTIES

3. ELIZABETH MUTHONI )

EX-PARTE ………………..JOHN GICHOBI KARUGUMI Alias KARABA KARUGUMI

JUDGMENT

By his Notice of Motion dated 1st July 204 and filed in this Court on the same day, the Ex-parte Applicant herein JOHN GICHOBI KARUGUMI Alias KARABA KARUGUMI seeks the following orders:-

1. That an order of certiorari do issue to remove into the High Court for purposes of quashing the award of the Sub-advisory Committee of the National Irrigation Board – Mwea Irrigation Settlement Scheme dated 20th March 2014 in respect of rice holding No. 3435 Unit 4 Wamumu Section of the National Irrigation Board originally allocated to KARUGUMI NYAGA – deceased.

2. That an order of prohibition and mandamus do issue against the Senior Scheme Manager Mwea Irrigation Board – Mwea Irrigation Settlement Scheme stopping him from allocating rice holding No. 3435 Unit A Wamumu Section of the Mwea Irrigation Settlement Scheme and such allocation if any be declared null and void and the Manager be compelled to have rice holding in issue allocated to the ex-parte Applicant in full compliance of Regulation 7(2) of the Irrigation Act Chapter 347 Laws of Kenya.

3. That costs of this application be provided for.

The said Notice of Motion was based on the following grounds:-

(a) That the applicant’s father one KARUGUMI NYAGA who died on 28th April 2013 had been allocated the rice holding No. 3435 Unit 4 Wamumu Section and prior to his death, he had nominated the applicant under the guardianship of GITARI KARABA to succeed him.

(b) That upon notification of the death of the said KARUGUMI NYAGA, the respondent wrote to the Principal Magistrate Court Wanguru to determine the successor of the rice holding but the Court vide a ruling dated 7th November 2013 advised the Respondent that it was not proper to do so.

(c) That the applicant through his lawyer asked the respondent to have the rice holding allocated to the applicant but instead, the respondent through its Senior Scheme Manager instead of performing his Statutory duties in accordance with the Irrigation Rules under Chapter 347 Laws of Kenya and declaring the applicant the successor of the said rice holding proceeded to hurriedly convene a Sub-Advisory Committee meeting to which the applicant was not invited and shared out the rice holding between the interested parties.

(d) That that meeting of 20th March 2014 was illegal and the decision arrived at was therefore a nullity as it breached his rights.

The respondent filed grounds of opposition to the application stating that it lacks merit and is an abuse of the Court process and that the award of the Sub-Advisory Committee Meeting of the Respondent dated 20th March 2014 was made in accordance with the law and rules of Natural Justice were followed and therefore the respondent did not act ultra-vires.

The 3rd interested party filed a replying affidavit on behalf of the 1st interested party on which she deponed, inter alia, that on 6th May 2013, a consent order had been recorded in Wanguru Principal Magistrate’s Court Case No. 40 of 2013 as to how the late KARUGUMU NYAGA would be buried. Further, that she and her co-widow PAULINE WANGITHI GICIMU had moved the Court in Wanguru Principal Magistrate’s Court Case No. 80 of 2013 seeking injunction orders against the applicant and the 2nd interested party and PETER KARUGUMI who were interfering with family arrangements with respect to the said rice holding but the Court declined to issue the order sought and the matter was referred to the respondent. That on 14th March 2014, the respondent’s Scheme Manager invited them to a meeting before the Sub-Advisory Committee on 20th March 2014 which arrived at a decision that was not illegal or irregular since as widows of the deceased, they were entitled to an equitable distribution and have now been issued with tenant cards and licences.

On her part, the 2nd Interested party filed a replying affidavit in which she deponed, inter alia, that the said rice holding No. 3435 Unit 4 Wamumu Section had originally been allocated to her late husband KARUGUMI NYAGA who had nominated her son the applicant herein to succeed him in accordance with the Irrigation Rules under Chapter 347 Laws of Kenyaand at no time did the 3rd interested party ever claim to be her co-wife and only appeared to claim the rice holding and is therefore a stranger and since the respondent’s decision is against the

law, it should be quashed.

Submissions have been filed both by Mr. Kahigah advocate for the applicant and Mr. Ombachi advocate for the respondents and 1st and 3rd interested parties.

I have considered the application, the rival affidavits of the parties

and the submissions of counsels.

In MUNICIPAL COUNCIL OF MOMBASA VS REPUBLIC AND UMOJA CONSULTANTS LTD CIVIL APPEAL NO. 185 of 2001, (2002 e K.L.R), the Court of Appeal summarized the duty of the Court in a Judicial Review application as follows:-

“Judicial Review is concerned with the decision making process, not with the merits of the decision itself; the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, 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 it take into account irrelevant matters? These are the kind of questions a Courthearing 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”.

It is important therefore to remember that the remedy of Judicial Review is basically to ensure fair treatment by the bodies mandated to make decisions. Therefore, to succeed in an application for Judicial Review, the applicant must show that either the decision complained of was illegal, irrational or procedurally improper. Illegality is when the decision making authority commits an error of law or acts without jurisdiction while an irrational decision is one which is so un-reasonable that that no reasonable authority would have made it. Procedural impropriety is where there is failure to act fairly as for example where the rules of Natural Justice are not adhered to – see PASTOLI VS KABALE DISTRICT LOCAL GOVERNMENT COUNCIL AND OTHERS 2008 2 E.A 300 which cited with approval COUNCI OF CIVIL SERVICE UNIONS VS MINISTER FOR CIVIL SERVICE 1985 AC 374. The duty to act fairly has now attained Constitutional embodiment as provided in Article 50(1) of the Constitutionin the following terms:-

“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court, or if appropriate, another independent and impartial tribunal or body”

Having set out the scope of Judicial Review, it is not disputed that rice holding No. 3435 Unit 4 Wamumu Section of the National Irrigation Board was originally allocated to KARUGUMI NYAGA (deceased) who was the applicant’s father. The following facts are also not in dispute:-

1. That prior to his death, the deceased KARUGUMI NYAGA had nominated the applicant to be his successor in accordance with the provisions of Rule 7(1) of the Irrigation Regulations 1977.

2. That by a letter dated 14th March 2014, the Scheme Manager Mwea Settlement Scheme invited the 2nd and 3rd interested parties to a meeting on 20th March 2014 and following that meeting, the 1st and 3rd interested parties were each granted identification cards to one acre out of the rice holding subject of this case and the 2nd interested party two acres.

3. That the applicant was not invited to that meeting – see 3rd interested party’s annextures EMK 3 and 4.

The deceased having nominated the applicant as his successor in rice holding No. 3435 Unit 4 Wamumu Section, all that the respondent was required to do was to approve him as the successor in terms of Regulation 7(2) of the Irrigation Regulations 1977 made under Chapter 347 of the Laws of Kenya. That provision reads as follows:-

7(2): “No person nominated as a successor may succeed without the approval of the Committee”

The BLACK’s LAW DICTIONARY NINTH EDITION defines the word approval as follows:-

“To give formal sanction to, to confirm authoritatively”.

On the other hand, THE CONCISE OXFORD DICTIONARY defines the same word in the following terms:-

“Officially accept as satisfactory - believe that someone or something is good or acceptable”

Given the respondent’s mandate under the above Regulation, it is not clear why its Committee proceeded in the manner that it did without even inviting the applicant who was the nominated successor to the said rice holding and even proceed to distribute the same in the manner that it did. Even assuming that the applicant had breached any of the conditions that go with the licence, and that has not been alleged by either the respondent or interested parties herein, the rules of Natural Justice demand that he should have been invited to the meeting held on 20th March 2014 since a decision affecting his rights was made. Indeed the proceedings of that day have not even been availed by the respondent and it is not therefore clear on what basis that decision was made. What is clear, however, is that in making the decision that it did, the respondent’s Committee did not give the applicant an opportunity to be heard and thereby flouted a cardinal rule that requires that no party shall be condemned un-heard. It is fundamental to fair procedure that all sides to a dispute should be heard – “audi alteram partem” - which simply means hear the other side. A Statutory body such as the Respondent cannot validly exercise powers entrusted upon it without hearing the person who is likely to be affected by its decision. Therefore, even if the respondent was minded to hear the parties before approving the applicant as the successor to the rice holding, then it was obliged to give all the parties an opportunity to be heard. Both the respondent and the 1st and 3rd interested party claim that the Committee followed the rules of Natural Justice in arriving at the decision that it did but it is clear from what I have stated above that that was not the case in so far as the proceedings subject matter of this case are concerned.

It is clear from what I have stated above that not only did the respondent not adhere to the regulations provided under Chapter 347 of the Laws of Kenya but it also did not observe the rules of Natural Justice. It is well established that when a Statute has conferred on any body the power to make decisions, the Courts will require that the procedure prescribed by the Statute be followed. The respondent herein did not do what the law mandates it to do under Regulation 7(2) of the Irrigation Regulations 1977 made under Chapter 347 Laws of Kenya. Similarly, the respondent in its award dated 20th March 2014 made a decision that affected the rights of the applicant without giving him an opportunity to be heard. That was a breach of the rules of Natural Justice – see RIDGE VS BALDWIN 1963 2 ALL E.R 66. In view of the above, the award of the Sub-Advisory Committee of the respondent is amenable to orders on Judicial Review as sough herein.

Ultimately therefore, I allow the application dated 1st July 2014 and grant the orders sought therein. The respondent shall meet the applicant’s costs.

It is so ordered.

B.N. OLAO

JUDGE

26TH OCTOBER, 2015

26/10/2015

Before

B.N. Olao – Judge

Gichia – CC

Mr. Kahigah for Applicant – present

Ms Kiragu for Mr. Ombachi for Respondent and interested parties present

COURT: Judgment delivered this 26th October, 2015 in open Court

Mr. Kahigah for Applicant present

Ms Kiragu for Mr. Ombachi for Respondent and Interested parties present

Right of appeal explained.

B.N. OLAO

JUDGE

26TH OCTOBER, 2015