[2016] KEELC 321 (KLR)
The Court found that while the Respondent has statutory authority under the Irrigation Act and its Regulations to issue and terminate licences, such powers must be exercised in accordance with the law and for valid reasons. The Applicant raised a prima facie case that his licence may have been terminated without...
Source-derived case information.
- Citation
- [2016] KEELC 321 (KLR)
- Parties
- Applicant: Republic; Respondent: The National Irrigation Board through The Manager Mwea Settlement Scheme; Interested Party: Esther Ndunge; Applicant: Samuel Gachoki Muriuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 5 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review
- Outcome
- Leave granted to apply for judicial review; stay declined.
- Judges
- BN Olao
- Legal Topics
- Judicial Review, Licence Termination, Administrative Powers, Irrigation Schemes, Land Tenancy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The National Irrigation Board through The Manager Mwea Settlement Scheme
Respondent
Esther Ndunge
Interested Party
Samuel Gachoki Muriuki
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review
Legal Issues
- 1 Whether the Respondent had jurisdiction to terminate the Applicant's rice holding licence under the Irrigation Act.
- 2 Whether the termination of the Applicant's licence was done in accordance with the law and with reasons.
- 3 Whether the Applicant is entitled to leave to commence judicial review proceedings.
Ratio Decidendi
The Court found that while the Respondent has statutory authority under the Irrigation Act and its Regulations to issue and terminate licences, such powers must be exercised in accordance with the law and for valid reasons. The Applicant raised a prima facie case that his licence may have been terminated without adherence to statutory requirements or sufficient reasons. Consequently, the Applicant established sufficient grounds for the grant of leave to commence judicial review proceedings. However, since the licence had already been terminated, the Court declined to grant a stay of the decision. The Applicant was directed to file the substantive Notice of Motion within 21 days and serve...
Court Disposition
Leave granted to apply for judicial review; stay declined.
Orders
- Leave is granted to the Applicant to institute judicial review proceedings against the Respondent.
- The Notice of Motion shall be filed within 21 days of this ruling.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
MISC JUDICIAL REVIEW APPLICATION NO. 5 OF 2016
IN THE MATTER OF THE IRRIGATION ACT CAP 347 LAWS OF KENYA
AND
IN THE MATTER OF MWEA SETTLEMENT SCHEME
AND
IN THE MATTER OF MWEA SETTLEMENT SCHEME ADVISORY COMMITTEE
AND
IN THE MATTER OF RICE HOLDING NO. 1487 C OF MWEA SETTLEMENT SCHEME
AND
IN THE MATTER OF AN APPLICATION FOR ORDER OF CERTIORARI AGAINST THE AWARD OF MWEA SETTLEMENT SCHEME ADVISORY COMMITTEE DATED 22/6/2016 BY JUDY WACERA MWANGI
REPUBLIC…………………………....……………..…………APPLICANT
VERSUS
THE NATIONAL IRRIGATION BOARD Through
THE MANAGER MWEA SETTLEMENT SCHEME…......…RESPONDENT
ESTHER NDUNGE……………….……………..……INTERESTED PARTY
SAMUEL GACHOKI MURIUKI…………….…..….EX-PARTE APPLICANT
RULING
The Ex-parte Applicant herein SAMUEL GACHOKI MURIUKI has by his Chamber Summons dated 16th August 2016 sought leave to being into this Court and quash the verdict of the Respondent dated 22nd June 2016 in respect of rice holding No. 1487 A.
It is the Ex-parte Applicant’s case that he and his co-licencees JUDY WACERA MWANGI and ANTHONY KINYUA WARUI are the licencees of rice holding No. 1487 A measuring 1½ acres. However, the Interested party and her family lodged a claim with the Respondent who made a decision on 22nd June 2016 terminating his licence and granting the rice holding to the Interested party.
It is the Ex-parte Applicant’s case that he has not contravened the provisions of the Irrigation Act to warrant cancellation of his licence and in any event, the Respondent has no powers to do so and in so doing, violated his rights as a tenant. In arguing the application, his counsel Mr. KIAMA argued that the cancellation of the Ex-parte Applicant’s licence was done without reasons.
I have considered the application, the statement of facts and other annextures thereto.
It cannot of course be true, as pleaded by the Applicant, that the Respondent’s Advisory Committee lacks the jurisdiction to cancel the licence issued under the Irrigation Act. The Irrigation (National Irrigation Schemes) Regulationsmade under the Irrigation Act clearly stipulate that the Respondent has powers to issue and terminate licences. However, there are conditions stipulated in the Irrigation Regulations governing when such licences can be terminated. If indeed it is true that the termination of the Ex-parte Applicant’s licence was done without regard to the provisions of the Act or for no reasons, then this Court will be obliged to intervene. Should it also be correct, as alleged, that the Applicant did not contravene any provisions of the law to warrant the cancellation of his licence, then a prima facie case is made out to warrant the orders sought.
From the above, I am satisfied that the Ex-parte Applicant has established good grounds for the grant of leave to institute Judicial Review proceedings against the Respondent and I hereby direct, in accordance with Rule 3 (1) of Order 53 of the Civil Procedure Rules that the Notice of Motion be filed within 21 days hereof. I further direct that the said Notice of Motion be served upon the Respondent, the Interested party and all other such persons as may be affected by it within 14 days of filing. The Applicant shall also file and affidavit stating who has been served with the said Notice of Motion.
As the licence has already been terminated, I do not see what purpose will be served by ordering a stay and I decline to issue such orders.
Costs shall be in the Notice of Motion.
Further, I notice that this application together with Miscellaneous Judicial Review Application Numbers 4 and 6 of 2016 arise out of the same proceedings in that they relate to the same Respondent, Interested party and rice holding. At the appropriate time, there may be a need to have them consolidated.
B.N. OLAO
JUDGE
14TH OCTOBER, 2016
Ruling dated, delivered and signed in open Court this 14th day of October 2016
Mr. Kihara for Mr. Kinyua for the Applicant present
Mr. Gichia Court Clerk present.
B.N. OLAO
JUDGE
14TH OCTOBER, 2016