[2016] KEELC 293 (KLR)
The court found that while the Respondent possesses the statutory power to terminate licences under the Irrigation Act and its Regulations, such power must be exercised in accordance with the law and for valid reasons. The Ex-parte Applicant established a prima facie case that the termination may have been effected...
Source-derived case information.
- Citation
- [2016] KEELC 293 (KLR)
- Parties
- Applicant: Republic; Respondent: The National Irrigation Board through The Manager Mwea Settlement Scheme; Interested Party: Esther Ndunge; Applicant: Anthony Kinyua Warui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 4 of 2016
- Procedural Posture
- Misc Judicial Review Application / Ruling on Application for Leave to Commence Judicial Review Proceedings
- Outcome
- Leave granted to the Ex-parte Applicant to commence judicial review proceedings; stay declined; costs in the Notice of Motion.
- Judges
- BN Olao
- Legal Topics
- Judicial Review, Licence Termination, Administrative Powers, Irrigation Schemes, Procedural Fairness
- 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
Anthony Kinyua Warui
Applicant
Procedural Posture
Misc Judicial Review Application / Ruling on Application for Leave to Commence Judicial Review Proceedings
Legal Issues
- 1 Whether the Respondent had jurisdiction to terminate the Ex-parte Applicant's licence under the Irrigation Act.
- 2 Whether the termination of the licence was done in accordance with the law and with sufficient reasons.
- 3 Whether the Ex-parte Applicant is entitled to leave to commence judicial review proceedings.
Ratio Decidendi
The court found that while the Respondent possesses the statutory power to terminate licences under the Irrigation Act and its Regulations, such power must be exercised in accordance with the law and for valid reasons. The Ex-parte Applicant established a prima facie case that the termination may have been effected without proper legal basis or reasons, justifying the grant of leave to commence judicial review proceedings. The court therefore granted leave to the Ex-parte Applicant to file a substantive motion challenging the Respondent's decision, but declined to grant a stay of the termination as the licence had already been cancelled.
Court Disposition
Leave granted to the Ex-parte Applicant to commence judicial review proceedings; stay declined; costs in the Notice of Motion.
Orders
- Leave is granted to the Ex-parte Applicant to file a Notice of Motion for judicial review within 21 days.
- The Notice of Motion to be served upon the Respondent, Interested party, and any other affected persons within 14 days of filing.
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. 4 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
ANTHONY KINYUA WARUI……………...……….EX-PARTE APPLICANT
RULING
The Ex-parte Applicant herein ANTHONY KINYUA WARUI has by his Chamber Summons dated 16th August 2016 sought leave to bring into this Court and quash the verdict of the Respondent dated 22nd June 2016 in respect of rice holding No. 1487 (B).
It is the Ex-parte Applicant’s case that he and his co-licencees JUDY WACERA MWANGI and SAMUEL GACHOKI MURIUKI are the designated licencees of the rice holding No. 1487 B measuring 1 acre. However, the Interested party together with other family members lodged a claim with the Respondent who made a decree on 22nd June 2016 terminating his licence and awarded the said 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 the 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.
While arguing this application, the Ex-parte Applicant’s counsel Mr. KIAMA submitted that the cancellation of the Ex-parte Applicant’s licence was done without reasons.
I have considered the application, the statement of facts and the annextures thereto.
It cannot of course be true, as submitted by the Ex-parte Applicant, that the Respondent’s Advisory Committee lacks the jurisdiction to cancel the licence issued under the Irrigation Act. The Irrigation (National Irrigation Schemes) Regulations made under the Irrigation Act clearly stipulates that the Respondent has powers to issue and terminate licences. However, there are conditions stipulated in the Irrigation Regulation 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 at all, 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 sufficient 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 Rulesthat the Notice of Motion be filed within 21 days hereof. I further direct that the said Notice of Motion 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 Ex-parte Applicant shall also file an 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 an order. Costs shall be in the Notice of Motion.
Further, I notice that this application together with Miscellaneous Judicial Review Application Numbers 5 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