Mwea Foundation & Legal Advice Centre T/A Kituo Cha Sheria v Attorney General, Cabinet Secretary, Ministry Of Agriculture, Livestock And Fisheries & National Irrigation Board [2013] KEHC 1617 (KLR)

IN THE HIGH COURT AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 521 OF 2012

BETWEEN

MWEA FOUNDATION………….....................….. 1ST PETITIONER

LEGAL ADVICE CENTRE t/a

KITUO CHA SHERIA …………………………....2ND PETITIONER

AND

THE ATTORNEY GENERAL ……………….….1ST RESPONDENT

THE CABINET SECRETARY,

MINISTRY OF AGRICULTURE, LIVESTOCK

AND FISHERIES …………………………….....2ND RESPONDENT

THE NATIONAL IRRIGATION BOARD …....3RD RESPONDENT

JUDGMENT

Background

This case concerns the governance of the Mwea Irrigation Scheme (“the Scheme’), located in Kirinyaga County. The Scheme was established in 1956 and is one of the seven public schemes under management of National irrigation Board.

The history of the Scheme can be traced back to the emergency period, where between 1956 and 1957 the colonial government used the area as a holding ground for release of detainees. The detainees were used to clear the land and dig canals. The whole scheme was founded on the colonial agrarian regime that did not admit competition from Africans. Part of this policy was achieved by driving Africans from productive lands and settling them on marginal areas where their agricultural activities were strictly controlled as to lessen competition with European agriculture. Under this superstructure, the Scheme was governed through regulations issued under the ordinance of the Africa District Council.

The status of the Scheme is summarised in a report of the Kenya Human Right Commission (“KHRC”) commissioned in 2000 titled “Dying to be Free; The Struggle for Rights in Mwea.”The report documents the history of the Scheme and concludes that, “It is evident therefore that in its philosophy, the regime established under the NIB is a replication of the colonial system. ….. Under this legal framework NIB is the real owner of the land. It is feudal overlord and farmers are ‘mere licencees’”.

Although the Scheme was brought under the National Irrigation Board (“the Board”) established in 1966 under the Irrigation Act (Chapter 347of the Laws of Kenya)(“the Act”),the rules governing the Scheme had been enacted as By-laws under the Africa District Council Ordinance, 1950 and continued in force.

Pursuant to section 27 of the Irrigation Act, the Minister via Legal Notice No. 68 of 1977 gazetted the Irrigation (National Irrigation Schemes) Regulations to apply to all areas designated as National Irrigation Schemes. The farmers remain licencees producing rice under the management and direction of the Board.It is these regulations that are subject of the present petition and which the petitioner seek to impugn as unconstitutional.

Petitioners’ case

The 1stpetitioner, Mwea Foundation is a registered trust under the while the 2nd petitioner is a human rights non-governmental organisation founded in 1989 to provide legal aid to the poor and the marginalised.

It is the petitioners’ case that certain regulations of the Irrigation (National Irrigation Schemes) Regulations (“the Regulations”) under the Act violate the rights and fundamental freedoms of the petitioners and are thus null and void. Their case is outlined in the amended petition dated 1st July 2013 and supported by the affidavits of Getrude Angote, the executive director of Kituo cha Sheria and Lydia Mukami, a chairlady of Mwea Foundation. They seek the following declarations;

A declaration that rule 4, 7, 8 and 10 of the Irrigation (National Irrigation Scheme) Regulations are in contravention of the Kenya Constitution 2010.

A declaration that the Irrigation (National Irrigation Schemes) Regulation cannot effectively administer the irrigation schemes once the aforementioned provisions are severed.

A stay of the Irrigation (National Irrigation Schemes) Regulations as relates to giving effect to Section 27 of the Irrigation Act of the Irrigation Act Cap 347 until new rules that are compliant with the Constitution are drawn by the Minister of Cabinet Secretary for Agriculture, Livestock and Fisheries.

Costs of and incidental to this petition.

I shall deal with the impugned regulations and arguments later in the judgment.

Respondents’ Case

The Board opposes the petition through a replying affidavit of its General Manager Eng. Daniel K Barasa sworn on 2nd May 2013 and a further affidavit sworn on 6th August 2013. Its position is that it is that it is no longer involved in the milling and marketing of produce, that in reality the impugned regulations are no longer enforced and that reforms are under way to streamline the management of the irrigation project.

Eng. Barasa deposed that the Board was responsible for running the Scheme until 1998 as mandated by the Act.It was responsible for all activities in the production chain including land preparation, credit provision, crop husbandry, harvesting and marketing of produce. It also undertook milling activities through its subsidiary, Mwea Rice Millers Limited.   In 1998, there was a turning point in the Scheme as the farmers revolted against the Board. As a result in 1998/1991 the Board withdrew from handling of milling and marketing of produce as the farmers demanded to be allowed to market their own produce. Mwea Rice Farmers Cooperative Society took over the Scheme’s management during the period 1999 to 2003.

Eng. Barasa deposes that the farmers realised that they could not manage their affairs due to lack of skilled personnel, lack of finances and lack of machinery for scheme maintenance. Consequently, during this period the Scheme infrastructure deteriorated and operations nearly ground to a halt.

Following the events of 1998, a subsequent and follow up study was conducted by KHRC titled “Current Status of Mwea Tebere Rice Farmers after Market Liberalization: Change for the Better or Business as Usual.”According to the report, the major issues that led to the farmers revolt in 1998 – 1999 included the following;

Land Tenure system arising from the fact that the rice farmers were mere licencees of the Board without any interest in the land and who duty was to cultivate land for the benefit of the Board.

The Board monopolistic production and marketing structures. The Board was the exclusive provider of farm inputs on credit and the exclusive buyer of all the rice.  The farmers had no participation in the process.

Restricted production system where the tenant farmer had four acres exclusively for rice production.  Farmers could not keep livestock or grow vegetables. Because of dependence on rice, farmers were vulnerable to food insecurity.

Restriction of quantities the farmer could keep for own consumption.

Lack of sanitation, clean drinking water and fuel wood availability.

The Report, at page 23, concluded that, “[T]he rebellion came up with changes that are both beneficial and detrimental to farmers, hence compromising on the anticipated gains of the struggle. There are issues that have emerged after liberalization either impacting positively or negatively to the community in the [Scheme]. The Study also indicated that some of the major constraints or factors that triggered the revolution were addressed though not adequately, other are yet to be addressed and going against the tenets of social justice and human rights.”

In 2003, following a Report of the Government Inter Ministerial Committee, the Board returned to the management of the Scheme by taking limited roles after going through a restructuring process with involved dropping of non-core activities and reverting the same to the farmers and other stakeholders. The Board’s role is now limited to issues of water management, operation and maintenance of infrastructure in the Scheme. That it has actively involved farmers in running of the Scheme through Participatory Irrigation Management (PIM) and it is expected that in future the schemes will be managed by farmers through the process of Irrigation Management Transfer (IMT).

The Board submits that the provisions of the Irrigation Act and the Irrigation (National Irrigation Schemes) Regulationsare to a large extent no longer applied. The Board no longer undertakes production and marketing of crops, the farmers and their families are allowed, without restriction, to reside in specific areas of the Scheme set aside for residential purposes, put up houses and rear cattle. The Board avers that the provisions of the Act are only applied to the extent of protection and maintenance of irrigation infrastructure for the public good and for the benefit of all farmers.

The Board pointed to recent reform efforts geared towards transforming and improving the entire irrigation sector in order to adhere to constitutional requirements, particularly Chapter 5of the Constitution on land and environment. The Board states that it is working closely with the Ministry of Water and Irrigation and other stakeholders so as to support reforms in running of schemes.  Eng. Barasa highlighted these efforts which are contained in the National Irrigation BoardReport of the Quarter Two Performance Contract and Monitoring and Evaluation (“the report”) dated January 2013.  The efforts include the following;

The Ministry of Water and Irrigation has also actively engaged Parliament in efforts aimed at similarly addressing the challenges facing operations in irrigation schemes.

The Ministry of Water and Irrigation and the Board have spearheaded the drafting of the Irrigation and Drainage Bill 2012 which is pending for discussion and enactment by Parliament.

The Ministry and the Board have also been engaged in efforts aimed at amending, consolidating and enacting other agricultural sector legislation.

The Board has entered into a performance contract with the Government which contract makes provisions of various strategies and objectives aimed at transforming and improving operations of the entire irrigation sector.

The Ministry of Water and Irrigation has also drafted The National Irrigation and Drainage Policy which aims at addressing all concerns raised by the petitioners.

The Board admitted that it does not enforce all the impugned regulations that are the subject of the petition and it complies with all Constitutional provisions. It avers that the Scheme is the most profitable irrigation scheme in Kenya generating about Kshs3 Billion annually, a fact it attributed to the professional management of the Scheme by the Board and other stakeholders.

The Board denies the petitioner’s allegation that the respondents have neglected to revise the regulations adding that they are actively engaged in amending, consolidating, revising and enacting new laws, Rules and Regulation within the irrigation sector. The Board avers that the Government and donors have invested heavily in the irrigation schemes and it will not augur well for the regulations applicable to the Scheme to be annulled without a replacement as this would lead to collapse of irrigation Schemes.

The 1st and 2nd respondents did not file responses. Ms Kungu, their counsel, adopted the position taken by counsel for the 3rd respondent.

Determination

In determining whether legislation or regulations are unconstitutional, the court begins from the premise that the same are constitutional and it is the burden of the petitioner to establish that the Constitution has been violated (See Ndyanabo v Attorney General[2001] EA 495).

In order to determine the constitutionality of legislation, the overall object and purpose of the Act must also be considered (See Murang’a Bar Operators and Another v Minister of State for Provincial Administration and Internal Security and OthersNairobi Petition No. 3 of 2011, Samuel G. Momanyi v Attorney General and AnotherNairobi Petition No. 341 of 2011, Hon. Chirau Ali Mwakwere v Robert Mabera & 4 others,Nairobi Petition No. 6 of 2012).The principle was clearly enunciated in the Canadian case of R. v Big M Drug Mart Ltd.,[1985] 1 S.C.R. 295 where the Supreme Court stated that, “[t]he initial test of constitutionality must be whether or not the legislation's purpose is valid; the legislation's effects need only be considered when the law under review has passed the purpose test. The effects test can never be relied on to save legislation with an invalid purpose.”

The Irrigation (National Irrigation Schemes) Regulationswere made pursuant to section 27 of the Irrigation Actwhich provides thus;

27.    The Minister may, after consultation with the Board, make regulations generally for the better carrying out of the purposes and provisions of this Act, and without prejudice to the foregoing generality those regulations may provide for—

(a)    the administration and day to day control of national irrigation schemes;

the standards of good husbandry and the control of pests and diseases in national irrigation schemes;

the methods of harvesting, collection, storage, transport, processing, marketing and sale of produce grown on national irrigation schemes;

the regulation of, and the rates payable for, the use of water on national irrigation schemes;

the licensing of contractors to perform  any function connected with a national irrigation scheme.

Section 11 of the Act establishes the position of a ‘General Manager’ in the following terms;

11(1)There shall be an officer of the Board, to be known as the General Manager, who shall be appointed by the Board, subject to the approval of the Minister, and who shall be responsible for the execution of the policy of the Board and for the control and management of its day to day business.

(2)The Board shall delegate to the General Manager such of its functions under this Act as are necessary to transact effectively the day-to-day business of the Board of any kind whatsoever…

The purpose of the regulations can be found from the purport Act set out in it’s, “An Act of Parliament to provide for the development, control and improvement of irrigation schemes, and for purposes incidental thereto and connected therewith.” I therefore find and hold that the purpose of the regulations is constitutionally valid. This calls for an analysis whether the regulation have an unconstitutional effect as claimed by the petitioners.

Such determination must be made within the context of the Bill of Rights. Under Article 19, the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. Clause (2) states that the purpose of recognising and protecting human rights and fundamental freedoms is “to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings,”while Article 20 stipulates that, every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

At the core of this case is the relationship between the State whose interest is managed by the Board and the licencee who holds a licence with terms and conditions in accordance with the Irrigation (National Irrigation Schemes) Regulations.  As I have stated before, the purpose of the regulations is to provide for the good order of the Scheme but it is admitted that historically there have been problems in relationship leading to a revolt by the farmers which has led to a shift in the nature of the relationship within the framework of the licence.  The shift has been hastened by the imperatives imposed by the Constitution promulgated in 2010.

It is against this background that the impugned regulations must be examined.

Regulation 4

Regulation 4 of the Regulationsis impugned on the ground that it violates Article 39 of the Constitution, which guarantees every person the right to freedom of movement. The regulation states that, “Any person who resides in, carries on business in or occupies any part of the scheme of grazes any stock thereon shall, unless he is the holder of a valid licence granted to him under these Regulations by the manager with the approval of the committee or is the authorised dependant of such licensee, be guilty of an offence.”

Admittedly, Regulation 4 infringes on this right by restricting the occupation in the area to only those with licenses or their authorised dependants. According to the petitioner’s a strict application of the regulation means that the licencee cannot reside on the Scheme with his wife or adult children. The regulations are also discriminatory contrary to Article 27 in as far as they exclude persons from occupation on the basis of age and marital status restricting it to persons aged less than 18 years and who are unmarried.

Although the Board as a licensor has broad powers to regulate and prescribe the terms of the occupation of the Scheme, such regulation must be reasonable and comply with the provisions of Article 24 of the Constitution.  I do not find any justification for maintaining the exclusion of persons and their dependants and restraining other economic activities from the Scheme by imposing burdensome regulations underpinned by criminal sanctions.

Reference to Article 39(3) which provides that, “Every citizen has the right to enter, remain in and reside in Kenya” to impugn the regulation is not well founded.  The right to reside anywhere in Kenya is not absolute. The land subject of these proceedings is an irrigation scheme established for a specific purpose.  The right to reside anywhere in Kenya is regulated by land tenure systems sanctioned by Chapter Five of the Constitution and other laws made to govern land use which are enacted pursuant to Article 66. Settlement and occupation of the Scheme is determined by the Irrigation Act and made regulations thereunder and these do not contravene Article 39.

I therefore declare Regulation 4 unconstitutional to the extent that it excludes persons from occupation of the Scheme who are dependants of the licencee on the basis of age and marital status contrary to Article 27.

Regulation 7

Regulation 7 is one that provides as follows;

A licensee may, at any time after the date of being granted a licence, nominate, in writing to the manager, another person to succeed him as licensee in the event of his death, and a licensee may at any time, in writing to the manager, revoke or alter the nomination which may have been made by him:

Provided that no person nominated as successor may succeed until he has attained the apparent age, his guardian under customary law may, within one month of the licensee’s death and with approval of the manager, appoint a person to act on his behalf until the successor is of age.

No person nominated as a successor may succeed without the approval of the committee.

The authorised dependant of a deceased licensee may, within thirty days of his death, appeal to the court against the nomination under paragraph (1) of a successor.

The authorised dependant may;

Where a licensee dies without having nominated a successor in accordance with paragraph (3), an appeal to the court against the nomination of a successor has been successful, within one month of the death of the licensee or one month after the determination of the appeal. As the case may be, nominate, in writing to the manager, a successor who must be approved by the court.

According to the petitioners, the consistent use of the masculine gender pronouns such as “he” and “him” does not indicate that women may be successors of the licencee. The petitioners submit that this is a violation of Article 60(i)(f) which specifically provides that land administration must be in line with the principle of elimination of discrimination on the basis of gender in law related to land and property and Articles 27(3) and 27(4)on the right to equal treatment and non-discrimination. Further, that it discriminates on the basis of marital status, by giving succession privileges to “authorised dependants” which excludes married children.

This valid concern is however easily addressed by section 3(3)of the Interpretation and General Provisions Act (Chapter 2 of the Laws of Kenya)which states that, “In every written law, except where a contrary intention appears, words and expressions importing the masculine gender include females.”Given our history and patriarchal culture, older legislation tends to refer to the ‘male’ gender. This practice has now evolved and modern day legislative drafting leans towards the use of gender-neutral expressions as far as possible. It follows therefore, that based solely on the fact of drafting defect in use of masculine adjectives, the provision can also be remedied by application of section 7(1) of the Sixth Schedule to the Constitution which provides that all law in force immediately before the effective date shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them in conformity with the Constitution.  Such alterations for purposes of Regulation 7 shall include construing it in a gender neutral manner.

Regulation 8

Regulation 8 is impugned on the grounds that it creates a master–servant relationship in contravention of Article 30(1) and (2) which bans any form of slavery and forced labour. Further, that the licences issued to the farmers violate Article 40 of the Constitution, read together with Article 60 which states that land administration must follow the principle of security of all land rights, in that the licenses do not guarantee tenure since the management reserves the right to cancel them at will.

The regulation stipulates as here below;

Every licensee shall be granted subject to the following conditions –

A licensee shall devote his full personal time and attention to the cultivation and improvement of his holding and shall not without the permission, in writing of the manager allow any other person to occupy his holding or to cultivate it on his behalf.

A licensee shall maintain the boundaries of his holding in a manner satisfactory to the manager;

A licensee shall maintain at all items his holding all field, feeder and drainage channels to the satisfaction of the manager;

A licensee shall maintain to the satisfaction of the manager all irrigation channels and works on or serving his holding;

A licensee shall cultivate his holding to the satisfaction of and in accordance with the crop rotation laid down by the manager and shall comply with all instructions given to the manager relating to the cultivation and irrigation of his holding.

A licensee shall comply with all instructions given by the manager with regard to good husbandry, the branding, dipping, inoculation, herding, grazing or watering of stock, the production and use of manure and compost, the presentation of the fertility of the soil, the prevention of soil erosion, the plating, felling, stumping and clearing of trees and vegetation and the production of silage and hay;

A licensee shall not hire, cause to be hired or employ stock or machinery for cultural operations, other than stock and machinery owned by the manager, without prior approval in writing from the manager.

A licensee shall not absent himself from the scheme for longer within one month without prior approval in writing of the manager.

Any licensee who fails to comply with the conditions specified in paragraph (1) shall be guilty of an offence.

Any licensee who refuses or without reasonable excuse fails, to comply with any of the conditions of this regulation shall in addition to any penalty that may be imposed under paragraph (2) be liable to have his licence terminated by the Minister, on the recommendation of the manager (after confirmation by the committee) and the Minister’s decision shall be final.

The petitioners contend that the effect of regulation 8(g) is that the farmers have to buy services like tilling from the Board at a higher cost than the free market, in contravention of Article 41, as well as Article 7(a) of the International Covenant on Economic, Social and Cultural Rights, which both state that every person has the right to fair labour practices.

Regulation 8 anchors the relationship between the Board and licencee. Do the conditions imposed in the licence result in a relationship of slavery or servitude? The generally accepted definition of slavery is contained in the Slavery Convention of 1927 at Article (1) which defines slavery as, “the status or condition of a person over whose any or all powers attaching to the right of ownership are exercised.”Article 4 of the Universal Declaration of Human Rights prohibits slavery and servitude.Servitude refers to “slavery-like practices.”  The conventions are now part of our law by virtue of Article 2(6) of the Constitution. The definition of forced labour set out by Article 2(1) of International Labour Organisation Forced Labour Convention of 1930, ‘all work or services which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.’

While the regulation is onerous on its face, it does not meet the test of slavery or forced labour.  The licence is voluntary relationship and the terms of the relationship are defined by reference to the manner in which the land is to be used. I however note that the effect of these conditions particularly paragraphs (a), (g)and (h) violate the petitioners’ right to fair labour trade practices contrary to Article 41. The responsibility and ability to utilise the land holding cannot be tied to the licencee himself or herself and to insist that the licencee devote his entire time and resources without the ability to contract labour or use family members is unreasonable.   I do not find such infringement to be reasonable in a just and democratic society and accordingly declare them unconstitutional in as far as their effect is to unreasonably limit on the petitioners’ right to fair labour practices.  The violation is aggravated by the fact that it is underpinned by criminal sanctions.

I decline to the invitation to invalidate paragraphs (b), (c), (d), (e)and(f) of Regulation 8 as this would change the nature of the tenure. The land occupied by the licencees is an irrigation scheme which must be maintained in accordance with certain standards to maintain it as such. The land occupied is not private land and the manner in which it is to be maintained is determined by the Act of Parliament, in this case the Irrigation Act.

Regulation 10

The petitioners complain that Regulation 10is unconstitutional in that it negates the principle of fair administrative action and hearing contrary to Article 47, in that the manager sets the standards to be achieved for housing, judges if the standards have been achieved and metes out punishment if they are not.

The provisions of the regulation are as set out below:

The manager may allocate to a licensee a house to be occupied by him within the scheme, or may permit a licensee to erect his own house.

In either event it shall be the duty of the licensee to maintain his house, and precincts to the satisfaction of the manager, and if the manager is dissatisfied with the condition of the house or precincts he may give written notice to the licensee to the repairs which he considers necessary and specify a reasonable time within which they must be completed.

If licensee fails to complete such repairs with the time specified and the satisfaction of the manager, the manager may cause such repairs to be carried out and may recover the cost thereof from the licensee.

The licensee may not occupy any house other than that allocated to him without prior permission, in writing, from the manager.

A licensee shall not construct buildings, or other works of any kind on his holding or elsewhere in the scheme without the prior consent, in writing, of the manager and in the event of his having erected a structure or building without such consent, the manager may direct, in writing, that the structure be removed and the land returned to the original state and if the licensee fails to comply with this direction within one month, the manager may enter the building or structure for the purpose of demolition and any expenses incurred by the manager for the removal of the building or structure may be recovered from the licensee.

The petitioners aver that the entire regulation is in contravention of the Constitution as it is open to abuse. That these powers, which include the right to carry out searches of private homes and to carry out repairs on the private houses of the farmers at their expense if they do not meet his satisfaction, is in contravention of Article 31 which states that every person has the right to privacy including the right not to have their person, home or property searched.

The right to fair administrative action protected under Article 47and rules of natural justice is to be presumed in every administrative act whether or not expressly stated in the statute. A regulation cannot be declared unconstitutional merely because it is open to abuse.  What is important is that there is a remedy for the abuse.  It is for this reason that the court, in the absence of actual breach of this right, need not intervene on the basis that the regulations do not provide for the exercise of due process in the manner in which the manager discharges his functions.

I would also add that for the reasons I stated in paragraph 30, the right to reside and construct a house in the Scheme is not absolute because of the nature of the land tenure.  The terms of occupation set out in regulation 10 are akin to the covenants found in a lease agreement where the landlord has the right to limit the developments that take place on the land.  It must be recalled that Mwea-Tebere is an irrigation scheme hence it is necessary to limit the nature and type of construction that will interfere with the purpose of the Scheme.

Lack of enforcement

The respondents have defended the petition on the ground that these regulations are no longer enforced. While it is true that the respondents no longer enforce them, the continued existence of unconstitutional laws is a bane to our democracy and constitutionalism. The court has an affirmative duty to declare such laws unconstitutional by virtue of Article 2(4)which provides that, “Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”

The Board cannot claim that declaring the regulations unconstitutional will result in a lacuna in law. The Court is obliged to declare an unconstitutional provision is invalid and in the eyes of the Constitution it is safer to have a gap than ‘fill it’ with unconstitutional laws. Unconstitutional laws are a burden and rob from the people their dignity by giving official imprimatur to unconstitutional conduct.

I recognise that there are efforts underway to reform the law in the irrigation sector but this does not shield unconstitutional law from the court’s eye.  It is in fact an admission that steps are being taken to remedy the unconstitutional situation. Citizens should not be told that it is alright to continue being irked by unconstitutional laws with the promise of ‘better days’ in the future. To accede to this argument the court will in essence be telling the petitioners, “you don’t worry, let the unconstitutional provisions continue to survive and we promise not to enforce them.” We would telling the farmers in the Scheme to live with a cloud of uncertainty and fear hanging over their lives.

Indeed, the petitioners’ uncertainty and fear, which is not unreasonable can be picked from the affidavit of Lydia Mukami in which she deposes as follows;

[38] THAT since this uprising by the farmers in 1999 the NIB rarely applies the draconian elements of the irrigation Regulations. However the farmers live in fear of these Rules having suffered for so long under them.

[39] THAT the farmers are afraidthat a different regime could come to power and then enforce the Rules again to the letter.”

The Board itself admits that it no longer enforces the impugned rules but at the same time decries that grant of the orders would leave a lacuna. I see no purpose of delaying the inevitable. The respondents are by all means free to continue the reform agenda that is in the pipeline. In the meantime, the offending provisions must be so declared and rendered as invalid.

I also take judicial notice that by virtue of the Second Schedule to the recent Crops Act (No. 16 of 2013), the Irrigation Act shall stand repealed. The Act which was assented to on 14th January 2013 is however yet to commence at the time of writing this judgment. By virtue of section 42 of that Act, all statutory instruments issued or issuable under the repealed Act shall be deemed to have been repealed, unless the Authority otherwise directs.  This may allay some of the petitioners’ concerns.

Disposition

The position I have taken may not ameliorate the plight of the farmers in Mwea-Tebere Irrigation Scheme. The underlying problem of land tenure system ought to be reviewed to align it with Chapter Five of the Constitution. I would venture to state by way of an epilogue that the petitioners’ grievances and problems are beyond specific regulations governing the Scheme.  They fall under a wider framework of social and economic rights protected under Article 43 and would have been better resolved by articulating their issues from that perspective.

Having reviewed the petitioners’ case, I make the following declarations;

That regulation 4of the Irrigation (National Irrigation Schemes) Regulations is unconstitutional to the extent that it excludes persons from occupation of the Scheme who are dependants of the licencee on the basis of age and marital status contrary to Article 27.

Thatregulation 8 (a), (g) and (h) of the Irrigation (National Irrigation Schemes) Regulations is unconstitutional as it violated Article 41 of the Constitution.

There shall be no order as to costs.

DELIVEREDand DATEDatNAIROBIthis 1st day of November 2013

D.S MAJANJA

JUDGE

Ms Mburugu, Advocate, instructed by Legal Advice Centre for the petitioners.

Ms Kungu, Litigation Counsel, instructed by the State Law Office for the 1st and 2nd respondent.

Mr Juma instructed by J. O. Juma and Company Advocates for the 3rd respondent.