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ELCDismissedNot stated in the extract (original suit filed 18/7/2014)· [2019] KEELC 1774 (KLR)

Kukam Limited v Kenya National Highways Authority & 2 others [2019] KEELC 1774 (KLR)

Environment and Land Court
17 September 2019
BEB M Eboso
1,909 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to dismiss a Kshs 566 million demolition compensation claim, ruling that NLC decisions cannot replace a full court trial.

What this practically means

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Executive summary

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Kukam Limited sued, contending it was the registered proprietor of Nairobi/Block 72/3081, allocated by the Government in 2003, and that in 2013 agents of the 1st and 3rd defendants demolished 37 dwelling units it had developed, of which 26 had been sold. It sought declarations, compensation exceeding Kshs 566 million for the demolished structures, compensation or reallocation for the land, general, punitive and exemplary damages, costs and interest. The 1st defendant, the roads authority, denied liability, asserting the structures stood on a road reserve, that the allocation was irregular, and that notice to remove illegal structures had been gazetted. The 1st defendant then applied by notice of motion dated 25/8/2017 to strike out the suit, relying on a 2017 determination by the National Land Commission (2nd defendant) that the title related to illegally allocated public utility land and ought to be revoked. The plaintiff opposed, maintaining that the demolition was unlawful, that the gazette notice was an afterthought published years after the demolition, and that the defendants' stated reasons were contradictory. The court, applying the D.T. Dobie test, held that striking out is a draconian jurisdiction to be exercised only in plainly hopeless cases. It found several triable issues: the regularity of the allocation, whether the structures were on a road reserve, and whether prior notice was given. It further held that the NLC is not a court of law, and its 2017 determination, made during the pendency of the suit, could not dispose of the claim arising in 2013 or absolve the 1st defendant. The application was declined with costs in the cause.

Key legal issues

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01

Whether the suit discloses triable issues against the 1st defendant warranting striking out

Holding

The suit discloses several triable issues and cannot be struck out

Reasoning

The court examined the pleadings and identified multiple contested issues: irregularity of the allocation of the suit property, whether the demolished developments stood on a road reserve, and whether prior notice of demolition was required and given. A semblance of a cause of action requires that the suit proceed to full trial rather than be summarily dismissed.

p. 2
02

Whether the NLC's 2017 review determination extinguished the plaintiff's claim

Holding

The NLC's 2017 determination does not absolve the 1st defendant from liability for the 2013 demolition

Reasoning

The NLC is not a court of law and its determinations are challengeable. Its determination was made in 2017, after the 2013 cause of action arose, and during the pendency of the suit. It would be irrational to hold, without a full hearing, that this determination disposed of the plaintiff's claim. A full hearing is required.

p. 3

Legal principles established

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  • Striking out a suit is a draconian jurisdiction to be exercised cautiously only in plainly hopeless cases
  • A statutory body such as the National Land Commission is not a court of law and its determinations are subject to challenge in a court of law; a determination made during the pendency of a suit does not dispose of the claim before the court

Court orders

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  1. 1.The 1st defendant's notice of motion dated 25/8/2017 seeking to strike out the plaintiff's suit is declined
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • National Land Commission ActSections 4 and 14(5)

Cases cited (3)

  • Kivanga Estates Ltd v National Bank of Kenya Ltd
    [2017] eKLR
  • Fina Bank Ltd v Spares and Industries Ltd
    (2000) 1 EA 52
  • D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina and another
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the plaint dated 18/7/2014 (the judgment does not cite a specific constitutional provision)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kukam Limited v Kenya National Highways Authority & 2 others [2019] KEELC 1774 (KLR)", Case Analysis (2019). Not stated in the extract (original suit filed 18/7/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1774/eng@2019-09-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.