Rising Freight Limited & another v Kenya National Highways Authority & 3 others [2019] KEELC 1887 (KLR)
The bottom line
#The High Court allowed two companies to sue KeNHA over land encroachment, rejecting arguments that a 12-month time limit barred their case.
What this practically means
#Executive summary
#Key legal issues
#Whether the limitation period in Section 67(b) of the Kenya Roads Act bars the Plaintiffs' suit
The preliminary objection was dismissed; the authorities cited by the 1st Defendant were distinguished because a prior valid judgment had already confirmed the Plaintiffs' right to the suit property, and justice requires the suit be heard on its merits under Article 159
The court noted that in a prior petition, judgment was delivered in the Plaintiffs' favour on 19/6/2012 confirming their right to the Suit Property, and that order had not been appealed or set aside. The facts in the authority relied on by the 1st Defendant were distinguishable. Guided by Article 159's command that justice be administered without undue regard to procedural technicalities, the court held the Plaintiffs should be afforded an opportunity to be heard, with the 1st Defendant free to raise its defences at the hearing, including whether the land is public property.
Whether the Plaintiffs have a cause of action against the 1st Defendant following the NLC's 2017 revocation of title
This issue, together with whether the suit land constitutes public property, was left for determination at the hearing of the suit
The 1st Defendant argued that the NLC's July 2017 gazette notice revoking the title meant the cause of action lay against the NLC, not itself. The Plaintiffs countered that the cause of action arose in 2014 when the 1st Defendant allegedly encroached, and that NLC's revocation power is not absolute against the constitutional right to property under Article 40. The court did not determine this at the interlocutory stage, reserving it for the full hearing.
Legal principles established
#- A valid, unappealed order confirming a party's right to property remains binding and the court should render justice without undue regard to technicalities
Court orders
#- 1.The 1st Defendant's preliminary objection is dismissed
- 2.Costs of the objection shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; Article 159 of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rising Freight Limited & another v Kenya National Highways Authority & 3 others [2019] KEELC 1887 (KLR)", Case Analysis (2019). HCCC (Plaintiff's plaint dated 17/5/2017) — Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1887/eng@2019-08-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.