Simonash Investment Limited v Kenya National Highway Authority & 2 others [2019] KEELC 4733 (KLR)
The bottom line
#A company suing Kenya's highways authority lost its entire case because it skipped a mandatory one-month notice and ignored the required boundary dispute process.
What this practically means
#Executive summary
#Key legal issues
#Whether non-compliance with the pre-action notice under Section 67(a) of the Kenya Roads Act warrants striking out the suit
Yes - the provision is mandatory; the suit was struck out
The suit was an ordinary civil suit commenced by plaint, so the Civil Procedure Rules apply and the statutory notice was required. The notice of motion filed with the plaint could not suffice as notice, as it is founded on the plaint and thus post-dates commencement of the action. The notice requirement also serves Article 159(2)(c) by giving the Director General a chance to resolve the claim before litigation.
Whether the suit was, in substance, a boundary dispute reserved to the Land Registrar
Yes - the dispute was primarily one of boundary position and had not been dealt with by the Land Registrar, so the suit was prematurely filed and the court lacked jurisdiction to that extent
The pleadings showed the plaintiff alleging trespass and the 1st Defendant averring encroachment into the road reserve by about ten metres, confirming a boundary-position dispute. Nothing showed the issue had gone to the Land Registrar as required by Sections 18 and 19 of the Land Registration Act, so the court was without jurisdiction. Willis Ochola v Mary Ndege [2016] eKLR was applied.
Whether delay in raising the jurisdictional issue barred it
No - jurisdiction may be raised at any stage before final determination
An application questioning jurisdiction is like a preliminary objection on a point of law and may be raised at any stage; late raising does not defeat its legal standing, though earlier raising would have saved time and resources.
Legal principles established
#- Where a statute requires prior notice of intention to sue, failure to serve it before commencing the suit is fatal and justifies striking out the suit
- A notice of motion filed contemporaneously with a plaint cannot substitute for the statutory pre-action notice, since it comes after the action is commenced
- Boundary disputes must in the first instance be determined by the Land Registrar under Sections 18 and 19 of the Land Registration Act before the court is seized
- Questions of jurisdiction may be raised at any stage of the proceedings before final determination
Court orders
#- 1.Prayer 2 of the 1st Defendant's notice of motion dated 18th September 2018 is granted
- 2.The Plaintiff's suit is struck out
- 3.Costs of the suit are awarded to the 1st Defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - implied from the court's character; Sections 18 and 19 of the Land Registration Act and Section 67(a) of the Kenya Roads Act considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simonash Investment Limited v Kenya National Highway Authority & 2 others [2019] KEELC 4733 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4733/eng@2019-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.