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ELCStruck Out· [2019] KEELC 4733 (KLR)

Simonash Investment Limited v Kenya National Highway Authority & 2 others [2019] KEELC 4733 (KLR)

Environment and Land Court
30 January 2019
1,874 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 1st Defendant, Kenya National Highway Authority, moved to strike out Simonash Investment Ltd's suit or alternatively transfer it to the Chief Magistrate's Court at Kisumu. It argued that the plaintiff never served the one-month pre-action notice required by Section 67(a) of the Kenya Roads Act 2007; that the claim was in substance a boundary dispute reserved to the Land Registrar under Sections 18 and 19 of the Land Registration Act; that a subsisting temporary injunction had cost it Kshs. 341,857,828 in penalties; and that the suit was an abuse of process. The plaintiff opposed, saying KeNHA had participated in the proceedings for about a year and a half, that the notice of motion filed with the plaint sufficed as notice, that KeNHA itself had admitted not serving its own statutory notices, and that the suit property was worth over Kshs. 50,000,000, beyond the lower court's pecuniary jurisdiction. The court, S.M. Kibunja J, framed four issues and held that the suit was an ordinary civil suit governed by the Civil Procedure Rules, not a constitutional petition, so the statutory notice was mandatory; the notice of motion could not substitute for it because it post-dated commencement of the action. The pleadings also confirmed a primary boundary dispute that had never gone to the Land Registrar, so the suit was prematurely filed and the court lacked jurisdiction to that extent. Jurisdictional questions may be raised at any stage. The valuation placed the matter beyond the Chief Magistrate's pecuniary jurisdiction, so transfer was refused. The suit was struck out with costs.

Key legal issues

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01

Whether non-compliance with the pre-action notice under Section 67(a) of the Kenya Roads Act warrants striking out the suit

Holding

Yes - the provision is mandatory; the suit was struck out

Reasoning

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.

02

Whether the suit was, in substance, a boundary dispute reserved to the Land Registrar

Holding

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

Reasoning

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.

p. 2
03

Whether delay in raising the jurisdictional issue barred it

Holding

No - jurisdiction may be raised at any stage before final determination

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Prayer 2 of the 1st Defendant's notice of motion dated 18th September 2018 is granted
  2. 2.The Plaintiff's suit is struck out
  3. 3.Costs of the suit are awarded to the 1st Defendant

Authorities

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Legislation

  • Kenya Roads ActSections 67(a), 49(4) and (5)
  • Land Registration ActSections 18(1) and (3), 19(1), (2) and (3)
  • Civil Procedure ActSection 1A, 1B, 3A and 18
  • Civil Procedure Rules, 2010Order 40 Rules 1, 4 and 10
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Not specified

Cases cited (5)

  • Willis Ochola V Mary Ndege
    [2016] eKLR
  • Michael Otieno Nyaguli & 5 Others V Kenya National Highways Authority & 5 Others
    [2015] eKLR
  • Rianna Furaha Children Home V Kenya National Highways Authority
    [2016] eKLR
  • Unilever Tea Kenya Limited V National Land Commission & 2 Others
    [2017] eKLR
  • Boro Dika V Gulsan Insaat Sanay, Turizm & Another
    [2018] eKLR
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

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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, "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.