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ELCStruck Out· [2020] KEELC 520 (KLR)

William Ngatia Kariuki & 20 others v Kenya National Highway Authority [2020] KEELC 520 (KLR)

Environment and Land Court
30 November 2020
MOM.C. Oundo
2,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court struck out landowners' suit against KeNHA because they never served the mandatory 30 days' written notice before suing.

What this practically means

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Executive summary

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The Plaintiffs, owners of commercial plots in Narumoru Township, moved the Environment and Land Court at Nakuru seeking interim orders restraining KeNHA from interfering with or demolishing their plots, following vacate/notices of intended demolition issued in December 2019 for structures allegedly encroaching on the road reserve. KeNHA responded with a replying affidavit and a preliminary objection dated 9 January 2020 on two grounds: first, that the suit was fatally defective for non-compliance with Section 67(a) of the Kenya Roads Act, 2007, which requires at least thirty days' written notice to the Director General before commencing proceedings against the Authority; and second, that the dispute was a boundary dispute reserved to the Land Registrar at first instance under Section 18(2) of the Land Registration Act, 2012. The Plaintiffs countered that KeNHA's own demolition notice was still running, that they were legitimate private landowners with no boundary dispute, and that their claim was based on proprietorship interests. The court, applying Mukisa Biscuits and Section 67(a), held the thirty days' notice mandatory for ordinary suits, the exemption applying only to constitutional petitions, and found the Plaintiffs in breach and without audience. On the second issue, the court found no averment that the boundary issue had been determined by the Land Registrar and held the suit premature, the Land Registrar having first-instance jurisdiction under Sections 18 and 19 of the Land Registration Act. The court upheld the preliminary objection and struck out the Plaintiffs' suit with costs on 30 November 2020.

Key legal issues

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01

Failure to serve the mandatory 30 days' notice under Section 67(a) of the Kenya Roads Act, 2007

Holding

The notice was mandatory for this ordinary suit; failure to give it defeated the suit

Reasoning

The word 'shall' in Section 67(a) makes the one month written notice to the Director General mandatory before commencing proceedings against the Authority. The exemption recognised in case law applies only to constitutional petitions alleging breach of fundamental rights, not ordinary suits such as this. The Plaintiffs, having not served the notice, were in breach and lacked audience.

p. 4
02

Whether the claim was a boundary dispute reserved to the Land Registrar under Section 18(2) of the Land Registration Act

Holding

The Court was unable to determine the boundary question on the material filed and held the suit premature

Reasoning

The Court found no averment that the boundary issue had been dealt with by the Land Registrar before the suit was filed. Sections 18 and 19 of the Land Registration Act confer first-instance jurisdiction on the Land Registrar, so the Court was without jurisdiction to that extent and the suit was premature.

p. 4

Legal principles established

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  • A preliminary objection consists of a pure point of law capable of disposing of the suit without ascertaining facts
  • The one month written notice under Section 67(a) of the Kenya Roads Act, 2007 is mandatory for ordinary civil suits against KeNHA
  • The notice requirement does not apply to constitutional petitions alleging violation of fundamental rights
  • Boundary disputes under Sections 18 and 19 of the Land Registration Act must first be determined by the Land Registrar

Court orders

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  1. 1.Preliminary objection upheld with the result that the Plaintiffs'/Applicants' suit is struck out
  2. 2.Costs awarded to the Defendant/Respondent

Authorities

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Legislation

  • Kenya Roads ActSection 67(a)
  • Kenya Roads ActSection 4(2)(b)
  • Kenya Roads ActSection 49(1)(a)
  • Land Registration Act, 2012Section 18(2)
  • Land Registration Act, 2012Sections 18 and 19
  • Traffic ActSection 91(1)

Cases cited (12)

  • Sumac Development Company Ltd. vs George Munyui Kigathi & 2 Others
    [2017] eKLR
  • Simonash Investments Limited vs. Kenya National Highways Authority & 2 Others
    [2019] eKLR
  • Michael Otieno Nyaguli & 5 Others vs Kenya National Highways Authority & 5 Others
    [2015] eKLR
  • Rianna Furaha Children Home vs Kenya National Highways Authority
    [2016] eKLR
  • Unilever Tea Kenya Limited vs National Land Commission & 2 Others
    [2017] eKLR
  • Boro Dika vs Gulsan Insaat Sanay, Turizm & Another
    [2018] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd – v- West End Distributors Limited
    (1969) EA. 696
  • Quick Enterprises Ltd. vs. Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Benson Ruiyi Njane vs Kenya Rural Roads Authority & 36 Others
    [2016] eKLR
  • Anthony Ngili Munguti & 12 Others vs Kenya National Highways Authority & Another
    [2017] eKLR
  • Willis Ochola vs Mary Ndege
    [2016] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction (Land Registration Act No. 3 of 2012 and Kenya Roads Act, 2007 invoked in the preliminary objection)

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, "William Ngatia Kariuki & 20 others v Kenya National Highway Authority [2020] KEELC 520 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/520/eng@2020-11-30

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