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ELCPartially AllowedPetition No 5 of 2020· [2020] KEELC 1086 (KLR)

Peter Ndirangu Kimeria v Kenya National Highways Authority & 4 others [2020] KEELC 1086 (KLR)

Environment and Land Court
8 October 2020
3,953 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped KENHA from demolishing a Ruaka building, ruling that missing a 30-day statutory notice cannot block a constitutional rights case.

What this practically means

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Executive summary

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The Petitioner, Patrick Ndirangu Kimeria, the registered owner of L.R No. Kiambaa/Ruaka/1625, filed a constitutional Petition together with a Notice of Motion dated 22nd July 2020 seeking conservatory orders restraining the 1st and 2nd Respondents from demolishing his building, which the 1st Respondent (KENHA) alleged encroached on a road reserve along the Western By-pass pursuant to a demolition notice dated 23rd June 2020. The 1st Respondent filed a Notice of Preliminary Objection contending that the Court lacked jurisdiction because the Petitioner failed to serve the 30 days' notice required by Section 67(a) of the Kenya Roads Act, that the dispute was a boundary dispute reserved for the Land Registrar under Section 18(2) of the Land Registration Act, that the Court could only exercise appellate jurisdiction over compulsory acquisition matters under Section 13(4) of the Environment and Land Court Act, and that the Land Acquisition Tribunal under the Land Act had jurisdiction. The court framed two issues: whether the preliminary objection was merited, and whether the application was merited. Applying Mukisa Biscuits and Oraro v Mbaja, the court held that only the jurisdictional ground was properly a preliminary objection, as the other grounds required ascertaining facts. On jurisdiction, relying on Benson Ruiyi Njane and Anthony Ngili Munguti, it held that the 30-day notice requirement applies only to ordinary civil claims and cannot defeat a petition alleging violation of fundamental rights. The preliminary objection was dismissed with costs. On the application, applying Giella v Cassman Brown, the court found a prima facie case from the Petitioner's indefeasible title, irreparable harm not compensable by damages if demolition proceeded, and no need to consider the balance of convenience. The application was allowed entirely with costs to the Petitioner, and conservatory orders preserving the status quo pending the Petition were issued.

Key legal issues

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01

Whether the grounds raised in the 1st Respondent's Notice of Preliminary Objection, apart from jurisdiction, are properly raised as preliminary objections

Holding

Only the jurisdictional ground (non-compliance with Section 67(a) of the Roads Act) is a proper preliminary objection; the other grounds require ascertaining facts and probing evidence and are mere grounds of the Petition.

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, the court held that a preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct. Whether the suit is a boundary dispute or a challenge to compulsory acquisition requires probing evidence, and whether the Petitioner's rights were actually violated also requires ascertaining facts, so those grounds cannot be raised preliminarily.

p. 3
02

Whether failure to serve the 30 days' notice under Section 67(a) of the Kenya Roads Act defeats the Petition

Holding

No. The suit is a constitutional Petition alleging violation of rights, and such rights cannot be taken away for want of a notice of intention to sue.

Reasoning

Relying on Benson Ruiyi Njane v Kenya Rural Roads Authority and Anthony Ngili Munguti v KENHA, the court held that the Section 67 notice requirement applies only to ordinary civil claims, not petitions alleging denial, violation or infringement of Bill of Rights freedoms. Access to justice under the Constitution supersedes statutory limits on enforcing constitutional rights. The preliminary objection was therefore dismissed with costs.

p. 4
03

Whether the Petitioner established a prima facie case with a probability of success for conservatory orders

Holding

Yes. As registered proprietor with an indefeasible title, and facing a demolition notice, the Petitioner established a prima facie case.

Reasoning

Guided by Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found the Petitioner produced a title deed issued on 6th December 2005 and is deemed an absolute and indefeasible proprietor under Section 26(1) of the Land Registration Act. The demolition notice dated 23rd June 2020 showed a likelihood of infringement of his rights, which can only be curtailed in accordance with the law.

p. 5
04

Whether the Petitioner would suffer irreparable harm not compensable by damages

Holding

Yes. Demolition of the building before prosecuting the Petition would cause irreparable harm that damages cannot compensate.

Reasoning

The court found the Petitioner in possession and developed on the property, with over Kshs. 15,000,000 invested. Citing Niaz Mohammed Janmohammed v Commissioner for Lands, it held no amount of money can compensate infringement of such a right. The balance of convenience limb did not arise as the court was not in doubt.

p. 5

Legal principles established

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  • A preliminary objection must raise a pure point of law capable of disposing of the suit without ascertaining facts or exercising judicial discretion.
  • The 30-day notice requirement under Section 67 of the Roads Act applies only to ordinary civil claims and not to constitutional petitions alleging violation of fundamental rights.
  • A fundamental right guaranteed by the Constitution cannot be defeated by failure to issue a statutory notice of intention to sue.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 8th August 2020 is dismissed with costs to the Petitioner.
  2. 2.The Notice of Motion Application dated 22nd July 2020 is allowed entirely with costs to the Petitioner/Applicant, granting conservatory orders restraining the 1st and 2nd Respondents from trespassing on, wasting, damaging, demolishing the building on L.R No. Kiambaa/Ruaka/1625 or interfering with the Petitioner's quiet possession pending the hearing and determination of the Petition.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40; Article 162(2)(b); section 48
  • Kenya Roads ActSection 67(a); Section 49(1)(a); No. 2 of 2007
  • Traffic ActSection 9(1)
  • Land Registration ActSection 18(2); Section 26(1)(a) & (b); 2012
  • Environment and Land Court ActSection 13(2)(b), 13(2)(d), 13(4)
  • Land ActSections 133, 133A, 133B
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (12)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (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
  • Oraro Vs Mbaja
    (2005) 1 KLR 141
  • Lucy Msigo Waita Vs KENHA
    Mombasa ELC Constitutional Petition 1 of 2019
  • 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
  • Giella Vs Cassman Brown Co Ltd
    (1973) EA 358
  • E.A Industries Vs Trufoods
    (1972) EA 420
  • Mrao Ltd Vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Paul Gitonga Wanjau Vs Gathuthi Tea Factory Co. Ltd & 2 Others
    Nyeri HCC No.28 of 2015
  • Niaz Mohammed Janmohammed Vs Commissioner for Lands & 4 Others
    (1996) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Peter Ndirangu Kimeria v Kenya National Highways Authority & 4 others [2020] KEELC 1086 (KLR)", Case Analysis (2020). Petition No 5 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1086/eng@2020-10-08

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