Charles Njenga Gatimu v Kenya National Authority [2020] KEELC 1114 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Preliminary Objection satisfies the test for a preliminary objection
It does; the question whether section 67(a) notice was given is a pure point of law requiring no ascertainment of facts
Applying Mukisa Biscuits and related authorities, the court reasoned that whether the Plaintiff complied with section 67(a) involves only determining what the law requires and whether notice was served, without probing evidence. Hence the objection stems from a point of law going to jurisdiction and meets the test for a preliminary objection.
Whether the Plaintiff complied with section 67(a) of the Kenya Roads Act
No compliant notice was served; the letter dated 2nd March 2020 could not have been sent on that date as it described events of May 2020, and the architects' and surveyors' letters did not amount to the statutory notice
The court found no evidence the letter dated 2nd March 2020 was sent or received, noting it contained a summary of events allegedly taking place in May 2020, an impossibility. The letters from architects and surveyors did not set out the claim nor amount to notice under section 67(a). The requirement being mandatory, failure to comply meant the suit was incompetent.
Whether the Notice of Motion for temporary injunction could be considered
No; having found it lacked jurisdiction, the court could not entertain the application
Having upheld the preliminary objection and found it had no jurisdiction, the court held there was no basis for dealing with the injunction application. It nevertheless vacated the interim orders in place and, although costs usually follow the event, directed each party to bear its own costs given the Defendant is a public institution.
Legal principles established
#- The requirement in section 67(a) of the Kenya Roads Act to give at least one month's written notice to the Authority before commencing proceedings against it is mandatory, and non-compliance robs the court of jurisdiction
- An objection to compliance with a statutory notice requirement raises a pure point of law and is properly a preliminary objection
Court orders
#- 1.The Notice of Preliminary Objection dated 9th June 2020 by the Defendant/Objector is found merited and is upheld
- 2.Each party to bear its own costs
- 3.The interim orders in place are vacated
- Jurisdiction invoked
- Statutory jurisdiction of the Environment and Land Court; objection founded on section 67(a) of the Kenya Roads Act, No. 2 of 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Njenga Gatimu v Kenya National Authority [2020] KEELC 1114 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1114/eng@2020-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.