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ELCStruck OutNot stated in the judgment· [2020] KEELC 1114 (KLR)

Charles Njenga Gatimu v Kenya National Authority [2020] KEELC 1114 (KLR)

Environment and Land Court
8 October 2020
3,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Charles Njenga Gatimu, moved the Environment and Land Court at Thika by Notice of Motion dated 26th May 2020 seeking a temporary injunction restraining the Kenya National Highways Authority from demolishing or interfering with his building on L.R Kiambaa/Ruaka/5260, alleging that despite the Authority's 2013 written assurance of no encroachment on the C62 road reserve, and approvals of change of user and building plans, the Authority earmarked the building for demolition in May 2020. The Defendant opposed through a Replying Affidavit by Eliud Munene, contending the building encroached on a road reserve compulsorily acquired in 1969, that no approval had been sought from the Authority, and filed a Notice of Preliminary Objection dated 9th June 2020 arguing the suit was incompetent for want of the one month written notice required by section 67(a) of the Kenya Roads Act. The court, applying Mukisa Biscuits and related authorities, held the objection raised a pure point of law and was properly a preliminary objection. It found no compliant notice was served: the letter dated 2nd March 2020 described events of May 2020 and could not have been sent when purported, and the architects' and surveyors' letters did not constitute the statutory notice. Holding the notice requirement mandatory, the court upheld the preliminary objection, found it had no jurisdiction, declined to consider the injunction application, vacated the interim orders, and directed each party to bear its own costs given the Defendant is a public institution.

Key legal issues

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01

Whether the Notice of Preliminary Objection satisfies the test for a preliminary objection

Holding

It does; the question whether section 67(a) notice was given is a pure point of law requiring no ascertainment of facts

Reasoning

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.

p. 2
02

Whether the Plaintiff complied with section 67(a) of the Kenya Roads Act

Holding

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

Reasoning

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.

p. 3
03

Whether the Notice of Motion for temporary injunction could be considered

Holding

No; having found it lacked jurisdiction, the court could not entertain the application

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 9th June 2020 by the Defendant/Objector is found merited and is upheld
  2. 2.Each party to bear its own costs
  3. 3.The interim orders in place are vacated

Authorities

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Legislation

  • Kenya Roads Actsection 67(a)
  • Road Act 2007not specified (referred to generally; also cited as section 49(4) of the Road Act)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • 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
  • Sumac Development Company Limited Vs George Munyui Kigathi & 2 Others
    [2017] eKLR
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

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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, "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.