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ELCStruck OutNot stated in the judgment· [2020] KEELC 1746 (KLR)

Salome Mumbi Gachii & another v Kenya National Highways Authority (KENHA) [2020] KEELC 1746 (KLR)

Environment and Land Court
9 July 2020
2,740 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 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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This ruling of the Environment and Land Court at Thika (L. Gacheru J) determined a Notice of Preliminary Objection dated 9th June 2020 by the Kenya National Highways Authority, seeking to strike out the Plaint and Notice of Motion both dated 27th May 2020 on the ground that the Plaintiffs had not served the one month's written notice required by Section 67(a) of the Kenya Roads Act No. 2 of 2007 on the Director-General before commencing suit. The objection was canvassed by written submissions. The Defendant relied on Owners of Motor Vessel Lillian S v Caltex Oil and Micheal Otieno Nyaguti v KNHA, arguing the notice requirement was mandatory and went to jurisdiction. The Plaintiffs argued that striking out the suit would deny them access to justice under Articles 48 and 50(1) of the Constitution, that the overriding objective disfavoured technicalities, and that Section 67(a) was inconsistent with Article 40(6); they admitted no notice was served, citing urgency as the Authority had paraded vehicles on site. The court applied Mukisa Biscuits, Oraro v Mbaja and related authorities to find the objection raised a pure point of law. Distinguishing decisions holding the notice non-mandatory - which involved constitutional petitions rather than ordinary suits - the court held the written notice was mandatory, that the Plaintiffs lacked audience for non-compliance, and that the court lacked jurisdiction. The preliminary objection was upheld, the Plaint and application were effectively struck out, and, as the Defendant was a public institution, each party was ordered to bear its own costs. The ruling was delivered virtually under the COVID-19 court operations directives.

Key legal issues

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01

Whether the Notice of Preliminary Objection was a proper preliminary objection

Holding

Yes - it raises a pure point of law (jurisdiction) requiring no ascertainment of facts

Reasoning

Applying Mukisa Biscuits and related authorities, the court held that compliance with Section 67(a) of the Kenya Roads Act goes to jurisdiction, requires only a determination of what the law says and whether notice was served, and thus involves no probing of evidence or disputed facts. The objection therefore met the test of a preliminary objection.

p. 3
02

Whether the written notice under Section 67(a) of the Kenya Roads Act is mandatory

Holding

Yes, for an ordinary suit the one month's written notice is mandatory, as the word 'shall' is used

Reasoning

The court relied on Sumac Development Company Ltd v George Munyui Kigathi holding the word 'shall' renders the notice mandatory. It acknowledged contrary decisions holding the notice non-mandatory but distinguished them as concerning petitions alleging violation of fundamental rights; the present matter was an ordinary suit, so the notice requirement applied.

p. 3
03

Whether the court had jurisdiction where the notice was admittedly not served

Holding

No - the Plaintiffs lacked audience and the court lacked jurisdiction; filing an ordinary suit instead of a petition did not cure the defect

Reasoning

The Plaintiffs acknowledged no notice was served, relying on urgency because the Defendant had paraded vehicles on site. The court held that pleading rights violations in an ordinary suit without moving by way of petition could not cure non-compliance with the mandatory notice, so the suit was struck out and the preliminary objection upheld.

p. 3

Legal principles established

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  • Section 67(a) of the Kenya Roads Act requires one month's written notice before commencing an ordinary civil suit against the Authority, and the requirement is mandatory
  • A party who fails to comply with the mandatory statutory notice lacks audience and the court must down its tools
  • The mandatory notice requirement under Section 67(a) applies to ordinary suits but not to constitutional petitions alleging violation of fundamental rights

Court orders

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  1. 1.The Notice of Preliminary Objection dated 9th June 2020 by the Defendants/Objectors is found merited and is upheld
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Kenya Roads ActSection 67(a)
  • Kenya Roads ActSection 26
  • Kenya Roads ActSection 29
  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 40(6)
  • Civil Procedure ActOverriding objectives
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (9)

  • Owners of Motor Vessel Lillian S Vs Caltex Oil Kenya Limited
    (1989) KLR 1
  • Micheal Otieno Nyaguti & 5 others Vs Kenya National Highways Authority & 5 Others
    (2018) eKLR
  • 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
  • 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
Jurisdiction invoked
Original civil jurisdiction under the Environment and Land Court Act; determination of a Notice of Preliminary Objection under 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, "Salome Mumbi Gachii & another v Kenya National Highways Authority (KENHA) [2020] KEELC 1746 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1746/eng@2020-07-09

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