Salome Mumbi Gachii & another v Kenya National Highways Authority (KENHA) [2020] KEELC 1746 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Preliminary Objection was a proper preliminary objection
Yes - it raises a pure point of law (jurisdiction) requiring no ascertainment of facts
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.
Whether the written notice under Section 67(a) of the Kenya Roads Act is mandatory
Yes, for an ordinary suit the one month's written notice is mandatory, as the word 'shall' is used
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.
Whether the court had jurisdiction where the notice was admittedly not served
No - the Plaintiffs lacked audience and the court lacked jurisdiction; filing an ordinary suit instead of a petition did not cure the defect
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 9th June 2020 by the Defendants/Objectors is found merited and is upheld
- 2.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.