Charles Wahome Kiboi v Kenya National Highways Authority & another [2020] KEELC 3916 (KLR)
The bottom line
#The court dismissed KeNHA's objection because the landowner had properly served the required notice before suing over his Dagoretti-Kinoo land.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to comply with Section 67(a) of the Kenya Roads Act amounts to a valid preliminary objection
Yes - non-compliance with the mandatory notice provision is a point of law capable of striking out the suit, hence a proper preliminary objection; however, the Plaintiff in this case complied.
The court applied the Mukisa Biscuits definition and held that the objection on non-compliance with the mandatory notice requirement under Section 67(a) is a pure point of law which, if established, could bring the suit to an end preliminarily. The second point, on whether the Plaintiff met the ingredients for injunctive relief, was rejected as a preliminary objection because it goes to the merits of the Notice of Motion and requires exercise of judicial discretion.
Whether the two Demand Letters constituted sufficient Notice under Section 67(a) of the Kenya Roads Act
Yes - the Demand Letters, received by the 1st Defendant more than 30 days before filing suit, gave sufficient Notice of the grievances and intention to seek legal redress.
The court examined the Demand Letters annexed to the pleadings, noting they were received in the 1st Defendant's office as shown by receipt stamps, gave the nature of the claim, and indicated intention to commence legal proceedings. Distinguishing Sumac Development (suit amended mid-stream without notice) and Michael Otieno Nyaguti (notice by unproven email), the court found the annexed letters satisfied the statutory requirement.
Whether the objection on the ingredients of injunctive orders qualifies as a preliminary objection
No - it goes to the merits of the Notice of Motion and does not meet the criteria of a preliminary objection.
Following Mukisa Biscuits and Sir Charles Newbold's formulation, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct and cannot involve the exercise of judicial discretion. Whether injunction conditions are met requires assessing the merits of the application, so it cannot be raised as a preliminary objection.
Legal principles established
#- A preliminary objection consists of a pure point of law capable of disposing of the suit without ascertaining facts
- Section 67(a) of the Kenya Roads Act is mandatory: legal proceedings against the Authority shall not be commenced until at least one month after written Notice containing particulars of the claim is served on the Director General
Court orders
#- 1.The 1st Defendant's Notice of Preliminary Objection dated 23rd April 2019 is dismissed entirely
- 2.Costs of the Preliminary Objection awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property LR. No. Dagoretti/Kinoo/3954
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Charles Wahome Kiboi v Kenya National Highways Authority & another [2020] KEELC 3916 (KLR)", Case Analysis (2020). Not stated in the judgment (suit filed 1st April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3916/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.