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ELCDismissedNotice of motion application dated 8th April 2021 (Environment and Land Court, Mombasa)· [2021] KEELC 726 (KLR)

Godfrey Simiyu Mujuma & 3 others v Kenya National Highways Authority & 2 others [2021] KEELC 726 (KLR)

Environment and Land Court
16 November 2021
5,827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Highways Authority won on a technicality: families suing over road compensation lost costs for skipping the mandatory 30-day notice to KeNHA before filing.

What this practically means

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Executive summary

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The 1st to 4th Plaintiffs, legal administrators of the estate of the late Mariamu Mohamed Mwanjira, owned businesses and residential houses in the Bahati area of Mombasa affected by the dualling of the Mombasa–Mariakani road. Their land, LR MN/VI/2398, was gazetted for compulsory acquisition. They filed a Plaint and a notice of motion dated 8th April 2021 seeking to stop eviction pending payment of compensation, having received eviction letters dated 31st March 2021. Only the 1st Defendant, Kenya National Highways Authority, responded, filing a preliminary objection that the suit was fatally defective for non-compliance with Section 67(a) of the Kenya Roads Act, 2007, requiring one month's written notice to the Director General before suit. When the matter came up on 24th June 2021, the parties confirmed the Plaintiffs had been fully compensated and only costs remained in issue. The court framed three issues: the threshold of the preliminary objection, entitlement to costs, and who bears the costs of the objection. Relying on Mukisa Biscuits, the court held the objection raised pure points of law and allowed it, finding the statutory notice requirement couched in mandatory terms and unmet. The Plaintiffs' contention that the provision was unconstitutional on the strength of the Haron Muma Nyameche decision failed, as the authority could not be traced. The court, exercising discretion under Section 27(1) of the Civil Procedure Act and considering the conduct of the parties, disallowed costs, though it criticised KeNHA's opacity in compensating project-affected persons. The suit and application were marked settled and withdrawn with no orders to costs, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the preliminary objection met the threshold of a proper preliminary objection

Holding

The court found that the objection raised serious issues on pure law (non-compliance with the statutory notice requirement) and met the fundamental threshold of a preliminary objection.

Reasoning

Relying on Mukisa Biscuits and Attorney General v Andrew Mwaura Githinji, the court held that a preliminary objection must raise a pure point of law on assumed facts. The objection based on Section 67(a) of the Kenya Roads Act concerned non-compliance with a mandatory statutory notice, which was a pure point of law requiring no ascertainment of facts, and could properly be raised before the final conclusion of the case.

p. 4
02

Whether the Plaintiffs were entitled to costs after withdrawing the suit

Holding

The prayer for costs was disallowed; the suit was marked settled and withdrawn with no orders to costs.

Reasoning

Although the Plaintiffs' motivation for suing (delayed and unequal compensation) was understandable and the 1st Defendant's opacity was criticised, the Plaintiffs never issued the mandatory notice under Section 67(a) of the Kenya Roads Act. Having withdrawn the suit under Order 25(1) after full compensation, and given doubts whether the suit as pleaded would have survived, the court exercised discretion under Section 27(1) of the Civil Procedure Act to deny costs.

p. 6
03

Whether Section 67(a) of the Kenya Roads Act is unconstitutional for infringing access to justice under Article 48

Holding

The court declined to hold the provision unconstitutional, noting it could not trace the un-cited authority said to have struck down the analogous Section 13A of the Government Proceedings Act.

Reasoning

The Plaintiffs, acting in person, contended that Section 67(a) was ejusdem generis with Section 13A of the Government Proceedings Act, allegedly declared null and void in Haron Muma Nyameche v County Government of Kisii. The court could not trace that decision as no proper citation was furnished, gave the Plaintiffs the benefit of doubt, but was not satisfied that such was the current legal position and left the matter there.

p. 6

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained.
  • Costs of and incidental to all suits are discretionary, and follow the event unless the court for good reason otherwise orders.
  • In determining costs the court may consider the conduct of the parties, the subject of litigation, the circumstances leading to institution of proceedings, the events leading to their termination, and the need to promote reconciliation.
  • Compliance with the one-month written notice requirement under Section 67(a) of the Kenya Roads Act before commencing proceedings against the Authority is mandatory.

Court orders

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  1. 1.That pursuant to Order 2 Rule 6 and 25(1) of the Civil Procedure Rules, the notice of motion application and the suit vide a Plaint all dated 8th April, 2021 be and is hereby marked as settled and withdrawn with no orders to costs.
  2. 2.That the Preliminary Objection by the 1st Defendant/Respondent dated 10th May, 2021 is allowed as prayed.
  3. 3.That each party to bear their own costs.
Jurisdiction invoked
Articles 10(2)(d), 20, 23, 40(3) and 159 of the Constitution of Kenya; Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act; Order 40 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Godfrey Simiyu Mujuma & 3 others v Kenya National Highways Authority & 2 others [2021] KEELC 726 (KLR)", Case Analysis (2021). Notice of motion application dated 8th April 2021 (Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/726/eng@2021-11-16

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