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ELCDismissed· [2021] KEELC 4247 (KLR)

Priscilla Ndunge Kiilu v Machakos County Government & 2 others [2021] KEELC 4247 (KLR)

Environment and Land Court
19 February 2021
OAO.A. ANGOTE
1,762 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that skipping the required notice before suing a roads authority doesn't automatically kill your case, especially when demolition is threatened.

What this practically means

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Executive summary

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This ruling determines a Notice of Preliminary Objection dated 18th October 2018 by the 2nd Defendant, contending that the Plaintiff's suit, which seeks to restrain demolition of buildings on plot number 68, Mitaboni Market allegedly earmarked as road reserve for the Kenol-Mitaboni-Kathiani road project, was incurably defective for non-compliance with Section 67(a) of the Kenya Roads Act, which requires one month's written notice of claim to be served on the Director-General before legal proceedings are commenced against the Authority. The 2nd Defendant relied on authorities holding that non-compliance with Section 67 ousts the court's jurisdiction. The Plaintiff, through counsel, submitted that her claim for compensation was properly before the court, that she received no communication before her property was beaconed and earmarked for demolition, and that the suit was filed on 13th September 2017 alongside an urgent application for injunctive relief. The court, Angote J, considered Section 67(a) in light of Article 48 of the Constitution and followed Majanja J.'s holding in Kenya Bus Services Ltd & Another v. Minister for Transport & 2 Others that mandatory notice provisions strictly enforced violate the right of access to justice. The court held that while the notice requirement is important and necessary, failure to comply cannot be a ground to strike out a suit, particularly where demolition is threatened and the suit is accompanied by a certificate of urgency. Each case must be considered on its facts. The Preliminary Objection was found unmeritorious and dismissed with costs.

Key legal issues

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01

Effect of non-compliance with Section 67(a) of the Kenya Roads Act

Holding

Non-compliance with the one-month notice requirement does not warrant striking out a suit filed with an urgent application to restrain demolition; each case must be considered on its facts.

Reasoning

The court accepted that the notice provision is important and necessary, but held that strictly enforcing it as a bar to suit would render it an unconstitutional impediment to access to justice. Plaintiffs facing demolition typically file suits with urgent applications; requiring them to wait out the notice period would leave them without protection. Following Majanja J. in Kenya Bus Services, the court held the statute cannot impose hurdles defeating Article 48.

p. 3
02

Whether the court lacks jurisdiction over the suit for want of notice

Holding

The court retains jurisdiction; Section 67(a) must be observed by litigants at all times but does not, on these facts, oust the court's jurisdiction.

Reasoning

The court distinguished authorities where non-compliance led to a finding of no jurisdiction, holding that the provision must be considered in light of the right of access to justice, especially where a party is threatened with demolition of a building allegedly on a road reserve. The suit was filed alongside an application for injunctive relief, making immediate access to court necessary and the notice requirement inapplicable on the facts.

p. 3

Legal principles established

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  • Failure to serve the statutory notice under Section 67(a) of the Kenya Roads Act cannot, by itself, be a ground to strike out a suit, particularly where the suit is filed with an urgent application for injunctive relief.
  • Statutory notice requirements must be read in light of the constitutional right of access to justice under Article 48 and cannot be used to defeat that right.

Court orders

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  1. 1.The 2nd Defendant's Notice of Preliminary Objection dated 18th October, 2018 is dismissed
  2. 2.The 2nd Defendant to pay costs of the Preliminary Objection

Authorities

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Legislation

  • Kenya Roads ActSection 67(a)
  • Kenya Roads ActSection 29(1)
  • Kenya Roads ActSection 23
  • Kenya Roads ActSection 7
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Civil Procedure RulesOrder 3 rule 2

Cases cited (3)

  • John Kibor Kipkorir vs. Kenya Rural Roads Authority
    (2018) eKLR
  • Simonash Investment Limited vs. Kenya National Highway Authority & Others
    (2019) eKLR
  • Kenya Bus Services Ltd & Another vs. Minister for Transport & 2 Others
    (2012) eKLR
Jurisdiction invoked
Not expressly stated; suit on original jurisdiction challenging the 2nd Defendant's earmarking of private land as road reserve

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Priscilla Ndunge Kiilu v Machakos County Government & 2 others [2021] KEELC 4247 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4247/eng@2021-02-19

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