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ELCDismissed· [2022] KEELC 627 (KLR)

Peter Kitheka & 2 others v Kenya National Highways Authority & 4 others [2022] KEELC 627 (KLR)

Environment and Land Court
22 March 2022
LKL. G. Kimani
2,069 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Landowners suing Kenya's highways authority won because their 30-day written notice of intent to sue was properly served.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitui determines a Notice of Preliminary Objection dated 17th February 2021 raised by the 1st Defendant against the Plaintiffs' suit and Notice of Motion application. The Plaintiffs sued over the proposed compulsory acquisition of their lands (Kyangwithya/Tungutu/2191, 2268 and Kyangwithya/Kaveta/1403) for the Kibwezi-Mutomo-Kitui-Kabati-Migwani (A9/B64) Road, complaining that the valuation was below actual value, and sought an injunction, a declaration that the decision was null and void, and damages in the alternative. The 1st Defendant objected that the suit was fatally defective for non-compliance with Section 67 of the Kenya Roads Act, 2007, which requires thirty days' written notice to the Director-General before suing the Authority. The Plaintiffs responded that the objection rested on contested facts and that they had in fact served a notice dated 4th September 2020 by letter and email. The court framed two issues: whether the objection was a point of law or fact, and whether it should be upheld. Applying Mukisa Biscuit and Kalpana Rawal, it found the notice issue to be a fundamental point of law. On the merits, it held that the attached notice and email satisfied Section 67, that the 1st Defendant had not denied receipt, and that the suit filed on 11th February 2021 came more than thirty days later. The preliminary objection was dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the preliminary objection was a pure point of law despite factual contest over service of the statutory notice

Holding

The objection raised a fundamental legal issue (statutory notice) and could proceed despite apparent factual conflicts, following Kalpana Rawal

Reasoning

The court applied the Mukisa Biscuit definition and noted the objection targeted a statutory provision capable of dismissing the entire suit. Although service of notice was factually contested, the Supreme Court in Kalpana Rawal held that a checklist approach is not consonant with the Constitution and that a fundamental issue may be settled first even where there are apparent factual conflicts. Notice was held to be a legal provision, so the objection was founded on a point of law.

p. 3
02

Whether the Plaintiffs complied with Section 67 of the Kenya Roads Act by serving 30 days' notice

Holding

The Plaintiffs satisfied the statutory notice requirement; the notice of 4th September 2020 was served and suit was filed more than 30 days later

Reasoning

The Plaintiffs attached to their replying affidavit a notice dated 4th September 2020 issued by E. K. Mutua & Co. Advocates addressed to all Defendants, containing particulars of the claim and intention to commence proceedings, plus an email forwarding it. The 1st Defendant did not deny receipt. Suit was filed on 11th February 2021, more than 30 days after the notice, so compliance was achieved and the objection failed.

Legal principles established

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  • A party wishing to sue the Authority under Section 67 of the Kenya Roads Act must serve written notice containing particulars of the claim and intention to sue on the Director-General at least one month before filing suit
  • A preliminary objection must be a pure point of law that may dispose of the suit and is argued on the assumption that all facts pleaded by the other side are correct

Court orders

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  1. 1.The Preliminary Objection dated 17th February 2021 is dismissed with costs to the Plaintiffs

Authorities

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Legislation

  • Kenya Roads ActSection 67 (and 67(a))
  • Constitution of KenyaArticle 159(2)(d) and Article 159

Cases cited (11)

  • Sumac Development Company Limited v. George Munyui Kigathi & 2 others
    (2017) eKLR
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others
    (2013) eKLR
  • Charles Kamuren v Grace Jellagat Kipchoi & 2 others
    (2013) eKLR
  • Boru Dika v Gulsan Insaat, Turizm & Another
    (2018)
  • Simonash Investment Limited v Kenya National Highway Authority & 2 others
    (2019) eKLR
  • Alphonce Mbinda Musyoki & Another v Kenya National Highways Authority
    (2018)
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors ltd
    (1969) EA 696
  • Nitin Properties Ltd v. Sing Kalsi & Another
    (1995) eKLR
  • Priscilla Ndunge Kiilu v. Machakos County Government & 2 others
    (2021) eKLR
  • Pius Mutuku Mueke v Managing Director Kenya Broadcasting Corporation & Another
  • Kalpana Rawal & 2 Others v Judicial Service Commission & 6 Others
    [2016] eKLR
Jurisdiction invoked
Not stated in judgment; Environment and Land Court, first-instance suit over compulsory acquisition of land

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, "Peter Kitheka & 2 others v Kenya National Highways Authority & 4 others [2022] KEELC 627 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/627/eng@2022-03-22

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