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ELCDismissedNot stated in judgment· [2024] KEELC 874 (KLR)

Republic v Land Registrar, Narok & 2 others; Koonyo & 160 others (Interested Party); Kenga (Exparte Applicant) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 874 (KLR)

Environment and Land Court
26 February 2024
MCMbogo C.G.
1,750 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Narok court confirmed that missing the statutory notice when suing the Kenyan government no longer gets your land case thrown out.

What this practically means

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Executive summary

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The interested parties filed a notice of preliminary objection dated 29th November 2023 seeking dismissal of the ex-parte applicant's judicial-review suit on the ground that the applicant, having sued the Attorney General and government officers including the District Land Surveyor, Narok North and Narok South and the District Registrar, Narok, failed to issue the mandatory statutory notice of intention to sue under section 13A of the Government Proceedings Act, Cap 40. The objection was canvassed by written submissions; the respondents filed none. The court first restated the established definition of a preliminary objection from Mukisa Biscuits and related authorities, holding that such an objection must raise a pure point of law on the assumption that pleaded facts are correct, without the need to ascertain facts or exercise discretion. On the merits, the court noted that section 13A had been declared unconstitutional in Kenya Bus Services Ltd v Minister for Transport, a finding endorsed by the Court of Appeal in David Njenga Ngugi v A-G, which held the section merely directory and incapable of rendering a competent suit incompetent. Relying also on Bob Thompson Dickens Ngobi v Kenya Ports Authority, the court held that failure to comply with section 13A was insufficient to warrant striking out the applicant's substantive motion, adding that the respondents - the parties better placed to raise the point - had not entered appearance or filed pleadings. The notice of preliminary objection was dismissed with costs to the ex-parte applicant.

Key legal issues

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01

Whether failure to serve statutory notice under section 13A of the Government Proceedings Act renders the suit incompetent

Holding

No - the requirement was declared unconstitutional by the High Court (Kenya Bus Services) and the Court of Appeal (David Njenga Ngugi), and non-compliance is not a ground for striking out; in any event only the respondents could plead it and they did not.

Reasoning

The court relied on Kitelo v County Government of Bungoma, which cited the High Court's declaration of unconstitutionality in Kenya Bus Services and the Court of Appeal's holding in David Njenga Ngugi that section 13A is merely directory and non-compliance cannot render a suit incompetent. The court also noted the respondents, who never entered appearance or filed pleadings, were better placed to raise the point but did not do so.

p. 4

Legal principles established

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  • Failure to comply with section 13A of the Government Proceedings Act, having been declared unconstitutional, does not warrant striking out a suit against the Government.
  • A preliminary objection must raise a pure point of law on assumed pleaded facts, without any need to ascertain facts or exercise discretion.

Court orders

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  1. 1.The notice of preliminary objection dated 29th November, 2023 is dismissed with costs to the ex-parte applicant
Jurisdiction invoked
Original judicial-review jurisdiction of the Environment and Land Court (not expressly cited in the extract)

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, "Republic v Land Registrar, Narok & 2 others; Koonyo & 160 others (Interested Party); Kenga (Exparte Applicant) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 874 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/874/eng@2024-02-26

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