Fredrick Chege Kinuthia v Kenya National Highways Authority [2021] eKLR

Key Facts

Issues

• The court determined whether the Defendant's Preliminary Objection regarding the Plaintiff's failure to serve a 30-day written notice before filing an ordinary civil suit was valid. The issue centered on whether Section 67(a) of the Kenya Roads Act mandated this notice and whether the court lacked jurisdiction as a result. The court found the notice requirement mandatory and upheld the objection, striking out the suit for non-compliance.
• The court assessed whether the Plaintiff's Application dated 22nd October 2020 for interim injunctions to restrain the Defendant from demolishing his structure on parcel Kiambaa/Ruaka/2700 was merited. However, after finding the court lacked jurisdiction due to non-compliance with Section 67(a), the court concluded there was no basis to address the injunctions and vacated the interim orders.

Holdings

• The Plaintiff's Application dated 22nd October 2020 is not merited. The court has no jurisdiction to consider the application as the suit has been struck out due to non-compliance with the mandatory notice requirements under Section 67(a) of the Kenya Roads Act. The court emphasized that jurisdiction is essential for proceeding with legal claims.
• The Defendant's Preliminary Objection is merited and upheld. The court lacks jurisdiction over the matter as the Plaintiff failed to provide the mandatory one-month notice under Section 67(a) of the Kenya Roads Act, leading to the strike-out of the suit. The court found that the suit is an ordinary civil claim and not a constitutional petition, necessitating compliance with the notice requirement. The suit is struck out, and all interim orders are vacated.
• Each party is directed to bear their own costs. The court has determined that the costs of the suit should be borne by each respective party, given the Defendant's status as a public institution and the circumstances of the case. No party is awarded costs against the other.

Remedies

• All interim orders previously issued in the case were vacated following the court's determination that it had no jurisdiction to proceed with the matter.
• The court ruled that each party should bear its own costs as the case was dismissed due to jurisdictional non-compliance. No costs awarded to either party.
• The court struck out the Plaintiff's suit and vacated the interim orders due to lack of jurisdiction. Each party was directed to bear its own costs.

Legal Principles

Precedent Name

• Owners of the Motor Vessel 'Lillian' (S) Vs Caltex Oil (Kenya) Ltd
• Benson Ruiyi Njane Vs Kenya Rural Roads Authority & 36 Others
• Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
• Sumac Development Company Limited Vs George Munyui Kigathi & 2 Others
• Anthony Ngili Munguti & 12 Others Vs Kenya National Highways Authority & Another
• Michael Otieno Nyaguti & 2 Others Vs Kenya National Highways Authority

Cited Statute

• Civil Procedure Rules 2010
• Kenya Roads Act No. 2 of 2007
• Environment and Land Court Act
• Land Registration Act 2012
• Civil Procedure Act

Judge Name

Passage Text

• For the court to be able to effectively come to a conclusion that the cause of action in the suit is a boundary dispute, it will have to ascertain facts and probe evidence. This aspect of ascertaining facts on whether the Land Registrar has/or did boundary determination does not amount to a Preliminary Objection and the court finds that the same cannot be addressed at this stage as a Preliminary Objection.
• The Plaintiffs having failed to give the one month written Notice is in breach of the relevant provisions of law and lack audience before this Court. Consequently, the court finds that it does not have jurisdiction to deal with the matter and must then down its tools.