Case ID:166335

Eldoret Grains Limited v Kenya National Highways Authority [2020] eKLR

Case Metadata

Case Number:

Petition 5 of 2020

Parties:

Eldoret Grains Limited v Kenya National Highways Authority

Date Delivered:

06 Oct 2020

Case Class:

Civil

Court:

High Court at Kitale

Case Action:

Ruling

Judge(s):

Stephen Murugu Githinji

Citation:

Eldoret Grains Limited v Kenya National Highways Authority [2020] eKLR

Advocates:

Mr. Hassan for the Petitioner

Mr. Mudavadi for the respondent

Court Division:

Civil

County:

Trans Nzoia

Advocates:

Mr. Hassan for the Petitioner

Mr. Mudavadi for the respondent

History Advocates:

Both Parties Represented

Case Outcome:

Petition dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

PETITION NO. 5 OF 2020

IN THE MATTER OF CONSTITUTION OF KENYA

AND

IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PRINCIPLES OF NATURAL JUSTICE, OPPENNESS AND FAIR HEARING

AND

IN THE MATTER OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 22,23,40,47,48,50,159,165,258,259 OF THE CONSTITUTION, REPUBLIC OF KENYA

AND

IN THE MATTER OF CONTRAVENTION AND THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOM UNDER ARTICLES 40,47,48,50(2) OF TH CONSTITUTION OF KENYA AND

IN THE MATTE OF UNLAWFUL DETENTION OF MOTOR VEHICLE REGISTRATION NUMBER KCG 111M/ZC 4347

BETWEEN

ELDORET GRAINS LIMITED...............................................PETITIONER

AND

KENYA NATIONAL HIGHWAYS AUTHORITY..............RESPONDENT

RULING

What is pending before the court is a Notice of preliminary objection dated 1

st

September 2020 filed by the respondent in response to the petition. The preliminary objection is based on the grounds that the applicant’s application is fatally defective as the application does not comply with the mandatory provisions of

Section 67(a)

of the

Kenya Roads Act, 2007

requiring 30 days’ notice to the Director General prior to filing a suit.

APPLICANT’S CASE

The applicant filed submissions on 14

th

September 2020.

It is the applicant’s position that the petitioner failed to comply with

Section 67

of the

Kenya Roads Act

which is couched in mandatory terms. The applicant cited the case of

Sumac Development Company Limited v George Munyui Kigathi & 2 others (2017) EKLR

. Further, the applicant submitted that the applicant has failed to demonstrate that it served the respondent with the 30 days’ notice before institution of the suit. The essence of the notice is to create an opportunity to the Director General’s office of exploring an out of court settlement and is in line with

Article 159

of the

Constitution

.

The applicant cited the case of

Michael Otieno Nyaguti & 5 others v Kenya National Highways Authority & 5 others (2015) EKLR

wherein the court held compliance with section 67 of the Roads Act is not optional.

RESPONDENT’S CASE

The respondent filed submissions on 14

th

September 2020.

The respondent cited

Article 23(1)

of the

Constitution

and claimed that the court has the jurisdiction to determine questions involving the infringement of fundamental rights and freedoms and seek redress for their violations.

The respondent submitted that for a claim for compliance with

Section 67

the respondents ought to have complied with the provisions of

regulation 14

of the

Kenya national Highways Authority regulations

. Further, that the respondent went against the rules of natural justice, a fair hearing and administrative action and that the respondent’s action of detaining the petitioners’ vehicle was in contravention of the petitioners’ right to property.

The respondent submitted that he who comes to equity must come with clean hands and the petitioner has not. Further, according to

Article 159

of the

Constitution,

judicial authority is derived from the people. The respondent’s actions failed to promote and protect the purpose and principles of this constitution as they violated the rights of the petitioner.

The respondent concluded by submitting that the courts, before dismissing a matter summarily have the burden of balancing claims before it particularly when issues raised touch on the constitution and the bill of rights vis-a-vis technicalities which largely do not bind the courts.

ISSUES FOR DETERMINATION

a) Whether the petition is fatally defective.

The essence of a preliminary objection was given by law JA Old Sir Charles Newbold P, in the case of

Mukisa Biscuits Manufacturing Co. Ltd Vs. West End Distributors (1969) E. A. 696 at page 700 law

JA Stated;

“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit, Examples are on objection to the jurisdiction of the court or plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”.

Sir Charles Newbold P. added as follows page 701: -

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any facts are to be ascertained or if what is sought is the exercise of judicial discretion”.

Section 67

of the

Kenya Roads Authority Act

provides;

Where any action or other legal proceeding lies against an Authority for any act done in pursuance or execution, or intended execution of an order made pursuant to this Act or of any public duty, or in respect of any alleged neglect or default in the execution of this Act or of any such duty, the following provisions shall have effect—

(a)

the action or legal proceeding shall not be commenced against the Authority until at least one month after written notice containing the particulars of the claim and of intention to commence the action or legal proceedings, has been served upon the Director-General by the plaintiff or his agent; and

(b) such action or legal proceedings shall be instituted within twelve months next after the act, neglect, default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof.

Section 67(a)

is couched in mandatory terms. There has been no finding that the same is unconstitutional. However, in the case of

BENSON RUIYI NJANE VS. KENYA RURAL ROADS AUTHORITY & 36 OTHERS [2016] eKLR

the Court had a chance of addressing issues raised in a notice of preliminary objection under

Section 67

of the

Kenya Roads Act

. The Court made the following imperative finding:

“The limitation set out in Section 67 of the Roads requiring notice of thirty days to the Authority before instituting suit only applies to

ordinary civil claims

. It does not apply to cases (

Petitions

/Applications) alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or threatened. The Respondents’ claim to the contrary is not borne out by the Constitution, and that leg of defence therefore fails.”

Given the foregoing position, it is clear that the filed petition is not subject to the provisions of Section 67(a) of the Kenya Roads Act, 2007. The preliminary objection therefore lacks merit and is dismissed. Costs be in the cause.

S.M GITHINJI

JUDGE

DATED, SIGNED

and

DELIVERED

at

ELDORET

this

6

th

Day of

October, 2020

In the presence of:-

Ms Nzula holding brief for Mr. Hassan for the Petitioner

Mr. Mudavadi for the respondent

Ms Gladys – Court Assistant