[2020] KEHC 1796 (KLR)

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 1st 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 14th 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 14th 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 6thDay 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