https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8630

Ngetuny v Kenya National Highways Authority & another (Civil Appeal E160 of 2024) [2026] KEHC 8630 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8630 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E160 of 2024 A Mabeya, J June 19, 2026 Between Esther Ngetuny Appellant and Kenya National Highways Authority 1st Respondent Attorney General 2nd Respondent Judgment 1.The appellant filed the primary suit before the trial court vide a plaint dated 1/12/2022 seeking general, special, punitive and aggravated damages for malicious prosecution as well as costs and interest against the respondent. 2.The 1st respondent entered appearance and filed two statements of defence dated 13/1/2023 and 25/1/2023 filed by its private counsel and the attorney general, respectively wherein in both instances it denied the averments by the plaintiff and further denied receipt of any notice of intention to sue as mandated by section 67 (a) of the Kenya Roads Act. 3.The matter proceeded to trial whereby the trial court dismissed the suit on the grounds that it lacked jurisdiction to entertain the suit by virtue of the appellant’s failure to comply with the mandatory provisions of section 67 (a) of the Kenya Roads Act. 4.Aggrieved by the said judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 21/8/2024 raising four (4) grounds of appeal as follows: -a.That the learned magistrate erred in law and fact in sustaining a preliminary objection based on disputed facts as to the issuance of notice under section 67 (a) of the Kenya Roads Act.b.That the learned magistrate erred in law and fact in misconstruing the application of section 67 (a) of the Kenya Roads Act to the appellant’s claim for malicious prosecution which arose under the Traffic Act, Criminal Procedure Act and East African Community Vehicle Load Control Act.c.That the learned magistrate erred in law and fact in failing to address the liability of the respondents for the tort of malicious prosecution while they had been impleaded jointly and severally.d.That the learned magistrate erred in law and in fact in failing to assess and award damages to the appellant as against the respondents jointly and severally. 5.The appeal was disposed off by written submissions which have been duly considered. 6.This being a first appeal, the Court is duty bound to evaluate the evidence afresh and come to its own independent findings and conclusions but at all times having in mind that it did not have the advantage of seeing the witnesses testify. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. 7.The case before the trial court was that Pw1, the appellant adopted her statement dated 1/12/2022 as her evidence in chief wherein she reiterated her claim that she was maliciously charged and prosecuted with 3 counts relating to failing to carry the Kenya National Highways Wide Load Exemption Permit as well as the charge of dangerous loading. That she was subsequently acquitted for want of a prima facie case. 8.In cross-examination, she reiterated her claim and admitted that she failed to produce the Notice as required in section 67 (a) of the Kenya Roads Act. 9.Pw2, Salina Jelimo Cheruiyot adopted her statement dated 1/12/2022 as her evidence in chief wherein she had stated details as to the appellant’s arrest, the solicitation of Kshs. 1,200,000/- by an officer of the 1st respondent and the subsequent prosecution and acquittal of the appellant. 10.In cross-examination, she stated that she was not present when the appellant was arrested and that the details in her statement were based on information received from the appellant. That at no time did she appear in court on behalf of the appellant in her prosecution. 11.On their part, the 1st respondent called its employee, one Mboya Horace Onyango, as Dw1. He adopted his statement dated 6/12/2023 as his evidence in chief wherein he had detailed aspects of the appellant’s prosecution and the trial leading up to her acquittal. 12.In cross-examination, he told the court that he was a witness in the case against the appellant and that he failed to understand how she was acquitted though the 1st respondent had not appealed the ruling. 13.It is based on this evidence that the trial court arrived at its decision. I have carefully considered the grounds of appeal and the evidence on record. This appeal turns on the determination of whether the trial court erred in dismissing the appellant’s suit. 14.As earlier stated, the trial court dismissed the appellant’s suit on the ground that it lacked jurisdiction to entertain the same as the appellant failed to comply with section 67 (a) of the Kenya Roads Act that requires notice to be given to the Director of the 1st respondent prior to filing the suit. 15.Section 67(a) of the Kenya Roads Act is a mandatory procedural requirement. It states that no legal proceedings can be commenced against road authorities (such as KeNHA or KeRRA) unless a one-month written notice is served upon the Director-General, detailing the claim and the intention to file suit. To this Court’s understanding, there is no evidence that this provision has been challenged as being unconstitutional. Neither did the appellant contend as such. 16.For avoidance of doubt, the said section provides as follows: -“67.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…” 17.To this Court’s mind, this provision was intended to shield the authorities referred to from having to defend obvious legal proceedings and therefore reduce hemorrhage of public funds. The notice was intended to give the Director General an opportunity of either settling an obvious claim or give him time to consider the claim and if it is one to be settled without necessarily dragging the authority through a tedious legal proceeding that is avoidable, do so at the earliest before such claim was lodged., 18.In the present case, the appellant failed to produce evidence that she had complied with this provision. Indeed, she admitted as much and the trial court found as much. She attempted to introduce such evidence before this Court but the Court declined to accept it as the basis for introduction of new evidence on appeal was never satisfied. 19.It is a cardinal principle of the law of evidence as set out in section 107 to 109 of the Evidence Act that whoever asserts a fact has the burden of proving its existence in order to succeed. In other words, he who alleges must prove. The appellant failed to prove compliance with section 67 (a) of the Kenya Roads Act before the trial court. She neither contended that the same was in-applicable or was unconstitutional. 20.Accordingly, by failing to comply with section 67 (a) of the Act, the trial court was bereft of jurisdiction to entertain her claim and the only option was for the court to down its tools, as it correctly did. This was the holding of the Court of Appeal in the locus classicus case of Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] eKLR. In the circumstances and contrary to the appellant’s pleadings herein, the Court could not proceed to access the merits of the case or proceed to award any damages having found that it had no jurisdiction to entertain the matter. 21.The upshot of the above is that the appeal is found to be without merit and the same is dismissed with costs to the 1st respondent.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF JUNE, 2026.A. MABEYA, FCI ArbJUDGE