https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3144

Mwendwa & another (Suing as the Legal Representatives of the Estate of the Late Abrahim M'Kirera M'Ncau alias Abrahim M’Kirera M’Nchauu – Deceased) v Safaricom Plc & another (Environment and Land Case E020 of 2022) [2026] KEELC 3144 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3144 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Case E020 of 2022 BM Eboso, J May 20, 2026 Between Lucy Mwendwa & Joseph Murithi (Suing as the Legal Representatives of the Estate of the Late Abrahim M'Kirera M'Ncau alias Abrahim M’Kirera M’Nchauu – Deceased) Plaintiff and Safaricom Plc 1st Defendant Kenya National Highways Authority 2nd Defendant Ruling 1.On 3/11/2022, the estate of the late Abrahim M’Kirera M’Ncau alias Abrahim M’Kirera M’Nchauu [the estate] instituted this suit against Safaricom PLC [the 1st defendant], seeking the following verbatim reliefs:-a.A declaration that the deceased is the registered owner of LR No Ontulili/Ontulili Block I(Katheri)/503 measuring 1.412 Hectares (3.5 Acres) and the Defendant has trespassed thereon.b.Payment of:i.loss of user of the property at Kshs.220,000/= per year since the year 2016;ii.the market value of the property valued at Kshs.11,500,000/-;iii.the market value of the proposed developments valued at Kshs.75,000,000/=Alternatively to b (ii) and (iii) abovec.The defendant be ordered at its cost to demolish the transceiver and carry away its debris from LR No Ontulili/Ontulili Block 1(Katheri)/1530.d.An order of permanent injunction do issue restraining the defendant, its employees, agents, servants or anybody else claiming at the defendant’s behest or instructions from entering into, remaining, occupying, trespassing or in any other way whatsoever interfering with the plaintiff’s peaceful possession, user and enjoyment of LR No Ontulili/Ontulili Block 1(Katheri)/1530.e.Costs and interest 2.The estate alleged that the late M’Ncau [the deceased] was the registered proprietor of land parcel number Ontulili/Ontulili Block I (Katheri)/1530 measuring 1.4120 acres [the suit land], and that Safaricom PLC had trespassed onto the said parcel and had erected on it a base transceiver station covering 2960 square metres of the land. 3.Vide a defence dated 13/12/2022, Safaricom PLC contested the plaintiffs’ claim and contended that its base transceiver station had been constructed on land parcel number Timau/Timau Block 6 (Antu Ba Mwitu)/470 owned by Anna Wairimu who had leased the parcel to them. They urged the court to dismiss the claim. 4.Subsequent to that, Safaricom PLC brought a notice of motion dated 24/4/2024 seeking: (i) an order granting them leave to amend their defence; and (ii) an order granting them leave to join Kenya National Highways Authority (KENHA) as a party to the suit. This Court [Yano J] considered the application and allowed it on 8/10/2024. Upon the court issuing the joinder order, Safaricom PLC filed an amended defence in which they designated themselves as the 1st defendant and designated KENHA as the 2nd defendant. 5.Safaricom PLC averred in their amended defence that the impugned base transceiver station had been constructed within the boundaries of a designated road reserve along the old Nanyuki-Lewa Road and did not encroach upon the plaintiff’s land. They added that the above fact had been acknowledged and validated by KENHA. They reiterated their denial of trespass. 6.Upon being served with the suit papers, KENHA filed a notice of preliminary objection dated 18/11/2025. The notice of preliminary objection was subsequently amended on 26/1/2026. Through the amended preliminary objection, KENHA invited this court to strike out the claim against it on the following verbatim grounds:-1.That the 1st defendant did not give the 2nd defendant’s Director General at least one month’s written notice required under Section 67(a) of the Kenya Roads Act before joining the 2nd defendant to this suit.2.That the suit as filed is in contravention of the provisions of Section 67(b) of the Kenya Roads Act, No 2 of 2007.3.That this suit as against the 2nd defendant herein is incompetent and ought to be struck out, as the court has no jurisdiction to entertain it against the 2nd defendant and is otherwise an abuse of the process of this Honourable Court and should be dismissed in limine with costs. 7.The said preliminary objection is the subject of this ruling. It was canvassed through written submissions dated 26/1/2026, filed by M/s WANN LAW Advocates. Safaricom PLC opposed the preliminary objection through written submissions dated 13/4/2026, filed by Prof Musili Wambua & Co Advocates. The plaintiff took the view that the contest in the preliminary objection was between KENHA and Safaricom PLC and elected not to participate in the preliminary objection. 8.Canvassing the preliminary objection, counsel for the objector submitted that the two key issues that fell for determination in the preliminary objection were: (i) Whether the suit against KENHA should be struck out; and (ii) Who should bear costs of the suit. Quoting the definition of a preliminary objection by the Court of Appeal for East Africa in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, counsel for the objector submitted that the preliminary objection under consideration fitted the definition. Counsel argued that Section 67 of the Kenya Roads Act was a limitation framework, adding that a question of limitation was a preliminary issue that touched on the jurisdiction of the court. 9.Citing Section 67(a) of the Act, counsel submitted that the said section was couched in mandatory terms. Counsel added that the mandatory one month notice was not served upon KENHA prior to commencement of proceedings against it. Citing the pronouncement of the Court of Appeal in Michael Otieno Nyaguti & 2 others v Kenya National Highways Authority [2021] eKLR, counsel submitted that the plaintiffs were obligated under Section 67(a) of the Act to serve the 30 days notice to the Director-General of KENHA prior to filing the present suit. Counsel submitted that, in the absence of the statutory notice, the suit against KENHA stood to be struck out in tandem with the law as spelt out in the Michael Otieno Nyaguti Case (Supra). 10.Turning to Section 67(b) of the Kenya Roads Act and Section 3(1) of the Public Authorities Limitation Act, counsel submitted that as per the amended plaint dated 24/7/2025, the cause of action in this suit accrued in 2016. Counsel added that this suit having been filed in 2022 and the 2nd defendant having been joined to the suit on 24/7/2025, the claim against the 2nd defendant was statute-barred under the two legal frameworks. Counsel relied on the decisions in: (i) John Kibor Kipkorir (Suing as the Administrator of the Estate of William Kibor Ruto aka Chebor Ruto) v Kenya Rural Roads Authority (2017) eKLR; (ii) Sumac Development Company Limited v Kenya National Highways Authority & 2 Others (2017) eKLR; and (iii) Willmary Development ltd v The National Highways Authority [2020] eKLR. Counsel urged the court to strike out the claim against it. 11.On costs, counsel cited Section 27 of the Civil Procedure Act and the decision of the Supreme Court of Kenya in Rai & 3 others v Tarlochan Singh Rai & others (2014) eKLR and submitted that costs follow the event. Counsel urged the court to award KENHA costs of the suit. 12.Opposing the preliminary objection, Safaricom PLC identified the following as the three key issues that fell for determination in the preliminary objection: (i) Whether the 2nd defendant’s [KENHA] notice of preliminary objection is a proper objection in law; (ii) Whether the 1st defendant failed to issue a statutory notice to the 2nd defendant in violation of Section 67(a) of the Kenya Roads Act; and (iii) Whether this suit was filed in contravention of Section 67(b) of the Kenya Roads Act. 13.On whether the objection was a proper preliminary objection, counsel for the 2nd defendant cited the definition by the Court of Appeal for East Africa in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors (1969) EA 696 which the Supreme Court of Kenya adopted in Aviation & Allied Workers Union of Kenya v Kenya Airways Ltd & 3 others (2015) KESC 23 (KLR). Counsel argued that the objection under consideration was based on a contentious fact of whether a notice of intention to sue was served on the 2nd defendant. Counsel added that service of the application seeking joinder constituted proper service of notice of intention to sue within the meaning of Section 67(a) of the Act. Counsel added that the issue on whether service of the application was actually done and whether such service met the requirements of Section 67(a) of the Act was largely factual and called for proof through evidence, hence it was not an issue that could be canvassed through a preliminary objection. Counsel contended that the 2nd defendant’s objection was not based on an agreed upon or settled fact. Counsel urged the court to reject the objection on the above ground. 14.On whether the 1st defendant failed to issue a notice to the 2nd defendant in violation of Section 67(a) of the Act, counsel submitted that the 2nd defendant’s objection was grossly misadvised and was founded on a miscomprehension, misinterpretation and misapplication of Section 67(a) of the Act. Counsel argued that Section 67(a) strictly applied to institution of suits or commencement of legal proceedings against the 2nd defendant and did not apply to joinder of the 2nd defendant to ongoing proceedings under Order 1 rule 10(2) of the Civil Procedure Rules. Counsel pointed out that joinder could be at the instance of either a party or the court suo motto and could be done at any stage of the proceedings. Emphasizing on the use of the word “commence” in Section 67(a), counsel urged the court to distinguish between “commencement” and “joinder”. 15.Counsel for the 1st defendant further submitted that the objection failed to take into account that courts had severally held that failure to serve a notice under Section 67 (a) of the Act was not fatal to warrant the striking out of a suit. Citing the decisions in: (i) Mombasa Water Products Limited v Kenya National Highways Authority [2021] KEHC 238 (KLR); and (ii) Priscilla Ndunge Kiilu Machakos County Government & 2 others [2021] KEELC 4247 [KLR], counsel submitted that under the post – 2010 constitutional dispensation, failure to serve the 30 days’ notice was not a basis for striking out a suit. 16.Counsel added that even if the 1st defendant was required to serve a notice under Section 67(a) before making an application for joinder to ongoing proceedings, the requirement was merely directory and not mandatory. Citing the decision of the High Court in R v Kenya National Highways Authority Ex-parte Tangerine Investments Limited (2017) KEHC 9451 (KLR), counsel submitted that there was no mandatory requirement for issuance and service of notice prior to a plea for joinder. 17.On whether the suit offended Section 67(b) of the Kenya Roads Act, counsel for the 2nd defendant submitted that the objection was based on a misinterpretation of the above framework. Counsel argued that the law did not provide for any specific timelines within which the 2nd defendant was to be joined to ongoing proceedings as a necessary party for the effectual and complete adjudication of all the issues in a dispute. Counsel argued that joinder of the 2nd defendant was governed by the established law and principles on joinder of parties to an existing suit, adding that joinder of a party to an existing suit may be done at any stage to avoid a multiplicity of suits and to ensure the effectual and conclusive determination of all the questions at hand. Counsel submitted that Section 67(b) could not be used to defeat the purpose of joinder in proceedings where the 2nd defendant was a necessary party. Counsel added that, in any case, the applicable law on limitation in claims relating to land was Section 7 of the Limitation of Actions Act. Counsel urged the court to reject the preliminary objection. 18.The court has considered the preliminary objection and the rival submissions tendered by the two parties. The court has also considered the relevant legal frameworks and the prevailing jurisprudence on the questions that fall for determination in the preliminary objection. The following are the key issues that fall for determination in the preliminary objection: (i) Whether the amended notice of preliminary objection dated 26/1/2026 meets the threshold of a preliminary objection; (ii) Whether joinder of the 2nd defendant to these proceedings contravenes Section 67(a) of the Kenya Roads Act; and (iii) Whether joinder of the 2nd defendant to these proceedings contravenes Section 67(b) of the said Act. 19.Does the amended notice of preliminary objection dated 26/1/2026 meet the threshold of a preliminary objection? The threshold of a preliminary objection was outlined by the Court of Appeal for East Africa in Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696 as follows: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 an objection to the Jurisdiction of the court or a 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. 20.Sir Charles Newbold, P, rendered himself as follows in the same case:A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...” 21.The Supreme Court of Kenya, in Hassan Ali Joho & another vs Suleiman Said Shahbal & 2 others SCK Petition No 10 of 2013, reiterated the above threshold in the following words:A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which is argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a 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…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 fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 22.In the present objection, the 2nd defendant [the objector] contends that the claim against the 2nd defendant should be struck out because the mandatory statutory notice required under Section 67(a) of the Kenya Roads Act was not served. On its part, the 1st defendant contends that a notice under Section 67(a) of the Roads Act was not necessary in a scenario of joinder to ongoing proceedings. The 1st defendant adds that, if such notice was necessary, service of the application relating to the plea for joinder of the 2nd defendant to these proceedings constituted a notice under Section 67(a) of the Act. The court notes that there was no denial of service of the said application on the 2nd defendant. There was also no allegation of service of any other notice under Section 67(a) of the Act. 23.This Court [Yano J] heard and disposed the plea for joinder of the 2nd defendant on the premise that all the affected parties had been properly served with the application inviting them to participate in the application. It therefore emerges that no contested factual propositions that require ascertainment through evidence have been disclosed in the key aspects of the preliminary objection. 24.Secondly, the points raised in the preliminary objection under consideration revolve around the applicability of Sections 67(a) and (b) of the Kenya Roads Act in relation to joinder of KENHA to ongoing court proceedings. The issues raised in the preliminary objection do not require further ascertainment through evidence. For the above reasons, the court finds that the substantive points raised in the objection dated 26/1/2026 properly meet the threshold of a preliminary objection. 25.Does joinder of the 2nd defendant to these proceedings contravene the requirements of Section 67(a) of the Kenya Roads Act? The said framework 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.” 26.The prevailing general jurisprudence on construction of Section 67(a) of the Kenya Roads Act was outlined by the Court of Appeal in Michael Otieno Nyaguti & 2 others v Kenya National Highways Authority (2021) eKLR to the effect that, where one intends to commence legal proceedings against any of the agencies established under the Kenya Roads Act, he must serve the one-month notice to the Director-General of the agency. Failure to serve the one-month notice is fatal. 27.The legal framework is, however, silent on a scenario where there is no claim against the agency but a court of law seized of a dispute orders joinder of the agency to ongoing proceedings after the court comes to the conclusion that the agency is a necessary party in the proceedings for the purpose of the effectual and complete adjudication and settlement of all the questions that are involved in the ongoing proceedings. The present preliminary objection invites the court to interrogate and make pronouncements on this particular scenario. 28.This suit was initiated by the estate of the late M’Ncau against Safaricom PLC on 3/11/2022. The 2nd defendant was joined to the suit following a joinder order issued by the Court [Yano J] on 8/10/2024. The court has looked at the pleadings before it. The plaintiff did not and does not have a specific claim against the 2nd defendant. The 1st defendant [Safaricom PLC] ,too, does not have a specific claim against the 2nd defendant. The only reason why the 2nd defendant was made a party to the suit is that, through exhibited formal communication between them and Safaricom, they asserted that the latter’s base transceiver station sits on a road reserve under its management. They also asserted through the exhibited communication that the title which the estate of the late M’Ncau is waving relates to a road reserve under its management. Given the above circumstances, the court exercised jurisdiction under Order 1 rule 10(2) of the Civil Procedure Rules and ordered joinder of the 2nd defendant to this suit on 8/10/2024. 29.The 2nd defendant argues that because the joinder was not preceded by a 30-day notice, the suit against them is fatally defective and should be struck out. As pointed out, there is no specific claim (suit) against the 2nd defendant. The 2nd defendant was joined to this suit under Order 1 rule 10(2) of the Civil Procedure Rules because the court was satisfied that they were a necessary party for the purpose of effectually and completely adjudicating and settling all the questions involved in the suit. Some of the questions are: (i) Whether the title held by the plaintiff relates to a road reserve; (ii) Whether the 1st defendant’s base transceiver station is located on the road reserve; and (iii) Whether the 1st defendant’s base transceiver station is located on private land belonging to the estate of the late M’Ncau [the plaintiff]. 30.A party joined to proceedings pursuant to an order of the court under Order 1 rule 10(2) joins existing proceedings. He is joined to existing proceedings because the court considers him to be a necessary party for the effectual and complete adjudication and settlement of all the issues that are involved in the suit. The 2nd defendant being one such party, I do not think failure to serve on its Director-General the notice contemplated under Section 67(a) of the Act invalidates the joinder. 31.Even if a notice under Section 67(a) was a mandatory requirement for the purpose of joinder to subsisting proceedings, in the absence of evidence of any specific statutory form relating to the notice, service of the application dated 24/4/2024 which sought KENHA’s joinder to the suit was, in my view, proper notice under the said section. I say so because the purpose of the notice is to give KENHA additional time to gather information and materials relating to the intended claim. That purpose was properly served when the application seeking KENHA’s joinder was served on the applicant. Consequently, the finding of the court on the second issue is that joinder of the 2nd defendant to these proceedings which were ongoing did not and does not contravene Section 67(a) of the Kenya Roads Act. 32.Does joinder of the 2nd defendant to these proceedings contravene Section 67(b) of the Kenya Roads Act? First, there is no claim against KENHA at this point. One cannot therefore say that the cause of action against KENHA arose on a particular date prior to their joinder. One cannot, similarly, say the limitation period in relation to KENHA started running on a particular day and lapsed on a particular day. Consequently, the finding of the court on the third issue is that joinder of KENHA to these proceedings did not and does not offend Section 67(b) of the Kenya Roads Act. 33.On costs, the preliminary objection raised novel issues relating joinder of KENHA to ongoing proceedings. The court has not come across identical issues or any decision relating to the application of Section 67(a) and (b) of the Kenya Roads Act to ongoing proceedings in the context of Order 1 rule 10(2) of the Civil Procedure Rules. For this reason, there shall be no award of costs at this point. 34.In the end, the preliminary objection dated 18/11/2025 and amended on 26/1/2026 is rejected and dismissed for lack of merit. Costs of the preliminary objection shall be in the cause. DATED, SIGNED AND DELIVERED AT MERU THIS 20TH DAY OF MAY, 2026.B M EBOSO [MR]JUDGE