[2023] KEHC 23236 (KLR)

Republic v Kenya Urban Roads Authority (KURA); Vivo Energy Kenya Limited & another (Interested Parties); Raghvani Investments Limited (Exparte) (Judicial Review Application E165 of 2022) [2023] KEHC 23236 (KLR) (Judicial Review) (6 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23236 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E165 of 2022

J Ngaah, J

October 6, 2023

Between

Republic

Applicant

and

Kenya Urban Roads Authority (KURA)

Respondent

and

Vivo Energy Kenya Limited

Interested Party

East African Swaminarayan Temple

Interested Party

and

Raghvani Investments Limited

Exparte

Judgment

1. The applicant’s application is a motion dated 6 February 2023 expressed to be filed under order 53, Rule 4(1) of the Civil Procedure Rules and section 8 & 9 Law Reform Act, cap. 26. The orders sought have been couched as follows:1. An order of certiorari to remove to this Honourable Court to be quashed the Decision of Kenya Urban Roads Authority (KURA) the Respondent made on April 16, 2020 refusing/ declining the application by the applicant to construct a standard exit from its premises on LR. Nos. 209/ 13257 /4 and 209/ 13257 /6 & 8 Laxcon Plaza and Laxcon Court respectively for access to Parklands Road in safety and convenience.2. An order of mandamus to compel the 1st respondent to authorize and approve the construction of a standard exit as objectively proposed by the applicant for exit and access to the service road leading to Parklands Road from its premises on LR. Nos. 209/13257/4 and 209/ 13257 /6 & 8 Laxcon Plaza and Laxcon Court respectively.3. an order of prohibition to restrain the Respondent by itself, its agents or persons acting on its behalf from acting in a manner that violates the Applicants right to property guaranteed under article 40 of the Constitution of Kenya and an order of prohibition restraining the Respondent by itself, its agents or persons acting on its behalf from acting in relation to the ex-parte Applicants' said parcels of land in a manner that contravenes the Constitution of Kenya;4. Damages.5. Costs of this Application.”

2. The motion is based on a statutory statement dated 17 November 2022 and an affidavit sworn on even date by Arvind Raghwani, verifying the facts relied upon.

3. According to Raghwani, the applicant is the registered proprietor of LR. Nos. 209/13257 /4 and 209/ 13257 /6. On these two parcel sit two developed properties described as “Laxcon Plaza” and “Laxcon Court” respectively. The main access to the buildings is Swaminarayan Road which is alleged to loop back onto Laxminarayan Road then to Parklands and Taarifa Road. This, it is alleged, makes it difficult to access the premises. A more convenient access to and exit from the premises would be a direct link to Parklands Road.

4. It is deposed further that the applicant’s representative has held several meetings with the respondent's officers over the issue. On one of these occasions, in particular on 23 June 2020, the respondent informed the applicant that entry to the Thika Super Highway was restricted and not within the respondent’s jurisdiction. The respondent also required the applicant to provide a design of exit to Parklands Road through a petrol service station owned by the interested party apparently after it was intimated that interested party was open to having the applicant exit its premises through the interested party’s property.

5. The applicant provided the necessary design and engaged the respondent for approval but to no avail.

6. Initially, the applicant had approached Kenya National Highways Authority (KENHA) with the request to be authorised to use the exit along Narayan Road. KENHA advised that it was not possible to do so. It instead asked the applicant to engage the interested party for an exit through its land.

7. The application is opposed and Eng. Joseph Kimanthi Kivanguli swore a replying affidavit to that end. Kivanguli states that the respondent is a state agency under the National Government and that it is charged with the responsibility of managing, maintaining, rehabilitating, developing and construction of national trunk roads within the urban areas of the Republic of Kenya. In line with this mandate, the respondent has statutory ownership and superintendence over the road corridors and their reserves under its mandate, and anyone wishing to undertake or conduct anything on, under or over those spaces or gain access to them must obtain the respondent’s prior approval or concurrence.

8. While it is true that the applicant has property abutting a highway, it cannot access the highway directly for safety reasons. The nearest access road is Parklands road and which is a road within the jurisdiction of the respondent authority. However, sitting between Parklands road and the applicant’s property is the interested party’s land.

9. The parties filed written submissions in support of the respective positions they have adopted. One issue that they appear to have all missed and which ought to be addressed as a preliminary point is whether, in filing this suit, the applicant complied with section 67 of the Kenya Roads Act, 2007 that defines the limitation period within which legal proceedings may be taken against the respondent after the event complained of and the requisite step that the applicant must take before initiating such proceedings. This section reads as follow67. Limitation of actions67. 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.

10. There is no dispute that the respondent is one of the authorities contemplated under section 67 because according to section 2 of the Kenya Roads Act, “authority” is defined to mean “the Highways Authority, the Rural Roads Authority or the Urban Roads Authority”.

11. There is also no dispute that the respondent’s decision contained in the impugned letter of 16 April 2020 is a decision that was taken by the respondent in execution of its mandate under the Act. It is, in the language of the Act, an act done in pursuance of or in execution of a public duty imposed upon the respondent.

12. The Act complained of, as noted, is the respondent’s letter dated 16 April 2020 according to which the respondent declined the applicant’s application to access Parklands road through Narayan Road although the applicant denies that that was its request. The impugned letter read as follows:Raghvani Investments LimitedPO Box 44706NairobiDear sir/madamRE: Request For Access Walk Path Along Parklands Road From Our New Buildings Towards Shell Petrol Station, Parklands RoadReference is made to your letter dated 3rdApril, 2020 on the above subject. Narayan Road is part of the Thika Super Highway and as such is trafficked by a large volume of vehicles. Because of this factor, direct entry onto the road is restricted, therefore your request for direct entry onto the highway is hereby denied.You are advised to use the designated access that you have been using, namely Swaminarayan and Laximinarayan Roads.Yours faithfullySignedEng. Silas M. KinotiAg. Director General”

13. If this letter is the cause of the applicant’s grievances, then, according to section 67 (b) of the Act, this suit ought to have been filed by 16 April 2021, assuming that the letter was delivered or received on the date it was written. There is no evidence, and neither has it been suggested that the letter may have been brought to the attention of the applicant on any other date.

14. Having been filed more than twelve months after the cause of action arose, there should be no debate that the suit was filed out of time.

15. Secondly, even if it was to be assumed that the suit was filed within time, it has not been proved that the applicant complied with section 67(a) and served the respondent’s director general with the requisite notice containing the particulars of the claim and the applicant’s intention to commence the action or legal proceedings.

16. On these two grounds the applicant’s application would fail.

17. But there is one more reason why it would not succeed. According to section 9(3) of the Law Reform Act, cap. 26, an application for the order of certiorari can only be made within six months after the date of the proceeding or decision complained of.

18. This section reads as follows:In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

19. This provision of the law is replicated in Order 53 rule 2 of the Civil Procedure Rules which states as follows:Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

20. As earlier noted, the decision complained of was made on 16 April 2020. Time for seeking a quashing order started running on this particular date. The instant suit was initiated in November 2022, more than two years after the lapse of the limitation period.

21. I need not go into the merits of the applicant’s application having found that it is incompetent but, assuming that it was properly before court, I would have found the applicant’s arguments to be somewhat self-defeatist. I say so because in as much as the applicant has stated that it was not always its intention to access the highway directly from its property, it has been admitted that the applicant had initially approached the Kenya National Highways Authority to exit its property through Narayan Road. To quote Raghwani in his affidavit:12. That it is evident from our letter dated 3rd April 2020-above cited (A.R.5-a) that we explained to the respondent that we had approached KENHA requesting to be allowed to use exit along Narayan road.13. That KENHA had advised that it was not possible to exit along the said Narayan road, and instead advised us to approach our neighbours VIVO Energy (the 1st interested party) for an exit through their land.14. That the applicant had gone to an extend (sic) of obtaining from the survey of Kenya officers survey maps to confirm that the property which we proposed to use and which we are seeking approval belongs to VIVO Energy with no road reserve.16. That the respondent chose to ignore the contents of our request in that we sought not to exit directly to the highway via Narayan road or otherwise as stated in the refusal letter, but that our application was for approval to use the 1st interested party’s property onto Parklands road and in no way accessing the highway.

22. Certainly, the respondent cannot be compelled to authorise the applicant to claim rights of egress or ingress over private property which, by its very nature, is not within the jurisdiction of the respondent. A court of law would not do that either.

23. In any event, the 1st interested party, on whose land the applicant wants to egress and ingress, has come out strongly asserting its rights over its property and, in the same breath, disputing the applicant’s claim that the 1st interested party has acceded to the applicant’s attempts to use its land to access and exit from its property.

24. In a replying affidavit sworn by Naomi Assumani, the 1st interested party’s legal counsel and manager in Kenya, it has been deposed, on behalf of the 1st interested party, inter alia, as follows:4. That Vivo is the registered owner of all that property known as Land Reference Number 209/13257/2 whereon it runs a branded shell service station.5. That with the expansion of the road network around the area, Vivo would not sanction the use of its property in a way that would conflict with the statutory and regulatory powers donated to the respondent.6. That the orders sought herein have the effect of permanently affecting the private property rights of Vivo given that the respondent does not have any interest in all that property known as Land Reference Number 209/13257/2. 7.That this court cannot be asked to issue what is in essence a mandatory injunction that permit the ex parte applicant to, without a legal instrument, acquire an interest in Vivo’s property.

25. Besides the fact that there is no basis for the assumption that the respondent could possibly permit creation of an access road over the 1st interested party’s land, it is clear from these depositions that, contrary to the picture presented by the applicant, the 1st interested party would not allow its property to be used to access or exit the applicant’s property. Without any concrete agreement between the applicant and the 1st interested party over the use of the latter’s property, there would be no foundation upon which the applicant may seek an order, that in effect, would compel the respondent to perform a public duty the execution of which either depends upon the consent of a third party or would lead to infringement of a third party’s rights.

26. As I have already found, the applicant’s application is misconceived, incompetent and an abuse of the process of this Honourable Court. It is dismissed with costs.

SIGNED, DATED AND DELIVERED ON 6 OCTOBER 2023NGAAH JAIRUSJUDGE