Josephat K. Kyambia, Onsemus M. Kongo, Rebecca J. Mwalimu, Onsemus K. Muthami, Kanini Malombe, Jackson K. Wambua, Bernard K. Musango, Joshua M. Kitindio, Francis K. Kituku, Father Jeremiah Mutuku & Julius K. Nzinga v Kenya National Highways Authority, Attorney General & Sinohydro Corporation Limited [2021] KEELC 3874 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. PETITION NO. 20B OF 2020

JOSEPHAT K. KYAMBIA...........................................1ST PETITIONER

ONSEMUS M. KONGO ............................................2ND PETITIONER

REBECCA J. MWALIMU...........................................3RD PETITIONER

ONSEMUS K. MUTHAMI..........................................4TH PETITIONER

KANINI MALOMBE...................................................5TH PETITIONER

JACKSON K. WAMBUA...........................................6TH PETITIONER

BERNARD K. MUSANGO ........................................7TH PETITIONER

JOSHUA M. KITINDIO.............................................8TH PETITIONER

FRANCIS K. KITUKU ...............................................9TH PETITIONER

FATHER JEREMIAH MUTUKU ..............................10TH PETITIONER

JULIUS K. NZINGA.................................................11TH PETITIONER

VERSUS

KENYA NATIONAL HIGHWAYS AUTHORITY....1ST RESPONDENT

THE ATTORNEY GENERAL...................................2ND RESPONDENT

SINOHYDRO CORPORATION LIMITED..........3RD  RESPONDENT

RULING

1. In the Notice of Preliminary Objection dated 20th August, 2020, the 1st Respondent averred that the Petitioners’ Application and Petition are fatally defective and that the Petitioners have not complied with Section 67(a) of the Kenya Roads Act requiring the giving of a thirty (30) days’ notice to the Director General prior to filing of the suit.

2. The 1st Respondent averred that the Application and the Petition is one whose subject matter is the boundary dispute within Ikutha Market abutting the Kibwezi-Kitui Road; that the Petition was filed prematurely and that the Petition offends Section 18(2) of the Land Registration Act.

3. The 1st Petitioner filed a Further Affidavit in which he deponed that the Preliminary Objection is frivolous, vexatious and an abuse of the court process; that the Petition is based on infringement of the rights of the Petitioners by the Respondents by compulsorily taking privately owned land and that the 1st Respondent was duly notified by the Petitioners of their grievances vide a letter dated 18th May, 2020.

4. The Preliminary Objection proceeded by way of submissions. The 1st Respondent’s counsel submitted that the Petition was filed without having served the Director General of the Defendant with the requisite and mandatory one month’s notice and that the email annexed on the Petitioners’ Affidavit is not a notice contemplated under Section 67(a) of the Kenya Roads Act.

5. In his submissions, the Petitioners’ advocate submitted that the 1st Respondent’s Director General was duly served with the notice as contemplated under Section 67(a) of the Kenya Roads Act; that Section 67(a) of the Act does not give a specific format on how the notice ought to be drafted and that the issue raised by the 1st Respondent is not a pure point of law.

6. The Petitioners’ counsel submitted that the Petition does not relate to a boundary dispute and that the Petition is seeking for a remedy as a result of violation of the Petitioners’ constitutional rights of protection of the right to property under Article 40 of the Constitution.

7. In the Petition dated 10th August, 2020, the Petitioners averred that the 1st Respondent issued a gazette notice and changed the original size of Kibwezi- Kitui Road from Class B road to Class A; that as a result of the said change, the road expanded into private properties and that the 1st Respondent agreed to acquire land for the construction of the road.

8. The Petitioners further averred that the 1st Respondent has served them with notices indicating that they have encroached on the road reserve; that the 1st Respondent seeks to arbitrarily acquire the land which they lawfully acquired and that the 1st Respondent’s action is illegal and unconstitutional.

9. In a nutshell, the issue for determination before this court is whether by changing the Kibwezi-Kitui Road from Class A to Class B, the 1st Respondent has arbitrarily acquired the Petitioners’ land. That issue cannot amount to a boundary dispute contemplated under Section 18 of the Land Registration Act.

10. Although the 1st Respondent has argued that the Petitioners did not serve the Director General with a notice contemplated under Section 67(a) of the Kenya Roads Act, the Petitioners have annexed on their Further Affidavit an email referenced as “Encroachment of Surveyed Private Land by KeNHA at Ikutha Market.”Whether the said email meets the requirements of Section 67(a) of the Act can only be ascertained at trial. That being the case, the Notice of Preliminary Objection does not meet the threshold of a Preliminary Objection as enunciated in the case of Mukisa Biscuit Manufacturers Ltd vs. West End Distributors Ltd (1969) EA 696.

11. For those reasons, I find the Notice of Preliminary Objection to be unmeritorious. The Notice of Preliminary Objection dated 20th August, 2020 is dismissed with costs to the Petitioners.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 19TH DAY OF MARCH, 2021.

O.A. ANGOTE

JUDGE