Adawo v Egis Kenya Limited Kisii - Isebania Road & 3 others (Environment and Land Miscellaneous Application E004 of 2024) [2026] KEELC 368 (KLR)
The bottom line
#A landowner suing Kenya National Highways Authority lost his entire case because he skipped a mandatory one-month notice and sued too late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Further Amended Plaint dated 15th February 2022 offends the provisions of Section 67(a) of the Kenya Roads Act (non-service of the one-month notice of intended legal proceedings)
- 2.Whether the suit against the 3rd Defendant is time-barred by virtue of Section 67(b) of the Kenya Roads Act
- 3.Whether, absent a suit against the 3rd Defendant, a cause of action can be sustained against the 1st, 2nd and 4th Defendants
Key legal issues
#Whether the preliminary objection is a pure point of law
Yes - the objection under Sections 67(a) and 67(b) of the Kenya Roads Act raises pure points of law without ascertaining facts, in line with Mukisa Biscuit.
The court adopted the classic definition in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors that a preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit, and cannot involve ascertaining facts. The Court of Appeal in Michael Otieno Nyaguti confirmed that non-compliance with Section 67(a) is a pure point of law resolvable by construction of the section alone.
Whether the notice requirement under Section 67(a) was complied with
No - no notice was pleaded or served; the requirement is mandatory.
Section 67(a) requires written notice containing particulars of the claim to be served on the Director-General at least one month before commencing proceedings. The plaintiff did not plead service of such notice and produced no evidence of it. Relying on Sumac Development Company Limited, the word 'shall' makes the requirement mandatory. Non-compliance alone would have warranted dismissal of the suit.
Whether the suit against the 3rd Defendant was time-barred
Yes - the trespass complained of began in November 2021 and was not pleaded as continuing; the 3rd Defendant was only sued on 9th March 2023, beyond the 12-month limit.
Section 67(b) requires actions against the Authority to be instituted within twelve months of the act, or within six months of cessation of a continuing injury. The pleadings showed the trespass ended when the road was created over the property, and the plaintiff did not plead a continuing injury. Joinder of the 3rd Defendant occurred only in March 2023, well outside the limitation period, divesting the court of jurisdiction over it.
Whether a cause of action was disclosed against the 1st, 2nd and 4th Defendants
No cause of action was disclosed against any of them.
The 1st Defendant's alleged role was confined to professional consultancy independent of the trespass, attracting no privity with the plaintiff. The 4th Defendant was sued as a trespasser acting on the instructions of the 2nd and 3rd Defendants, and cannot be liable in isolation once the suit against the 3rd Defendant failed. The plaintiff did not plead how the 2nd Defendant (whose mandate was undisclosed) was involved, nor whether the road was a county or national government one, so no cause of action was disclosed against it either.
Legal principles established
#- Compliance with Section 67(a) of the Kenya Roads Act - service of at least one month's written notice on the Director-General - is mandatory and its absence renders a suit against the Authority untenable.
- A suit against the Kenya National Highways Authority must be instituted within twelve months of the act complained of, or within six months of cessation of a continuing injury, under Section 67(b) of the Kenya Roads Act.
- A professional adviser procured independently of a subsequent trespass cannot be liable to a third party affected by the actions of the consumer of the advice, for want of privity of contract.
Court orders
#- 1.The 3rd Defendant's Preliminary Objection dated 22nd March 2023 succeeds
- 2.The entire suit is struck out
- 3.No order as to costs to the other parties except the 3rd Defendant, which should be paid costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act (invoked by the plaintiff); preliminary objection raised under Section 67 of the Kenya Roads Act, 2007
Relief refused
#The plaintiff's suit against all defendants (trespass claim over his land)
Non-compliance with the mandatory notice requirement under Section 67(a) of the Kenya Roads Act; suit against the 3rd Defendant time-barred under Section 67(b); no cause of action disclosed against the 1st, 2nd and 4th Defendants
Costs
No order as to costs to the other parties except the 3rd Defendant, which should be paid the same (costs of the preliminary objection).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises, the Preliminary Objection succeeds. The entire suit is struck out, with no order as to costs to the other parties except the 3rd Defendant which should be paid the same.
It follows that compliance with Section 67 is mandatory and it was not complied with.
Having enjoined or sued the applicant in March 2023 when summons to Enter Appearance were issued upon filing the Amended Plaint, it follows that the suit against the 3rd defendant is time-barred.
This is because there is no privity of contract between the professional who gives the advice and a party afiected by the consumer of the service.
It means that the 4th Defendant’s actions cannot be a violation in a vacuum.
Issues in the judgment
#The judgment refers to the 3rd Defendant inconsistently, once as 'the Kenya Highways Authority' and elsewhere as Kenya National Highways Authority established under Section 3 of the Roads Act.
The judgment states the 3rd Defendant 'is created by Article 167 of the Constitution' which does not correspond to the cited Section 3 of the Kenya Roads Act.
The ruling is dated 22nd January 2026 although the preliminary objection was heard following submissions dated mid-2023, and the case number/caption is not reproduced in the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adawo v Egis Kenya Limited Kisii - Isebania Road & 3 others (Environment and Land Miscellaneous Application E004 of 2024) [2026] KEELC 368 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/368/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.